HAMID KHAN ANSARI Vs. LILABAI

JUDGEMENT

(1.) THIS First Appeal arises out of the order passed by the Additional District Judge, Agar, in Execution Case No. 39/98 pending between respondent Nos. 1 to 3 and respondent Nos. 4 to 11 herein who are decree holders and judgment debtors respectively.

(2.) FEW facts those are relevant for disposal of this appeal are as under :-- Predecessor in title of respondent Nos. 1 to 3 Mukundram filed a suit for specific performance of contract in respect of an open piece of land admeasuring 19 x 49 ft. situated on Survey No. 191, in Village Soyatkalan, Tehsil Agar, District Shujalpur. The suit was instituted on 1-8-1990. Trial Court decreed the suit on 23-7-97, Against the judgment and decree predecessor in title of respondent Nos. 4 to 11 Balchand filed a First Appeal No. 330/97 in this Court and obtained a stay order. This Court on 1-8-2001 ultimately dismissed First Appeal. Upon dismissal of the appeal the execution proceedings started. Despite deposit of balance consideration and upon failure of respondent Nos. 4 to 11 to execute a sale deed in favour of respondent Nos. 1 to 3, on 14-2- 2003 the Executing Court executed the sale deed in favour of respondent Nos. 1 to 3. Possession warrant issued by Executing Court for delivery of vacant possession of suit land was obstructed by the judgment debtors particularly the female members as a result possession could not be delivered to the respondent Nos. 1 to 3. On 15-9-2003 an application was moved on behalf of present appellant contending inter alia that he had forcibly dispossessed Balchand about 17-18 years ago and had constructed a garage on the portion of land admeasuring 15 x 12 ft. and since then is running a garage. Appellant also claimed that on account of hostile possession, he has acquired title over the portion of land admeasuring 15 x 12 ft. by adverse possession. Appellant, therefore, filed application under Order XXI Rule 97 and claimed adjudication of his right to protect his possession. A detailed reply to the said application on affidavit was filed on behalf of respondent Nos. 1 to 3 denying the claim of appellant. It may be noticed that the application filed by the appellant was not supported by any affidavit, therefore, upon getting reply of respondent Nos. 1 to 3, appellant became wise and filed an affidavit on 27-9-2003. After hearing learned Counsel for parties Court below rejected the application holding that the appellant has made out no case for any enquiry and adjudication, and the application filed is wholly frivolous and vexatious. It is against that order this appeal has been preferred as mentioned hereinabove.

(3.) KU. Vandana Kasrekar, learned Counsel appearing for appellant with the help of decision of Supreme Court Brahma Dev Choudhary v. Rishikesh Prasad Jaiswal and Ors. , reported in AIR 1997 SC 856, submitted that an enquiry/investigation is a must by the Executing Court before adjudicating the claim of obstructer when execution of decree for possession is pending before the Executing Court. According to learned Counsel, the moment third party or stranger to a decree files an application resisting execution for delivery of possession, recording of evidence is sine qua non for adjudicating claim of such party. On the other hand Shri B. L. Pavecha, learned Senior Counsel relied upon decision of the Supreme Court Silver Line Private Limited v. Rajiv Trust and Anr. , reported in AIR 1998 SC 1754, and contended that if the application filed to resist the execution of decree for possession on the face of it does not make out any case, then in such a case, no enquiry is needed.