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Daya Ram v. Shiv Narain And Others - WRIT - C No. 66835 of 2006 [2005] RD-AH 7584 (15 December 2005)


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Civil Misc. Writ Petition No.66835  of  2006

Daya Ram..........................................................................Petitioner


Shyam Narain.......................................................................Respondents


Hon. Tarun Agarwala, J.

Suit No.385 of 1972 was decreed and an execution case No.78 of 1984 was instituted against the petitioner praying that the Court Amin be directed to hand over the possession to the decree holder from the judgment debter. The Court Amin visited the spot and found that the petitioner was in possession and accordingly an application under Order 21 Rule 97 was filed for dispossessing the petitioner. The petitioner filed his objection alleging that he was in possession for the last 19-20 years and had perfected his title on the basis of adverse possession. It was also alleged that the fact that he was in possession was recorded in the order passed in proceedings under Section 145 of the Criminal Procedure Code. The petitioner further urged that he was not a party in the suit and therefore, he could not be evicted in these execution proceedings. The executing court rejected the objection of the petitioner against which, a Misc. Appeal was filed, which was also rejected. Consequently, the writ petition.

In my opinion, the petitioner is not entitled for any relief;.

The petitioner cannot claim reliance upon the order passed under Section 145 Cr.P.C. The finding of possession under Section 145 Cr.P.C. was only tentative in nature. The lower appellate court has given a categorical finding that the petitioner had taken forceful possession during the execution proceedings  and raised the alleged construction. The Court below had also given a finding that the petitioner was not in a physical possession over the last 19-20 years.

In view of the aforesaid, the petitioner, being a rank trespasser, and having taking possession forcefully, the execution proceedings were rightly proceeded against him for his dispossession. The Court is not inclined to interfere in the impugned order passed by the Executing Court and the appellate court.

The writ petition is dismissed.

Dated: 15.12.2006



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