Rajasthan High Court – Jodhpur
Gavara Devi vs Bikaner Golden Transport … on 16 September, 2008
1 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 2 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 3 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 4 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.