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Krishna Veer v. Xii A.D.J., Meerut - WRIT - C No. 13336 of 1998  RD-AH 12818 (25 July 2007)
Civil Misc. Writ Petition No.13336 of 1998
XII Additional District Judge, Meerut & Anr.
Hon. Dilip Gupta, J.
This petition has been filed for setting aside the judgment and order dated 28th August, 1997 that has been passed by the XII Additional District Judge, Meerut by which the revision filed by the judgment debtor was allowed.
The petitioner had filed Original Suit No.395 of 1987 in the Court of Civil Judge, Meerut for specific performance of the agreement to sell dated 13th January, 1986. It was stated that private respondent no.2 Sher Mohammad had executed an agreement for sale of his entire 1/3 share in the two plots for a sum of Rs.20,000/-. The suit was decreed by the learned Civil Judge, Meerut by means of judgment and decree dated 2nd February, 1990. The said decree was put into execution and in the execution proceedings, the sale deed was executed in favour of the petitioner through the Court and the petitioner was also put in possession of 1/3 share of respondent no.2 in the two plots.
Thereafter, respondent no.2 Sher Mohammad filed an application dated 5th August, 1993 in Execution Case No.11 of 1990 for quashing the execution proceedings with the allegation that the report of the Amin regarding delivery of possession is false. This application was registered as Misc. Case No.52 of 1993. The petitioner filed his objection to the said application mentioning therein that respondent no.2 and the two co-sharers had divided the two plots in three equal shares and were cultivating their respective shares and the Court Amin had given possession of that portion of land which was in exclusive possession of respondent no.2 to the petitioner. A report had been prepared by the Court Amin on 27th July, 1993 and there was no compliant at all by the other two co-sharers. The learned Civil Judge dismissed Misc. Case No.52 of 1993 by the judgment and order dated 1st November, 1994. The Court found that the allegation made by respondent no.2 that the petitioner had been put in possession of the entire area of the two plots was wrong and that the other two co-sharers had not even raised any objection.
The respondent no.2 then filed a revision which has been allowed by the judgment and order dated 28th August, 1997 holding that the petitioner had been put into possession of the entire area of the two plots. The Revisional Court has, therefore, remanded the matter for fresh determination.
Learned counsel for the petitioner submitted that the order of the Revisional Court deserves to be set aside as the findings recorded by the Trial Court could not have been set aside without there being any material on record to indicate that the petitioner had been put in to possession of the entire land. He further submitted that the Revisional Court completely failed to take into consideration the fact that the other two co-sharers had not raised any objection.
Learned counsel for the respondents is not present even though the list has been revised.
The basic issue that had been raised by the respondent no.2 in the application that had been registered as Misc. Case No. 52 of 1993 was that the petitioner had been put into possession of the entire land of Plot Nos. 237(Aa) and 237(Bb) instead of 1/3 portion belonging to respondent no.2. Thus, it was only the other two co-sharers having 2/3 shares in the aforesaid plots who can be said to be aggrieved if the petitioner had been put in possession of any land over and above the 1/3 share of respondent no.2. These two co-sharers had not filed any objection and it was only the petitioner who moved the application. The learned Civil Judge had elaborately dealt with this aspect but the Revisional Court without appreciating this, has allowed the revision. The petitioner had come out with a categorical case that he had been put into possession of only 1/3 share belonging to respondent no.2 and this fact has also been stated categorically in paragraph ''8' of the writ petition. In the counter affidavit filed by respondent no.2, there is no reply to this specific averment. It is, therefore, clear that the petitioner had been put into possession of only 1/3 share that belonged to respondent no.2.
In this view of the matter, the order dated 28th August, 1997 passed by the Revisional Court cannot be sustained. It is, accordingly, set aside. The writ petition succeeds and is allowed.
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