Court No. - 44
Case :- WRIT - C No. - 13618 of 2009 Petitioner :- Rajeev Singhal And Others Respondent :- Bal Kishan And Others Counsel for Petitioner :- Rajiv Gupta Counsel for Respondent :- S.C.,Manoj Kumar Srivastava,Ram Kishore Pandey Hon'ble Pankaj Bhatia,J.
Heard Sri Rajiv Gupta, learned counsel for the petitioners, Sri Ram Kishore Pandey, learned counsel for the respondents and perused the material on record.
The writ petition challenges the order dated 31.8.2004 (Annexure No.3 to the writ petition) as well as the order dated 28.12.2008 (Annexure No.6 to the writ petition) whereby the revision filed by the petitioners was dismissed.
The Suits in question leading to the present writ petition have a checkered history, the first suit being Suit No.279 of 1950 was filed by one Bal Kishan against Chhuttan Lal, seeking decree of eviction, the said suit is said to have decreed on 21.9.1951, a part of the property was purchased by one Ghasi Ram by sale deeds dated 29.4.1956 from Bhawat Kishan and two sale deeds dated 11.1.1956 from Mohan Kishan and Madhav Kishan respectively.
An Execution Case No.311 of 1951 was filed seeking execution of the decree dated 21.9.1951, the said execution met with resistance from the tenants as well as Ghasi Ram who was not a party to the Suit No.279 of 1950. The tenants as well as Ghasi Ram filed Suit No.499 of 1951 which was dismissed on 25.8.1953 and the appeal against the same was also dismissed on 28.7.1955.
Ghasi Ram then filed objections purporting to be under Order XXI Rule 97 C.P.C. which were dismissed on 3.2.1956 and a revision against the said order was also dismissed on 30.10.1957, later on Ghasi Ram preferred a suit being Suit No.390 of 1958 under Order XXI Rule 103 of C.P.C., the said suit was decreed on 25.5.1961 and a first appeal filed against the said decree was dismissed on 31.1.1964. A second appeal came to be filed by Chait Ram being Second Appeal No.2062 of 1964 which was allowed on 5.9.1985 holding that the benefits of Section 14 of the Indian Limitation Act was not available and, thus, the second appeal stood allowed on 5.9.1985. The heirs of Ghasi Ram proceeded to file an S.L.P. before the Apex Court in which an interim order dated 1.11.1985 is said to have been passed directing the parties to maintain status-quo. The said SLP was converted into an appeal and was allowed vide judgment dated 22.7.1998, whereby the second appeal was remanded before this Court for decision afresh. On 20th January 1999, i.e. after about four months, the petitioners herein filed an application seeking restitution of possession under Section 144 read with Section 151 C.P.C., which was kept pending.
On 16.1.2004, the second appeal filed by the heirs of Chait Ram came to be dismissed on merits and an SLP preferred against the said order dated 16.1.2004 also stood dismissed on 6.8.2004.
The trial Court vide its order dated 3.8.2004 rejected the application of the petitioners filed under Section 144 read with Section 151 C.P.C. holding that the petitioners being the co-owners are entitled to notional possession of the property only under Order XXI Rule 35 C.P.C., the revisional order dated 21.12.2008 also rejected, the revision which has led to filing of the present petition. The revision filed by the heirs of Chait Ram also stood dismissed by the same order.
Sri Rajiv Gupta, counsel for the petitioners has strenuously argued that despite an interim order passed by Hon'ble Apex Court, the possession was disturbed and, thus, it was the bounden duty of the Courts to have restored the possession, in fact he then argues that this fact was also referred to and observed in the order passed in second appeal.
Sri Ram Kishore Pandey, counsel for the respondents on the other hand submits that there is nothing on record to demonstrate that the petitioners were ever in possession of the whole or any specified portion of the property in question, he further argues that the question of facts recorded by the Courts below cannot be disturbed in exercise of powers under Article 226 or 227 of the Constitution of India and, thus, the writ petition is liable to be dismissed.
Sri Rajiv Gupta, counsel for the petitioners was confronted to demonstrate from the pleadings on record with regards to the possession of the property in question by the petitioners or their legal heirs, however, nothing could be demonstrated from the record to the effect that the petitioners were in actual physical possession of the property in question when the alleged dispossession took place on 15.6.1986.
The law with regard to restitution under Section 144 read with Section 151 C.P.C. is well settled, Section 144 CPC is founded on the equitable principle that one who has taken advantage of a decree of a Court should not be permitted to retain it, if the decree is reversed or modified, in fact it is restoring to a party on the modification, variation or reversion of a decree which has been lost to him in the execution of a decree which has been set aside, thus, the essential ingredients for invoking the benefits flowing from Section 144 C.P.C. are that the party seeking restitution has to satisfy that prior to the execution of a decree, certain benefits accrued in favour of the applicant and the said benefits have been taken away by a decree which has been subsequently set aside or varied or modified.
I have already held that there is nothing on record to establish that the petitioners were in possession and were dispossessed and deprived of their accrued rights of possession in execution under the decree dated 21.9.1951. Thus, the resort to Section 144 C.P.C. by the applicants-petitioners has rightly been decided by the Courts below and there is no reason to interfere with the orders passed by the Courts below.
Accordingly, the writ petition is dismissed.
It is clarified that the observation made in this order will not be affecting the rights of the petitioners or the respondents that they may seek to establish in appropriate proceedings.
Order Date :- 19.12.2019 Hasnain