1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.2602/2007 Smt. Kusum Devi Versus Additional District Judge No.2 & Others Date of Order :: 11th August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Sohan Lal Sharma for the petitioner Mr. Rishi Parashar for the respondents BY THE COURT: Admit. Mr. Rishi Parashar, advocate appears for the contesting respondents. 2. Heard learned counsel for the parties. 3. The objector / petitioner has preferred this writ petition with the averments that the plaintiff / respondents no. 2 and 3 filed a suit for ejectment against defendant / respondents no.4 to 6 in respect of the premises, which was in her possession. She was not impleaded as party in the suit. The ejectment decree was passed. When executing proceedings were pending, she filed objection petition alongwith the stay application to stay the execution proceedings as she was not a party to ejectment proceedings, but trial court 2 rejected the said application vide order dated 2.4.2007, which is under challenge in this writ petition preferred on behalf of the objector / petitioner. It is relevant to mention that during the pendency of this writ petition, the petitioner was dispossessed from the property in dispute and she moved an application before this Court on 18.7.2007 for restoration of the possession. This court vide order dated 30.7.2007 passed the following order: “Heard on the application. The matter can only be decided on merit. At this stage, I find no merit in the application. The petitioner is at liberty to argue the matter on merit on the grounds which are taken in this application, but in any case, the application cannot be entertained at this stage. The application is accordingly rejected. 4. This Court while rejecting the application for restoration of the possession, observed that petitioner will be at liberty to argue the matter on merit on the grounds which are taken in the application but the said application cannot be entertained at this stage. 5. Learned counsel for both the parties have argued their case at length but this fact is not in dispute that petitioner has already 3 been dispossessed from the property in dispute. The petitioner, in fact, was tenant in the disputed property or not, is purely a question of fact, which can be proved only by leading evidence by her in the executing court and only thereafter an appropriate order can be passed in the matter. In these circumstances, so far as the present writ petition is concerned, now no relief can be granted to the petitioner but it is observed that it will be open for the petitioner to move the appropriate court / executing court for restoration of the possession and in case she succeeds by leading evidence that she was in possession of the disputed property as tenant, then the concerned court will pass the necessary orders after hearing all the concerned parties, in accordance with law. 6. With the aforesaid observation, the writ petition is dismissed with no order as to costs. (NARENDRA KUMAR JAIN),J. DK