JUDGEMENT
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(1.)This Civil Revision is directed against the order of the Sub-Judge 1st Class dt. 23-9-83 in execution No. 82/81 in Suit No. 1002/74. The petitioner in the Civil Revision had raised objections in the said execution proceedings for the issue of the warrants of actual possession of premises No. 202/A-1A, Gurdwara Committee Building, Sadar Bazar, Delhi. He claimed the possession of the said premises as a lawful tenant inducted by the defendant Gurdwara Committee
(2.)Plaintiff, Charan Singh had filed the said suit against the defendant, Gurdwara Committee and the General Secretaries of the said Committee. The suit was for mandatory injunction and perpetual injunction for restraining the letting out or giving the said shop to anybody else and for a mandatory direction to consider the plaintiffs application for letting out the shop to him. The said suit was filed on 25-8-72. The plaintiff alleged that by virtue of an agreement dt. 11-4-55 between himself and defendant No. 1 he was entitled to the said premises. It was alleged by the plaintiff that he was in possession of Quarter No. 11 in the said building and it was agreed that he would surrender the possession of the said Quarter and Shift to Quarter No. 9. It was further alleged that under the said agreement he was also promisee that he would be entitled to get a shop in the said building and in the line of shops occupied by Dasonda Singh to Ram Lal Mochi. It was then alleged that no time limit was fixed for the allotment of a plot. The shop 202/1, which was occupied by Ram Lal Mochi, had fallen vacant. The plaintiff, therefore, claimed that the said shop be let out to him and not to anybody else. The defendants in their written statement claimed that the alleged agreement dt. 11-4-55 had exhausted itself and was not operative. The reason was that instead of Quarter No. 9 the plaintiff later on preferred Quarter No. 1/436 which was much bigger in area and abutted on a 16' wide street as against a 5' wide street abutting Quarter No. 9. Two premises had fallen vacant in the said shop line from time to time but the plaintiff never showed any desire nor made any request for the allotment of said shops. The suit was filed on 25-8-72 but before that on 6-8-72, the said premises were let out to the objector and some others. But after filing of the said written statement the defendants did not show any interest in the suit and allowed the matter to be proceeded ex parte. The suit was dismissed by the trial court on 19-7-78. The plaintiff preferred an appeal. The defendants did not contest the appeal and allowed it to proceed ex parte. The petitioner herein claims that after letting out the shop in question to him the defendant committee in collusion with the plaintiff allowed the suit to be decreed by not contesting the same. The appellate court decreed the suit.
(3.)Two contentions are raised by the petitioner in this revision. The first contention is that the collusive decree between the plaintiff and the defendant cannot put to an end a legal right in favour of the petitioner/third party. It is also contended that the trial court was wrong in ordering issuing warrants of actual possession against the petitioner. The plaintiff was only entitled to symbolic possession in law and not the actual possession. The counsel for petitioner has relied upon Sarup Singh v. Daryodhan Singh AIR 1972 Delhi 142 (FB) in support of the proposition that no warrant of possession can be issued in execution of decree for mandatory injunction. The counsel further argued that his right to lawful tenancy is governed by Delhi Rent Control Act and the tenant cannot be dispossessed except by decree of eviction passed under the Delhi Rent Control Act. He has relied upon the decision of this Court reported in Sunder Dass v. Mulkh Raj, AIR 1981 Delhi 85. The Counsel then submitted that neither of the decisions of this Court were considered by the first appellate court although they were cited before the said court.
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