SHREE CHANDRASHEKHAR, J. - (1.) AGGRIEVED by order dated 12.07.2011 in Misc. Case No. 2 of 2011 filed under Order XXI Rule 97, 98 and 101 r/w Section 151 CPC and the appellate order dated 07.02.2015 in Misc. Appeal No. 119 of 2011 whereby, order dated 12.07.2011 has been confirmed, the present writ petition has been filed.
(2.) THIS case has a chequered history. The parties have been litigating for about 15 years. In the meantime, a preliminary decree in Title (Partition) Suit No. 80 of 2001 has been passed on 17.09.2012 and the Title (Eviction) Suit No. 70 of 2001 has also been decreed. The petitioners filed as many as three applications under Order XXI Rule 97, 98 and 101 CPC which have been dismissed by the trial court. The order passed in one of the applications preferred by the petitioners being Misc. Case No. 3 of 2010 has been confirmed by this Court in Civil Revision No. 19 of 2010 vide, order dated 17.05.2010.
(3.) BEFORE adverting to the rival contentions raised on behalf of the parties, the brief facts of the case may usefully be noticed. One Marium Bibi died on 11.02.1979 leaving behind two sons namely, Md. Anwar and Md. Qurban. It is stated that a deed of Family Settlement was executed on 27.04.1997 between one Md. Anwar and sons of late Md. Qurban under which the suit property in the eviction suit came in the share of the petitioners. The Title (Partition) Suit No. 80 of 2001 was filed by the petitioners for partition and for a decree of injunction against the defendants who are respondents in the present proceeding. The petitioner no. 1Hazara Khatoon is the second wife of Md. Qurban. She is plaintiff no. 1 in Title (Partition) Suit No. 80 of 2001. The petitioner no. 2 is plaintiff no. 2 in the partition suit and the petitioner no. 3 is the plaintiff no. 3 in the said partition suit. A preliminary decree was prepared on 17.09.2012 in Title (Partition) Suit No. 80 of 2001. The property in question, that is, the suit schedule property in Title (Eviction) Suit No. 70 of 2001 is Schedule "D" property in the Title (Partition) Suit No. 80 of 2001, is not in dispute. It is stated that the petitioner no. 1 got 1/16 share in the Schedule "D" property whereas, plaintiff no. 2 and 3 have got 7/56 share in the Schedule "D" property. Before that, Title (Eviction) Suit No. 70 of 2001 filed by Rubaida Khatoon and one of her sons was decreed exparte on 18.06.2003. Thereafter, Execution Case No. 07 of 2008 was filed for execution of exparte decree dated 18.06.2003. The petitioners appeared on 31.07.2009 in Execution Case No. 7 of 2008 seeking their impleadment in the execution case however, their application was rejected vide, order dated 20.11.2009. Thereafter, the petitioners filed application under Order XXI Rule 97, 98 and 101 CPC on 11.01.2010 which was registered as Misc. Case No. 3 of 2010. After the decree holders contested the application, the said application was dismissed on 06.03.2010, against which the petitioners came before this Court in Civil Revision No. 19 of 2010. The civil revision preferred by the petitioners was however, dismissed on 17.05.2010. Thereafter, the petitioners filed another application under Order XXI Rule 97, 98 and 101 CPC which was registered as Misc. Case No. 11 of 2010. The said application has been rejected by the executing court vide, order dated 10.08.2010. About six months thereafter, the petitioners again moved an application being Misc. Case No. 2 of 2011 raising objection in the Execution Case No. 07 of 2008. Misc. Case No. 2 of 2011 was dismissed vide, order dated 12.07.2011 with cost of Rs. 10,000/ and appeal preferred by the petitioners vide Misc. Appeal No. 119 of 2011 has also been dismissed vide, order dated 07.02.2015. In the above facts, the petitioners have approached this Court by filing the present writ petition. Mr. R.S. Majumdar, the learned Senior counsel for the petitioners submits that in the Family Settlement dated 27.04.1997, a part of the suit property in Title (Eviction) Suit No. 70 of 2001 has been allotted to the petitioners. The said Family Settlement dated 27.04.1997 was filed and marked as Exhibit1 in Title (Partition) Suit No. 80 of 2001. A specific issue with respect to genuineness of the said family settlement was framed by the trial court and the said issue has been answered in favour of the plaintiffs/writ petitioners and the claim raised by the respondents over the said property by virtue of the alleged "HIBA" executed by Md. Qurban has been rejected by the trial court in Title (Partition) Suit No. 80 of 2001. It is further submitted that in Civil Revision No. 19 of 2010, this Court observed that if the petitioners establish their right, title and claim as a cosharer, delivery of possession of the suit scheduled property in Title (Eviction) No. 70 of 2001 can be delivered to them. It is thus submitted that once it has been found that the petitioners are in possession of the suit schedule property in Title (Eviction) Suit No. 70 of 2001, after the preliminary decree dated 17.09.2001 in which the petitioners have been held entitled for their share in the said property, the issue as to the entitlement of the petitioners to remain in possession of the suit property has to be adjudicated. The learned Senior counsel for the petitioners relied on decisions reported in AIR 1996 SC 2050, (2000) 10 SCC 405, (2002) 1 SCC 662, AIR 1997 SC 856, AIR 1998 SC 1827, (2006) 4 SCC 412, 2015 (1) JCR 298 (SC), (2004) 1 SCC 551 and (2004) 12 SCC 770.;