H IGH COURT OF UTTARAKH AND AT NAINITAL W r it Petition No. 24 of 20 10 (M/ S) Pankaj Kumar Maheswari. …………Petitioner Versus Radha Krishan and others. ……..Respondents Shri Neeraj Garg, holding brief of Shri Devesh Ghildiyal, Advocate for the petitioner. Shri Piyush Garg, Advocate for respondent nos. 3 to 6. Dated: May 31, 2010 H on ’ble V.K. Bist, J . Present petition has been filed by the petitioner challenging the order dated 05.12.2009 passed by 1st Addl. Civil Judge (Jr. Div.), Dehradun in Case no. 3 of 2008 ‘Pankaj Maheshwari vs. Radha Krishna & others’ and the order dated 07.01.2010 passed by the District Judge, Dehradun in Civil Appeal no. 1 of 2009. 2. The facts in brief, as narrated in the petition, are that on 16.12.1970 the respondent no.1- Radha Krishna (deceased) instituted a Suit No. 233 of 1970 against the respondent no.7- Bindeshwari Prasad (deceased) for possession and damages for use and occupation, which was decreed on 23.06.1976 in favour of respondent nos. 1 to 5. The decree was confirmed by the High Court vide order dated 31.08.2007. In the month of December, 2007, when the petitioner came to know that the respondent nos. 1 to 5 filed an execution case against respondent nos. 6 to 10 and 13, then on 03.01.2008 the petitioner filed a Misc. Civil Case against the execution under Order XXI Rule 99 & 100 and under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.), with the averments that his ancestor late Heeralal was the owner of the property no. 19, Karanpur, known as Alka Building. This property is a two-storey building having two shops in the ground floor and the first floor is being used for residential purpose. Heeralal died in the year 1961. He did not execute any WILL. After his death, two sons and two daughters, namely, Munshi Lal, Radhakrishna, Smt. Bhagwan Devi and Smt. Shripyari succeeded him. The said property was the joint property of the legal heirs of Heeralal, having each 1/ 4th joint share. Smt. Bhagwan Devi was the grandmother of the petitioner. After Smt. Bhagwan Devi’s death her son Krishna Gopal and daughter Mahadevi inherited her property. The property was a joint property. After the death of Krishna Gopal on 08.06.1983, the petitioner became the legal heir of Krishna Gopal. The petitioner has 1/ 8 th share in the said joint property. The said property was in the occupation of Munshi Lal/ co-owner and it was thereafter occupied by his legal heirs and they continued their business in the said property. Now the petitioner is occupying the said property. The petitioner also came to know that on 19.09.1969 Radhakrishna and Munshi Lal partitioned the said property among themselves. The petitioner also came to know that when relations in between Radhakrishna and Bindeshwari got strained, one Suit No. 233/ 1970 ‘Radhakrishna vs. Bindeshwari’ was instituted and a decree was obtained without impleading the petitioner as well as other successors of Smt. Bhagwan Devi. It is stated that the decree is not binding upon the petitioner as the same has been obtained without impleading the petitioner as well as his ancestors a party. The said decree has been obtained to grab the said property, therefore, the judgment and the decree in suit no. 233 of 1970 is illegal, ineffective, void and the decree is not executable. On the basis of said decree, the decree holder is not entitled for occupation of the said property or for any damage of use of the said property. It is stated that no one has the right in occupation and ownership against the petitioner. The respondent nos. 2 to 6 have no right to file execution application. The entire execution proceeding is not maintainable and liable to be dismissed. 3. On 07.03.2008, the respondent nos. 2 to 6 filed objection against the application moved by the petitioner with the assertion that the pedigree given by the petitioner is incomplete and wrong. It was stated in the objection that Smt. Sripyari Devi has another son, namely, Ram Pratap Birla and Krishna Gopal was survived by his widow, one son and 5 daughters. Similarly the two daughters of Smt. Karupi Devi as well as Munshi Lal have expired leaving behind their respective heirs. It is stated that the said property was owned and acquired by Munshi Lal and Radha Krishna in the name of Heeralal, and this question has conclusively been decided up to the stage of SLP. It has been further stated that the question involved in the application is barred by the principles of res-judicata by virtue of the dismissal of Suit no. 24 of 1973 ‘Smt. Sripyari Devi vs. Sri Radha Krishna and others’ from the Court of Civil Judge, Etah to which the applicant, his father Krishan Gopal and all the heirs of Krishan Gopal and Smt. Mahadevi D/ o Bhagwan Devi were parties. It was admitted that Heeralal was survived by his two sons, namely, Munshi Lal and Shri Radha Krishna and two daughters, namely Smt. Bhagwan Devi and Smt. Sripyari, besides his widow Smt. Ganga Devi. It was also stated in the objection that the property was owned by Munshi Lal and Radha Krishna. On partition amongst Munshi Lal and Radha Krishna, the property came to the share of Radha Krishna and after his death, the opposite parties are inheriting the same. The issue with regard to Benam i purchase of property bearing no. 19, Karanpur, Dehradun was the subject matter in suit no. 233/ 1970 ‘Radha Krishna vs. Bindeshwari Prasad’ in the Court at Dehradun and suit no. 24 of 1973 ‘Smt. Sripyari Devi vs. Radha Krishna and others’ in the Court of Etah. On adjudication of suit no. 233/ 1970, the suit no. 24/ 73 was got dismissed. Father of the applicant appeared and contested the said suit. On his death, all heirs of Krishna Gopal, including the applicant were impleaded as a party to the suit. It was also denied that Krishan Gopal or Smt. Mahadevi were the heirs of Smt. Bhagwan Devi, in respect of the property in question. It is stated that neither the predecessors of the petitioner nor he himself has any share in the said property except for one shop, which is subject matter of sit no. 233 of 1970. It is alleged that, in fact, the said application has been moved by the applicant at the instance and in collusion with opposite parties nos. 9,10 and 13. It has further been stated that except Bindeshwari Prasad, no other person was the necessary party to suit no. 24 of 1973 and all the parties in suit no. 24 of 1973 had and shall be presumed to have knowledge of the suit no. 24 of 1973. Further, each and very person had complete opportunity to appear in suit no. 33 of 1970. 4. The petitioner filed his reply on 19.09.2008 against the objection raised by the opposite parties. 5. The learned 1st Addl. Civil Judge (Jr. Div.), vide order dated 5.12.2009 dismissed the application of the petitioner filed by him under Order 21 Rule 99 & 100 and Section 47 of C.P.C. with costs of Rs. 500/ -. Being aggrieved with the order of Trial Court, the petitioner filed Civil Appeal before the District Judge, Dehradun. The Civil Appeal No. 1 of 2009 came up for hearing on admission on 07.01.2009, but the learned Appellate Court deferred the matter for 19.01.2010. Aggrieved with the order of Appellate Court, this petition has been filed. 6. I have heard Shri Neeraj Garg, the learned counsel for the petitioner, Shri Piyush Garg, the learned counsel for the respondents and perused the record. 7. Learned counsel for the petitioner argued that in Civil Suit No. 233/ 1970 filed by the respondent no.1 against respondent no.7, the petitioner was not made party, hence the decree in suit obtained by respondent nos. 1 to 5, at his back, is null and void and the decree is not binding upon the petitioner and no execution can be done against him. He submitted that the Trial Court has passed the order impugned ignoring the requirements of Order XXI, rule-99 & 100 and 101 C.P.C. and as the respondent nos. 1 to 5 have obtained possession and by the help of police the petitioner may be dispossessed, therefore dispossession of the petitioner is to be suspended and the orders dated 5.12.2009 passed by the Trial Court and order dated 07.01.2010 passed by the Appellate Court are liable to be set-aside. On the other hand Shri Piyush Garg, the learned counsel for the respondents argued that pedigree given by the petitioner is incomplete and wrong. It is submitted that the said property was owned and acquired by Munshi Lal and Radha Krishna in the name of Heeralal. It has been further submitted that the question involved in the application is barred by the principles of res-judicata by virtue of the dismissal of Suit no. 24 of 1973 ‘Smt. Sripyari Devi vs. Radha Kishna and others’ of the Court of Civil Judge, Etah to which the applicant, his father Krishan Gopal and all the heirs of Krishan Gopal and Smt. Mahadevi D/ o Bhagwan Devi were the parties. It has been further submitted that the property was owned by Munshi Lal and Radha Krishna and on partition amongst Munshi Lal and Radha Krishna, the property came to the share of Shri Radha Krishna and after his death, the opposite parties are inheriting the same. He submitted that issue with regard to Benam i purchase of property bearing no. 19, Karanpur, Dehradun was the subject matter in suit no. 233/ 1970 ‘Radha Krishna vs. Sri Bindeshwari Prasad’ in the Court at Dehradun and suit no. 24 of 1973 ‘Smt. Sripyari Devi vs. Radha Krishna and others’ in the Court of Etah. He submitted that father of the applicant appeared and contested the said suit. On his death, all heirs of Shri Krishna Gopal, including the applicant, were impleaded as a party to the suit. It was denied that Krishan Gopal or Smt. Mahadevi were the heirs of Smt. Bhagwan Devi. He submitted that neither the predecessors of the petitioners nor he himself has any share in the said property. He further submitted that except Bindeshwari Prasad, no other person was a necessary party to suit no. 24 of 1973 and all the parties in suit no. 24 of 1973 had and shall be presumed to have knowledge of the suit no. 24 of 1973. He argued that each and every person had complete opportunity to appear in suit no. 233 of 1970, during its pendency. He vehemently submitted that the applicant/ petitioner is not entitled to any relief. 8. Application of the petitioner under Order XXI Rule 99 & 100 C.P.C. has been rejected by the 1st Addl. Civil Judge (Jr. Div.), Dehradun on 05.12.2009 against which appeal is pending before the District Judge. The present writ petition against the order dated 05.12.2009 is misconceived and cannot be entertained. Since, the appeal is pending, this Court is not making any observation about the merits of the case. During the course of hearing a certified copy of report of an Amin dated 12.01.2010 has been produced before this Court informing the Court that after receipt of order from the Court of Civil Judge (Jr. Div.), Dehradun in Execution Case no. 6 of 2007 the decree-holder was informed and on 12.01.2010 at 10:30 a.m. he, alongwith the police P.S. Dalanwala, reached at the disputed property i.e. 19, Karanpur, Dehradun. The respondent/ judgment-debtor was absent. After breaking the lock, a list of belongings was prepared and handed over to Devi Prasad-who was present on behalf of decree holder. The vacant position of the property was handed over to decree holder. Thus, in view of the Amin report, order for granting injunction in favour of the petitioner cannot be passed. 9. In view of above discussion, the writ petition fails and is dismissed accordingly. No order as to costs. 10. Interim order dated 13.01.2010 passed by this Court stands vacated. (V.K. Bist, J .) 31.05.2010 NCM: