P.K.LOHRA, J. - (1.) Appellant-objectors have preferred this execution second appeal to assail order dated 4th of January 2019, passed by Addl. District Judge, Merta (for short, 'learned lower appellate Court'), rejecting their appeal and affirming order dated 10th of March 2015, passed by Senior Civil Judge, Merta (for short, 'Executing Court') in Civil Misc. Case No.10/2007, rejecting objections of the appellant-objectors under Order 21 Rules 97 and 99 read with Section 47 CPC by holding that appellant-objectors have failed to prove location of the disputed shops on the land, which is part of Khasra Nos.974/6 to 974/12. Subsequently, learned lower appellate Court, upon de novo examination of evidence and materials available on record, fully concurred with the findings and conclusions of learned Executing Court, resulting in rejection of the appeal.
(2.) Succinctly stated, facts of the case are that Gram Panchayat, Merta Road, issued a Patta/sale-deed in favour of one Deepchand on 17th of March, 1971 for a land measuring 35 x 30 yards, i.e. total 1050 sq.yds. As there was some dispute pertaining to land belonging to respondent-Temple, a civil litigation was pending between it and Gram Panchayat at the time of aforesaid allotment, which litigation continued upto this Court in the form of S.B. Civil Second Appeal No.209/67. The appeal was finally decided on 22 nd of February, 1974 on the basis of compromise arrived at between respondent-Temple and the Gram Panchayat. In terms of the compromise, the land, which is part of Khasra Nos.974/1 to 974/17 shall be treated as land belonging to respondent-Temple and any allotment made by Gram Panchayat out of that land by issuance of Patta is to be treated as null and void. Pursuant to compromise decree passed by this Court, a notice was given to Deepchand by District Collector, Nagaur on 26th of December, 1974 as to why construction raised by him on the land be not demolished. A similar notice was also issued by Sub Divisional Officer, Merta on 30th of December, 1974. Being aggrieved by the aforesaid notices, Deepchand filed a civil suit for permanent injunction. The suit was decreed by learned trial Court on 9 th of December, 1977. Against the judgment and decree, appeal preferred by District Collector, Nagaur was also dismissed on 19 th of October, 1983. In the interregnum, Deepchand passed away and he was succeeded by his wife Smt. Sushila Devi. Smt. Sushila Devi, by a registered sale-deed, transferred 337.13 sq.ft.land to first appellant Govind Prakash on 4 th of June 2002, followed by yet another sale-deed dated 11th of December 2002 for a land admeasuring 142.82 sq.ft. in favour of second appellant. Besides that, Smt. Sushila Devi entered into an agreement to sale in favour of third appellant for two shops situated on the land, which was part of Patta (Ex.1).
(3.) The compromise decree passed by this Court was put to execution by respondent-Temple by filing Execution Petition No.24/85 on 4th of September, 1985. Learned Executing Court issued warrant of possession on 12th of September, 2004. It so happened that the learned Executing Court before issuance of warrant of possession, vide order dated 12 th of May 2004, directed the Tehsildar to survey boundaries of Khasra Nos.974/6 to 974/12. The assertion of appellants is that said survey was conducted without giving notice to them. Be that as it may, as the fact remains that Tehsildar in his survey report, submitted before learned Executing Court, clarified that two shops of first appellant, one shop of second appellant and two shops of third appellant are falling within the boundaries of Khasra Nos.974/6 to 974/12. Raising grievances about the survey report of Tehsildar as being prepared without notice to the appellants and further urging that the shops in question are not part of land belonging to respondent- Temple, at their behest objections were filed before the learned Executing Court, inter-alia, by invoking Order 21 Rules 97 and 99 read with Section 47 CPC. The objections were contested by the respondent-Temple. The learned Executing Court permitted parties to lead their evidence and finally, by its order dated 10 th of March 2015, rejected the same. The learned Executing Court, upon consideration of evidence of rival parties and the survey report of Tehsildar, found that the shops of appellants are situated on the land belonging to Temple. The Court has further recorded a finding that appellant-objectors have failed to prove that the shops are not within the boundaries of land belonging to Temple. Being aggrieved by the same, appellants approached the lower appellate Court. Learned lower appellate Court, too, did not find any fault with the findings and conclusions of the learned Executing Court.;