Dismissed

Mohammed Aslam Farooqui S/O Late Abdul Jameel Farooqui v. Abdul Wahid S/O Shri Amir Khan

Rajasthan HC12 Jul 2019CW/8986/2019

Case brief

AI extract

What is this about?

The High Court dismissed two writ petitions challenging the issuance of a warrant of possession in execution proceedings. Despite discrepancies between the property dimensions in the warrant and the Nazir's site report, and alleged changes in neighboring houses, the Court found the lower court's reasoning sound and held that minor variances could not deny the decree holder's right to execution.

What did the court decide?

The writ petitions were dismissed with the order confirming the lower court's dismissal of the objection to the warrant of possession.

Mohammed Aslam Farooqui S/O Late Abdul Jameel… — Execution and Attachment | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No. 11376/2019

¶3

Mohd. Aslam Farooqui S/o Late Abdul Jameel Farooqui, Aged About 40 Years, Resident Of Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶4

----Petitioner

¶5

Versus

¶6

Abdul Wahid S/o Shri Amir Khan, Aged About 62 Years, B/c Musalman, Resident Of Mohalla Goriyan, Bas Badanpura, Jaipur (Rajasthan).

¶7

Lallu Khan S/o Shri Natthe Khan, (Now Deceased) Through His Legal Heirs-

¶8

Munni W/o Shri Lallu Khan, Presently R/o House Of Nanga, Mohalla Immam Chowk, Bas Badanpura, Jaipur (Now Deceased).

¶9

Ishaq, R/o Shanichar Ji Ka Mandir, Shanti Colony, Mohalla Goriyan, Outside Char Darwaja, Jaipur.

¶10

Nanne Khan, R/o House Of Adsan, Mohalla Ichhawatan, Near Nala, Bas Badanpura, Jaipur.

¶11

Mst.firoz W/o Shri Abdul Hamid, R/o Rajamal Ka Kund, Mohalla Pannigaran, Jaipur.

¶12

Jameel S/o Shri Latif, (Now Deceased) Through His Legal Heirs-

¶13

Rukaiya Farooqui W/o Late Abdul Jameel Farooqui, Resident Of Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶14

Kesar Farooqui S/o Late Abdul Jameel Farooqui, Resident Of Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶15

Jeenat Farooqui S/o Late Abdul Jameel Farooqui, Resident Of Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶16

----Respondents

¶17

Connected With

¶18

S.B. Civil Writ Petition No. 8986/2019

¶19

Mohammed Aslam Farooqui S/o Late Abdul Jameel Farooqui, Aged About 40 Years, R/o Mohalla Imam Chowk, Bas Badanpura, Jaipur.

----Petitioner

(2 of 6)

[CW-11376/2019]

Versus

Abdul Wahid S/o Shri Amir Khan, B/c Musalman, R/o Mohalla Goriyan, Bas Badanpura, Jaipur(Raj.)

¶25

Lallu Khan S/o Shri Natthe Khan (Now Deceased), Through Its Legal Heirs.

¶26

Munni W/o Shri Lallu Khan, Presently R/o House Of Nanga, Mohalla Immam Chowk, Bas Badanpura, Jaipur (Now Deceased).

¶27

Ishhaq, R/o Shanichar Ji Ka Mandir, Shanti Colony, Mohalla Goriyan, Outside Chr Darwaja, Jaipur.

¶28

Nanne Khan, R/o House Of Adsan, Mohalla Ichhawatan, Near Nala, Bas Badanpura, Jaipur

¶29

Mst. Firoz W/o Shri Abdul Hamid, R/o Rajamal Ka Kund, Mohalla Pannigaran, Subhash Chowk, Behind Bundu Pahalwan, Jaipur.

¶30

Jameel S/o Shri Latif (Now Deceased), Through His Legal Heirs. R/o Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶31

Rukaiya Farooqui, W/o Late Abdul Jameel Farooqui, R/o Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶32

Kesar Farooqui, S/o Late Abdul Jameel Farooqui, R/o Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶33

Jeenat Farooqui, S/o Late Abdul Jameel Farooqui, R/o Mohalla Imam Chowk, Bas Badanpura, Jaipur.

¶34

----Respondents

¶35

For Petitioner(s)	:	Mr. Sandeep Singh Shekhawat, Adv.
For Respondent(s)	:

¶36

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

¶37

Order

¶38

12/07/2019

¶39

The present two writ petitions have been filed by the petitioners-objectors in respect of execution proceedings which have been initiated in execution application No.152/2017 for

¶40

(3 of 6) [CW-11376/2019]

¶41

execution of judgment and decree dt.16.08.1989. The petitionersobjectors raised an objection when warrant of possession was issued for handing over the possession of the disputed shop to the decree-holder.

¶42

Counsel submitted that the details of disputed property was given in warrant of possession and the disputed shop was shown to be 25x12 ft. and the boundaries were also mentioned. Counsel submitted that it was specifically mentioned in the warrant of possession that the boundaries referred towards East side were the house of one Chhote Khan and in between there was a Government road; in the West side, there was a house of Kallu; in the North, there was a house of defendant and in the South side, there was a public way.

¶43

Counsel also submitted that in compliance of directions issued by the Executing Court, the Nazir visited the site on 20.11.2018 and submitted his report. Counsel submitted that as per the report of the Nazir, the measurement of the shop in question was 20x12.3 ft. whereas in the warrant of possession, the measurement of disputed property is mentioned as 25x12 ft.

¶44

Counsel submitted that the boundaries of the shop in question were also not the same as mentioned in the warrant of possession as in the West side, instead of house of Kallu Khan, there is house of the petitioner (Aslam Farooqui), and in the North, house of the defendant Kallu Khan was shown. Counsel further submitted that even in the house of Kallu Khan, wife of Kallu Khan was found to be residing.

¶45

(4 of 6)

¶46

[CW-11376/2019]

¶47

Counsel submitted that the moment these facts came to the notice of the petitioner and warrant of possession was issued inspite of report being submitted by the Nazir, an objection was raised by the petitioner and it also came before the Court below that possession of the disputed shop was already taken by the decree holder at the time of execution of sale deed dated 24.10.2018.

¶48

Counsel submitted that there was no occasion for the decree holder to file application for handing over the possession. Counsel submitted that the Court below has passed the impugned order without considering the objection of the petitioner in proper manner. Counsel submitted that the petitioner clearly established that execution proceedings were not in respect of the same property for which the decree was passed and in the garb of execution proceedings, the property of a party-petitioner could not have been taken as the property in dispute for which execution was to be made.

¶49

Counsel for the petitioner also argued that the Court below ought to have recorded the evidence of the parties and after framing of the issues, the trial Court could pass the order and having not done so, illegality is committed by the Court below.

¶50

Counsel has drawn the attention of this Court towards the report of the Nazir which shows the description of the property and he has further tried to show to this Court that the registered sale deed which was executed has a different description of the property. Counsel submitted a bare comparison of two documents

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(5 of 6)

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[CW-11376/2019]

¶53

i.e. report of the Nazir and the registered sale deed, which reflect that the Court below has affected the right of the petitioner without any justification.

¶54

The counsel also submitted that the court below has passed the order on the premise that the decree holder has a decree in his favour and possession has not been handed over to him and in order to defeat the execution of decree, the petitioner is alleged to have come up with such objection. The trial Court has also found that two different pleas were taken on behalf of the petitioners as on one hand it was pleaded that the decree has already been executed and the possession has been given to the decree holder and on the other hand, due to discrepancy in the description of the property, the property was not the same for which the decree was to be executed.

¶55

I have heard counsel for the petitioners and gone through the order impugned.

¶56

This Court finds that the Court below has recorded in its order dt.25.04.2019 that only on account of change of neighbours or occupation of particular house by some other person, whose description is given in the property, the actual and physical existence of the property cannot be denied.

¶57

This Court further finds that the trial Court after considering the dimensions which were mentioned, found that the warrant of possession was issued in respect of the same property for which the decree holder had a decree in his favour. This Court also finds

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(6 of 6)

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[CW-11376/2019]

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that only on account of some variance in the measurement of total area, it cannot be assumed that the decree holder has no right for execution of a decree and others can raise the objection to take benefit of it.

¶61

This Court finds that the reasonings given by the Court below while dealing with the application of the petitioners do not suffer from any legal informity and after considering the nature of decree which is required to be executed, the Court below has formed the opinion.

¶62

This Court finds that no error has been committed by the Court below and the instant writ petitions are dismissed, accordingly.

¶63

(ASHOK KUMAR GAUR),J

¶64

Sandeep/Ashish Kumar /369/101-102

Mohammed Aslam Farooqui S/O Late Abdul Jameel Farooqui v. Abdul Wahid S/O Shri Amir Khan

Case brief

What is this about?

What did the court decide?

Mohammed Aslam Farooqui S/O Late Abdul Jameel Farooqui v. Abdul Wahid S/O Shri Amir Khan

Case brief

What is this about?

What did the court decide?

What the court decided

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