// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Civil First Appeal No.520/2007 Smt. Guddi Devi W/o Shri Durga Prasad ...Objector-Appellant Versus Ram Kishore S/o Balabaksh (deceased plaintiff) through his legal heirs ...Decree-Holder/Respondents AND Shri Durga Prasad S/o Shri Sukhlal ...Judgment-Debtor/Respondent Date of Order ::: 17 th January 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Amit Sharma, Advocate, for Shri Laxman Madnani, Counsel for appellant Shri R.K. Mathur, Counsel for respondents No.1/1 to 1/3 By the Court:- Heard learned counsel for both the parties. This appeal under Section 96 read with Order 21 Rule 102 of the Code of Civil Procedure is directed against the impugned judgment dated 06.08.2007 passed by the Additional District Judge, Rajgarh, District Alwar, in Objection Petition No.82/2006, whereby the Objection Petition filed by the objector-appellant under Order 21 Rule 97 of the CPC has been dismissed. Briefly stated, the facts of the case are that the respondent No.2 Durga Prasad was the owner of the disputed property and he executed an agreement to sell it in favour of deceased respondent No.1 Ram Kishore, who filed a suit for specific performance of the agreement, which was decreed in his favour. In pursuance of the decree passed by the trial court in favour of the Ram Kishore, a sale-deed was executed and registered and on that basis the disputed // 2 // plot was also mutated in the revenue record in favour of decree-holder, who filed an application for execution of the decree for possession of the disputed plot. During the pendency of the execution petition, Smt. Guddi Devi, the appellant herein, filed the Objection Petition under Order 21 Rule 97 of the Code of Civil Procedure stating therein that she is the owner of the disputed plot and she is in actual physical possession of the same. It was also contended by her that during the pendency of the suit she moved an application under Order 1 Rule 10 of the CPC, which was dismissed on the ground that the suit is in between Ram Kishore and Durga Prasad, and any decree passed therein will not be binding on her, therefore, she has a right to file the present Objection Petition. The Objection Petition was tried by the trial court just like a suit. The reply was filed by the decree-holder. The trial court framed issues. The objector-appellant examined herself as AW-1, and also examined Shri Bhudhar Saini as AW-2 and Shri Laxmi Narain as AW-3, and produced documentary evidence Exhibit-1 – the decree and Exhibit-2 the order dated 06.02.2002. The decree-holder examined NAW- 1 Shri Mahesh Chand and NAW-2 Shri Ramaotar Saini, and produced documentary evidence Exhibit-A/1 – copy of the plaint titled as Ram Kishore Vs. Durga Prasad, and Exhibit- A/2 – copy of the agreement. The learned trial court, after considering the submissions of learned counsel for both the parties and examining the oral and documentary evidence, decided all the issues in favour of the decree-holder and dismissed the Objection Petition filed by the objector-appellant. The trial court recorded a finding while deciding Issue No.1 that the objector has failed to prove that she constructed a room from her own sources/funds over the disputed plot. // 3 // While deciding Issue No.1A, the trial court also recorded a finding that the objector has failed to prove that Durga Prasad purchased the disputed plot from the sources/funds of Joint Hindu Family and, as such, he had no right to sell or agree to sell the plot in dispute. The learned counsel for the appellant contended that from the oral evidence on the record, it is clear that the disputed plot belongs to the appellant and she is in actual physical possession of the same. She moved an application earlier during the pendency of the suit under Order 1 Rule 10 of the CPC, which was dismissed vide order dated 06.02.2002, therefore, she has a right to file the present Objection Petition. The learned counsel for the respondents No.1/1 to 1/3 supported the impugned judgment passed by the trial court and contended that the property, in dispute, was purchased by Ram Kishore from Durga Prasad, the husband of objector-appellant Smt. Guddi Devi, and when Durga Prasad failed to execute the sale-deed then Ram Kishore filed a suit for specific performance of the agreement, which was decreed in his favour. The said decree was not challenged and, in pursuance of the said decree, the sale-deed has been executed and registered and, on that basis the plot has been mutated in favour of the legal representatives of Ram Kishore. It is further contended that Smt. Guddi Devi has no right whatsoever over the plot in dispute. She is in possession of the plot in dispute being the wife of Durga Prasad, who agreed to sell the disputed plot to Ram Kishore, therefore, the learned trial court has rightly dismissed the Objection Petition, and further that there is no merit in any of the contentions of the learned counsel for the appellant and the appeal deserves to be dismissed. I have considered the submissions of learned counsel for both the parties in the light of findings of the learned trial court recorded vide impugned judgment // 4 // dated 06.08.2007. The learned counsel for the appellant admits that there is no documentary evidence in support of the appellant to prove that the disputed plot belongs to her. The disputed plot was in the ownership of Durga Prasad, the husband of the Objector Appellant Smt. Guddi Devi. The trial court has considered the statements of the witnesses of both the parties in detail and has rightly recorded a finding in favour of the decree-holder. I myself considered the finding of the trial court and I do not find any perversity in it. It is an admitted position that the Objector-Appellant could not produce on the record any documentary evidence in order to prove her ownership over the plot, in dispute. Neither the plot was received by her from her father or husband by way of gift-deed nor she purchased it through any agreement or sale-deed, therefore, the trial court rightly recorded a finding that she failed to prove her ownership over the plot, in dispute. The burden was on the appellant to prove that the property, in dispute, was purchased by Durga Prasad from the sources/funds of Joint Hindu Family and it was the property of the Joint Hindu Family. In absence of any documentary evidence in this regard, I do not find any merit in the submissions of learned counsel for the appellant. In view of the above discussion, I do not find any merit in any of the contentions of the learned counsel for the appellant and the appeal is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman// S.No.S-5