ANJANI KUMAR, J. - (1.) THIS writ petition was heard by this Court and after hearing the petitioner, who appeared in person as well as learned Counsel appearing on behalf of the respondents, the same was dismissed on 26th August, 2004 for the reasons to be recorded later on. Now here are the reasons for dismissing the aforesaid writ petition.
(2.) THE facts leading to the filing of present writ petition are that the petitioner -respondents are to springs of two wives of Late Hari Shanker Vidyarthi. Mrs. Rama Vidyarthi, who was subsequently substituted by respondents 1 and 2 as plaintiffs, filed suit No. 37 of 1969 under Section 6(1) of the Specific Relief Act, 1963 with the allegation that the plaintiff and defendant No. 1, namely Mrs. Rama Vidyarthi and Mrs. Savitri Vidyarthi, both are the wives of Late Hari Shanker Vidyarthi, who died on 14th March, 1955. The defendant No. 2, petitioner in the present writ petition, is the son of defendant No. 1 and defendant No. 3 is the wife of defendant No. 2. It is further alleged that the plaintiff is the sole owner in possession of house No. 7/89, Tilak Nagar, Kanpur, having purchased it by registered sale deed, dated 27th September, 1961 and having been in continuous undisturbed possession thereof till 26th July, 1968. In the year 1961, when the bungalow No. 7/89, Tilak Nagar, Kanpur was purchased by the plaintiff, then at the request of the defendants No. 1 and 2, the plaintiff allowed the said defendants, petitioner and respondent No. 3 in the present writ petition, to continue to live in the said house as licensees at the will of the plaintiff, who is now represented by respondents 1 and 2 in the present writ petition. In the year 1966, the defendant No. 2, petition in this writ petition, started practice as an Advocate and alter on he was married in the year 1967 to defendant No. 3, now respondent No. 3 in the present writ petition and after their marriage the defendants decided to settle at Allahabad where the defendant No. 2 wanted to set up his practice. The defendants wanted to partition of all the family movables, consequently stocks of all the properties left by plaintiff's husband, namely, Late Hari Shanker Vidyarthi, were taken and the defendants having satisfied themselves as regard the share and having taken the same vacated the said house. It is further alleged that defendants No. 2 and 3 started living separately since October, 1967 and after December, 1967, they never lived in the said house i.e. 7/89, Tilak Nagar, Kanpur. The defendant no 1, mother of respondents No. 1 and 2 also left Kanpur and want to Allahabad to join her son and daughter -in -law and they finally left the said house in the year March, 1968. The petitioner and respondent No. 3 with a view of bolster a claim for a share in the property of the plaintiff made a forcible entry in the plaintiff's aforesaid bungalow No. 7/89, Tilak Nagar, Kanpur on 26th July, 1968 by breaking open the locks with the help of several persons and forcibly occupied two rooms of the front northern side in the said house. The plaintiff lodged a report to the police on the same day through her daughter and requested the defendants to vacate the said two rooms, which they had forcibly and wrongfully occupied, but the defendants instead of vacating the said two rooms began to threaten the plaintiff with dire consequences and also attended to extend their forcible occupation to other portion of the said bungalow. With a view to safeguard her rights and to protect herself from the unlawful acts of the defendant, the plaintiff was compelled to seek help of police and a constable was posted in the aid premises from the night of 26th July, 1968 to the morning of 14th August, 1968. The defendant No. 1 petitioner instead of vacating the said house filed a civil suit in the Court of II Civil Judge, Kanpur and obtained an ad interim injunction from the learned Court on 1st August, 1968 against the plaintiff -mother of respondents No. 1 and 2, which was served on the plaintiff on 3rd August, 1968, to the effect that the defendants of the suit, namely, the mother of respondents No. 1 and 2 is restrained from interfering with the plaintiff's peaceful possession over the property in dispute forcibly occupied by them. The defendants have no right, title or interest whatsoever to remain in the two rooms aforesaid or to enter the premises No. 7/89, Tilak Nagar, Kanpur. The occupation of the defendants is unlawful and the plaintiff has been dispossessed, otherwise then in due course of law of the two rooms aforesaid described detail at the foot of the plaint without her consent and is entitled to recover possession under Section 6 of the Specific Relief Act, 1963. The aforesaid suit No. 37 of 1969 was filed by the plaintiff with the following prayers: (i) A decree for ejectment of the defendants and delivery of possession to the plaintiff of the two rooms of premises No. 7/89, Tilak Nagar, Kanpur bounded as below: North - Open set back occupied by the plaintiff. South - Room occupied by the plaintiff. East - Verandah West - Rooms occupied by the plaintiff. (ii) Cost of this suit. (iii) Any other relief as this Hon'ble Court deems fit.
(3.) THE aforesaid suit No. 37 of 1969 filed under Section 6(1) of the Specific Relief Act was decreed ex -parte on 14th February, 1976. On 23rd February, 1976, the decree holder filed execution case No. 4 of 1976 for the execution of the decree passed in suit No. 37 of 1969. An objection under Section 47 of the Code of Civil Procedure was filed on the ground that the decretal two rooms are not identifiable. The executing Court vide its order dated 27th May, 1988 rejected the objection filed under Section 47 of the Code of Civil Procedure by the present writ petitioner. Aggrieved thereby, the petitioner filed revision No. 150 of 1988. During the pendency of revision No. 150 of 1988, on 9th January, 1989, the decree -holder and the judgment debtors agreed on -the following terms: NIGRANI Kl SUNWAI KE DAURAN NIMN NYAYALAY KE AADESH KE DAURAN HI DINANK 6 -1 -1989 KO DECREEDAR PRATIPACHHI KE ADHIWAKTA AUR NIGRANIKARTA NE SAPATHPATRA KE SANLAGNA MANCHITRA 19/7G KE SANDARBH MEN YAH SWIKAR KAR LIYA Kl DECREE KARMA 'C' AUR 'D' PAR DAKHAL KE LIYE HI PARIT HUI THI AUR TATSAMBANDH MEN HI NISPADAN LAMBIT HAI. IS PRAKAR NIGRANIKARTA Kl YAH APATTI SAMAPT HO JATI HAI Kl DECREE GYEY AUR SPAST NAHI HAI. ;