Gavara Devi vs Bikaner Golden Transport … on 16 September, 2008

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           S.B. CIVIL FIRST APPEAL NO.240/2002
                         Gavara Devi
                              Vs.
            Bikaner Golden Transport company & Ors.

Date of Order :: 16th September 2008.

      HON'BLE MR. JUSTICE DINESH MAHESHWARI


Mr.Arvind Samdariya, for the appellant.

                                  ....

      Learned    counsel    for   the    appellant   pleads   no

instructions.

      The matter having been listed in default category for

process fees and notices in relation to the sole respondent

having not been filed since long, it was considered appropriate

to examine the record before considering whether notices be

issued to the appellant or not.

      This appeal, though registered as a regular first appeal

under Section 96 of the Code of Civil Procedure (CPC), has in

fact been filed against the order dated 10.10.2002 as passed

by the Additional District Judge No.1, Bikaner while rejecting

after adjudication an objection petition (registered as Misc.

Case No.32/2002) as filed by the appellant purportedly under

Order XXI Rules 97 and 35 CPC in relation to the recovery of

possession of immoveable property in Execution Case No.

15/1998.

      This appeal was presented on a court fees of Rs.10/-

and with the note on valuation that the objection petition was
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not valued. While reporting on the matter, the office raised the

objections that the copy of decree has not been filed and

valuation has not been mentioned.

      The matter was listed before the Court from the defects

side on 29.10.2002. While waiving the office objection, this

Court ordered issuance of notice of appeal to the respondents.

However, the matter was also considered by this Court on the

prayer for interim relief and the same was declined after taking

into comprehension the relevant facts and the background of

the case with the following order:-


            "Office objection is waived. Issue notice of
      the appeal to the respondents.

             Heard the learned counsel for the
      appellant on the question of stay. From the order
      of the learned Additional District Judge No.1,
      Bikaner, it is apparent that the decree in respect
      of disputed land was passed more than 20 years
      ago and still the decree-holder has not
      succeeded to get the possession of the property.

              Earlier one Jethi Devi came as an objector
      with the contention that she was in possession of
      the property for the last 50 years. The objection
      petition, after enquiry, was dismissed on
      22.11.2001. Thereafter, on 6.8.2002 when the
      bailiff of the court went with the decree-holder for
      delivery of possession, the person present
      refused to deliver the possession and it was
      reported to the court that Smt. Jethi Devi was not
      prepared to part with possession and hence, in
      order to maintain peace at the time of the
      delivery of possession, help of a lady police
      constable may be provided. This time the
      appellant Smt. Gavara Devi came with a story
      that she was in possession of the disputed
      property for the last more than 20 years and the
      property was used by her for the upkeep of the
      cows and their offsprings. The petitioner
      examined herself and one Rajeshwari Devi in
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      support of her story. In rebuttal, Harbans Lal was
      examined on behalf of the decree-holder. The
      court heard the arguments and disbelieved the
      story of the appellant. The court found that earlier
      Jethi Devi used to object on the ground that her
      possession was 50 years old. After her petition
      was dismissed Gavara Devi surfaced and came
      with a story that she was in possession for the
      last 20 years. Learned court found that the
      property was in active litigation for the last 30
      years and the contention of Gavara Devi that she
      was having peacefully possession for 20 years
      was unacceptable. The contention raised by the
      appellant was to the effect that adjacent to the
      disputed property, her house which she
      purchased in 1994, is situate in the West. The
      contention was to the effect that a gate of the
      said house opened on the disputed property
      through which the objector was using the
      property. Needless to say that the house was
      purchased by Gavara Devi in the year 1994 and
      this purchase itself is not 20 years old.

              After going through the judgment of the
      trial court, I find no good ground to grant any stay
      in favour of the appellant. The stay application is,
      therefore, dismissed."



      Thereafter, the respondent No.2 was reported to have

expired and the appellant was exempted from the necessity of

bringing on record his legal representatives; and, on

26.08.2005, this appeal was ordered to be admitted for nobody

having appeared on behalf of the respondent No.1 despite

service.

      After admission, notices were again sent to the

respondent No. 1 that were received unserved, as reported on

06.02.2006.   Thereafter,   fresh   notices   were issued    on

07.02.2007 and they were also received unserved, as reported

on 09.07.2007. Ever since then, process fees and notices for
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         service on the respondent have not been filed despite

         repeated listing of the matter before the Deputy Registrar

         (Judicial) and the Registrar (Adm.); and now, when the case is

         listed in the Court in default category, learned counsel has

         pleaded no instructions.

               Although this appeal has been registered as civil regular

         first appeal but it relates to the order passed in rejection of the

         objections as raised in execution proceedings; and hence, this

         appeal is essentially an execution first appeal. As noticed by

         the Trial Court and by this Court, there is not even a

         semblance of right available with the appellant to raise

         objections or to resist delivery of possession in the related

         execution proceedings.

               Having regard to the overall facts and circumstances,

         and for want of merits in the case as already noticed in the

         order dated 29.10.2002, and for the appellant having failed to

         take requisite steps for prosecution of this appeal any further,

         it does not appear appropriate to issue notice to the appellant

         and to keep this appeal pending.

               For all the reasons aforesaid, this Court is clearly of the

         view that this appeal deserves to be dismissed for want of

         prosecution.

                        The appeal is, therefore, dismissed.



s.soni                                       (DINESH MAHESHWARI), J.