Dismissed

Smt.Basanti Devi and Ors. v. Lrs.of Balkishan

Rajasthan HC7 Feb 2024CR/48/2009

Case brief

AI extract

What is this about?

This revision petition challenged a lower court order directing demolition of an illegal partition to hand over possession. The High Court held the executing court acted within jurisdiction to remove obstructions to ensure vacant possession as per the eviction decree.

What did the court decide?

The revision petition was dismissed, upholding the order for removal of the partition and handing over possession.

Smt.Basanti Devi and Ors. Vs Lrs.of Balkishan — Execution and Attachment | Rajasthan HC (2024)

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[2024:RJ-JD:6463]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 48/2009

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Smt. Basanti Devi And Ors.

----Petitioners

Versus

Lrs.of Balkishan

----Respondents

For Petitioner(s)	: Ms. Apeksha Chhangani Vyas
For Respondent(s)	: Nonepresent

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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07/02/2024

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The present is a revision petition pertaining to the year 2009 and has been listed in the ‘Oldest cases for Early Disposal’ category.

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None has appeared on behalf of the respondents hence, the Court proceeded on to hear learned counsel for the petitioner. 3. The present revision petition has been preferred by the judgment-debtors against the order dated 30.01.2009 passed by the Civil Judge (Sr. Division), Jaisalmer in Execution Case No.2/2002 whereby the application under Section 47 read with Section 151, CPC as preferred by them had been partly allowed. Vide the order impugned, the Executing Court partly allowed the application as preferred by the judgment-debtors to the effect that the decree-holder was not held entitled to evict the judgment-debtors from the land of Municipality, which was not a part of the decree. Simultaneously, the Court ordered for handing over the possession of the wall in the west of the rented premise

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to the decree-holder after demolition of the partition as raised by the judgment-debtors in the same.

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The facts of the case are that vide judgment and decree dated 27.03.1985, decree for eviction in favour of plaintiffBalkishan was granted. When, in compliance of the decree, vacant possession of the premise was not handed over to the plaintiff, he preferred an execution petition. In the said proceedings, an application under Section 47 read with Section 151, CPC was preferred by the judgment-debtors on 13.10.2006 with a submission that although they are ready and willing to hand over vacant possession of the disputed premise but they may not be evicted from the property situated in the north of the disputed premise which is not a part of the rented premise but is the land of the Municipality.

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A reply to the said application was preferred by the decreeholder with the submission that no prayer was made by him to get the possession of the Municipal land and neither is he pursuing any such cause. However, one door of the disputed premise which opened towards the west and was used by the tenant/judgmentdebtors, has now been closed by him vide a partition wall. Therefore, the said partition be directed to be removed and the possession of the same be directed to be handed over to the decree-holder.

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Learned Executing Court, vide order dated 15.12.2007, directed for handing over the vacant possession of the admitted rented premise to the decree-holder but regarding the alleged land belonging to municipality and the disputed door/partition, directed for recording of the evidence.

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After the evidence being led, on consideration of the said evidence, the learned Court specifically concluded that the door in question was closed vide a fresh partition by the judgmentdebtors after passing of the decree. The Court held the same to be illegal and hence, directed for demolition of the said partition and handing over the possession of the same to the decree-holder. Aggrieved of the said direction/order, the present revision petition has been preferred.

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Learned counsel for the petitioners submitted that the approach of the learned Executing Court was in excess of its jurisdiction insofar as the Executing Court becomes functus officio after the decree having been satisfied. Learned counsel submitted that once, vide order dated 15.12.2007, the Executing Court had directed for handing over possession of the premise in question, it could not have further delved into the dispute regarding the wall/partition which was not a part of the said decree.

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Heard learned counsel for the petitioners and perused the material available on record. 10. A perusal of the judgment and decree dated 27.03.1985 makes it clear that vide the said decree, the plaintiff was held entitled to get the vacant possession of the rented premise from the tenant-defendant and further, for the arrears of rent. It is clear on record that a Commissioner was appointed in the matter by the Executing Court and as per his report dated 05.09.2006, a newly raised partition existed on the site. It is also clear on record that the judgment-debtors themselves, specifically admitted in the application that they, for the sake of convenience, had made a way after opening an Almirah in the rented premise to

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enter into the land of Municipality and such temporary way was again closed by them. Meaning thereby, there did exist an open way in the rented premise and the same was closed vide a partition by the judgment-debtors after the decree having been passed. As is the settled position of law, a tenant is not entitled to make any substantial change or alteration in the rented premise without the consent of the landlord. Further, the tenant is under an obligation to hand over the vacant possession of the rented premise as it was rented to him.

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So far as the jurisdiction of the Executing Court is concerned, the Executing Court is totally within its jurisdiction to pass appropriate orders for satisfaction of the decree in its true letter and spirit. The decree in question was for eviction and the judgment-debtors were under an obligation to hand over the vacant possession of the disputed premise to the decree-holder.

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Order 21 Rule 35(3), CPC provides as under:

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“(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decreeholder in possession.”

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Dealing with a similar situation, the Hon’ble Apex Court, while analyzing the provision of Order 21 Rule 35(3), CPC, in the case of B. Gangadhar vs. B.G. Rajalingam; AIR 1996 SC 780 , held as under:

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“ Rule 35(3) of Order 21 C.P.C. itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the court executing the

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decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgmentdebtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any constructions on the property pending suit, the decree-holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession.”

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The Court, further observed as under:

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“ What is relevant is only a warning by the bailiff to deliver peaceful possession and if they cause obstruction, the bailiff is entitled to remove the obstruction; cause the construction demolished and deliver vacant possession to the decree holder in terms of the decree.”

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In view of the above ratio, the order passed by the learned Executing Court being totally in consonance with law does not deserve any interference.

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In view of the above, the present revision petition being devoid of merits is dismissed .

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All pending applications, if any, stand disposed of .

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(REKHA BORANA),J

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3-T.Singh/-

Smt.Basanti Devi and Ors. v. Lrs.of Balkishan

Case brief

What is this about?

What did the court decide?

Smt.Basanti Devi and Ors. v. Lrs.of Balkishan

Case brief

What is this about?

What did the court decide?

What the court decided

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