BELA M.TRIVEDI - (1.) THE present appeal filed by the appellants-objectors arises out of the judgment and decree dated 30.7.2008, passed by Additional District Judge No. 1, Ajmer City, Ajmer,(hereinafter referred to as the appellate court), in Civil Appeal No. 49/2005, whereby the appellate court has dismissed the said appeal and confirmed the judgment and order dated 12.9.2001, passed by the Civil Judge (SD), Kishangarh, Ajmer, (hereinafter referred to as the Executing Court) in Misc. Case No. 7/98, in Execution Case No. 10/90.
(2.) THE short facts, giving rise to the present appeal are that the respondent No.1-plaintiff had filed the suit against the respondent no.2-defendant before the trial court seeking eviction of the Quarter No.22, (hereinafter referred to as the suit premises). THE said suit was decreed exparte against the respondent no. 2, on 30.11.1977. According to the present appellants their father Ganpat Singh was in possession of the Suit Premises as the tenant, and not the respondent no. 2. Hence, said Ganmpat Singh had challenged the said decree by filing an appeal, however, the appellate court dismissed the same vide order dated 19.7.1984, holding that third party could file application u/Or. XXI, R. 99 or a separate suit. Hence, the said Ganpat Singh filed the suit, which was resisted by the respondent no. 1. THEreafter the said Ganpat Singh died on 11.4.1991 and his wife Ram Kanwar filed an application being no. 7/98 before the Executing Court under Or. XXI, R. 97, which was dismissed vide order dated 12.9.01. Being aggrieved by the said order, the said Ram Kanwar filed the appeal being no. 49/05 before the appellate court, which has been dismissed vide the impugned judgment and decree dated 30.7.08. THE present Second Appeal appears to have been filed by the sons of the said Ganpat Singh and Ram Kanwar, against the said judgment and decree passed by the appellate court. It has been sought to be submitted by the learned counsel for the appellants that both the courts below had failed to appreciate that the father of the appellants Ganpat Singh was the tenant of the suit premises and not the respondent no. 2, and therefore the exparte decree passed against the respondent no. 2 was not binding to the appellants and therefore could not be executed against them. He also submitted that the issues raised in the suit filed by Ganpat Singh having not been decided on merits, the principle of res judicata could not be made applicable in the Execution Proceedings filed for the execution of the decree passed in the suit filed by the respondent no. 1 against the respondent no. 2. In the instant appeal, it appears from the orders passed by the courts below that the appellants and their parents had filed the proceedings one after the other with a view to defeat the decree obtained by the respondent no. 1 in respect of the suit premises. The Executing Court, while deciding the application under Or. XXI, R. 97 filed by Smt.Ram Kanwar, has discussed in detail , in the order dated 12.9.01, as to how many proceedings were filed and how they were disposed of. The Executing Court has also held that the applicant Smt.Ram Kanwar had failed to produce any documentary evidence to prove that the said Ganpat Singh was in possession of the suit premises at any time prior to 30.11.1977,when the decree was passed by the Court against the respondent no. 2 and in favour of the respondent no. 1. The Appeal filed by said Ganpat Singh and the objection application filed by Smt.Ram Kanwar were also dismissed by the respective courts. The learned counsel Mr.Kapoor for the appellants has also not been able to point out any legal right of the appellants in the suit premises, nor any illegality or perversity in the impugned orders passed by the Court below. There being concurrent findings of facts recorded by the courts below and there being no substantial question of law involved in this Appeal, this Court is not inclined to entertain the Appeal. The Appeal being devoid of merits deserves to be dismissed and is dismissed in limine. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. ;