Mintoo Lal v. Naraindas — 1966 DIGILAW 48 (ALL)

JUDGMENT Satish Chandra, J. - This is a judgment-debtor appeal. It arises out of restitution proceedings. 2. Narain Das, the respondent, filed a suit (No. 29 of 1957) for possession over a house. To this suit he impleaded the appellant Mintoo Lal and one Jugal Kishore. He alleged that the house in dispute belonged jointly to him and Jugal Kishore defendant No. 2. Jugal Kishore had sold the house to Narain Das without any right. He claimed possession over the entire house and in the alternative he claimed possession over his half share of the house. The suit was contested by the transferee, namely Mintoo Lal, on the ground inter alia that Jugal Kishore had sold only the site of the land and that he made the constructions over it at his own expense of about Rs. 6,000/-. He also pleaded that since the suit was for possession over the house, it was under valued and the court-fee paid was insufficient. The plaintiff Narain Das thereupon applied for amendment of the1 plaint by an application dated 17-5-1951. He prayed that the word "house" be deleted from the relief clause of the plaint and be substituted by the words "site of the Khandhar." He also prayed for the necessary amendments in other parts o the plaint. The value of the site involved in the suit was determined a Rs. 3,000/-. The plaintiff accordingly valued the suit at Rs. 3,000/- and paid court-fee accordingly. The suit therefore, was for possession of the site alone. The trial court decreed the suit on 20-2-1953 for possession over half share of the house. It re fused the relief for demolition of the construction on the ground that without a partition the plaintiff could not claim demolition of any specific half portion of the house. 3. In due course the plaintiff Narain Das put the decree in execution. Execution case No. 181 of 1954 was for recovery of the costs of the suit which amounted to Rs. 539/13/-. This was sought to be recovered by attachment and sale of the half share of the judgment debtor Mintoo Lal in the house and its site. The decree holder himself purchased the half share. Execution case No. 415 of 1955 related to the decree for possession over the half share in the house. 539/13/-. This was sought to be recovered by attachment and sale of the half share of the judgment debtor Mintoo Lal in the house and its site. The decree holder himself purchased the half share. Execution case No. 415 of 1955 related to the decree for possession over the half share in the house. In fructification of both these executions, the plaintiff-decree-holder Mintoo Lal, obtained actual possession over the entire house on 19-10-1955. 4. Narain Das, the judgment debtor, made an application for amendment of the decree on 4-11-1955. This application was under Sec. 152, C. P. C. It stated that after the amendment of the plaint the suit related to the site of the house alone and not to the house. The decree has, under some mistake, been passed for a half share of the house. It requested correction so as to conform the decree to the relief claimed in the plaint. It was prayed that the decree be corrected so as to be for a half share in the site only. The trial Court rejected the application. Mintoo Lal filed a revision in this Court and succeeded. By the judgment dated 6-1-1958 this Court allowed the application for rectification and directed that the judgment and the decree shall both be corrected so as to relate to a half share in the site alone. Shortly Allahabad High Court thereafter the judgment debtor applied for restitution. He prayed that possession of the house be restored to him. This application was contested by the plaintiff decree-holder Narain Das on various grounds. He urged that in view of the decree and in view of the result of the execution of the decree for costs, he, that is to say, Narain Das, has become the owner of the entire site and of a half share in the house. The judgment-debtor Mintoo Lal having no interest in the site is at best entitled to remove the materials of the half portion of the house belonging to him. In this situation he is not entitled to possession of any specific part of the house, much less to possession over the entire house by dispossession of the decree holder. The trial Court recalled the objections. In this situation he is not entitled to possession of any specific part of the house, much less to possession over the entire house by dispossession of the decree holder. The trial Court recalled the objections. It held that the scope and intent of a proceeding under Sec. 144, C. P. C. is to restore the parties to the position which they would have occupied but for such decree as has been varied or reversed. In view of the decree as it stands after correction, the plaintiff was only entitled to a formal delivery of possession over a half share of the site only in accordance with Order XXI, Rule 35(2), C.P.C. By his purchase of the half share of the house in execution of the decree for costs, the plaintiff decree holder only became a co-sharer with the judgment-debtor and as such he could only get joint possession over the constructions, even if the effect of the decree and of the auction purchase be combined, and the judgment-debtor Mintoo Lal could not be ejected from any portion of the house. He is hence, entitled to be restored back to possession in restitution. He accordingly directed that the judgment-debtor be put back in actual possession of the house by ejectment of the decree-holder Narain Das. 5. The decree-holder went up in appeal. The lower appellate court held that the application for restitution was maintainable. The decree for costs not having been modified the delivery of possession in execution thereof cannot be set aside. The decree-holder cannot be ousted from possession of the half share of the house site purchased by him in execution of the decree for costs. But since the judgment-debtor was entitled to an undivided half share in the house he was entitled to be put in joint possession thereof under Or. 21, Rule 35, Cl. (2), C. P. C. He also directed that this restoration of possession shall last only so long as the decree-holder is not able to obtain an enforcible order for the demolition or removal of the half portion after ascertaining it by means of a partition. 6. Aggrieved judgment-debtor Mintoo Lal has come to this Court in second appeal. The decree-holder has filed a cross-objection. 6. Aggrieved judgment-debtor Mintoo Lal has come to this Court in second appeal. The decree-holder has filed a cross-objection. For the appellant it is urged that in restitution the court is bound to relegate the parties to the position which they would have occupied prior to the decree or at any rate to such position which they will occupy after execution of the ultimate decree. It is urged that if the decree after amendment, which is only for possession of a half share in the site, is executed, the decree-holder will be entitled to get only formal possession under Order 21, Rule 36, C. P. C. He will not be entitled to actual possession of any part of the house or the site by ousting the judgment-debtor, even in combined execution of the decree for costs, whereby he purchased the half share in the house and the site, and the decree for possession of half of the site. 7. I am not satisfied as to the correctness of these submissions. There are several answers to them. In the case of Rodger v. Comptoir D' Es-comple de paris, (1871) 40 L. J. P. C. 1 at p. 1 : 19 W. R. (Eng.) 449 at 452. Lord Cairns observed : "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors and when the expression "the act of the Court" is used it does not mean merely the act of the primary Court or of any intermediate Court of appeal but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter to the Highest Court which finally disposes of the case". 8. The Supreme Court adverting to the doctrine of restitution in Bhagwan Singh v. Sri Krishna Das, A. I. R. 1953 S.C. 136, ruled : ". . The doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case". 9. 9. In Sohan Bibi v. Baijnath Das, 50 Alld. 767 : A. I. R. 1928 All 293 Mukherjee, J. held that Sec. 144 lays down a procedure where under the court is under an obligation to act rightly and fairly according to the circumstances towards all the Parties involved. Mootham, J. in the Full Bench decision of Jogendra Nath Singh v. Hira Sahu, A. I. R. 1948 All. 252 approved of this dictum and observed that Sec. 144 should not be narrowly construed so as to impose a restriction upon such an obligation of the court. 10. These authorities lead to the position that in proceedings for restitution the court has to consider the equities arising in the case and the demand for justice that the rights of both the rival parties make; and to pass such an order as will do justice to both the parties. The status quo ante is not to be achieved blindly. Such relief has to be given as is properly consequential on the reversal or variation of the decree or order. To find the appropriate relief the court has to see that the party applying for restitution is entitled to a benefit under the reversing decree and that such benefit has not been extinguished or mitigated by reason of supervening events which have either changed the subject-matter of the benefit or its character and incidents. 11. The decree-holder ultimately obtained a decree for possession of half share in the site. In execution of the decree for costs he became the auction-purchaser of the other half share in the site and also of a hall share in the house. The decree for costs has not been varied. The judgment-debtor has no right of restitution for whatever may have happened in the execution of the decree for costs. As a combined operation of both the executions, the decree holder obtained actual possession of the entire house and site on 19-10-1955. This was done validly on that date. After the amendment of the decree, the judgment-debtor has regained an interest in the half share of the house without having any interest in its site. 12. As a combined operation of both the executions, the decree holder obtained actual possession of the entire house and site on 19-10-1955. This was done validly on that date. After the amendment of the decree, the judgment-debtor has regained an interest in the half share of the house without having any interest in its site. 12. The judgment-debtor claims that in restitution the status quanta should be attained, namely he should be put back in actual possession of the house by dispossessing the decree, holder and the decree-holder should be put in the position which he would occupy if he were to execute the decree for possession of the half share in the site. This cannot happen because the decree for costs has not been varied or set aside. The original decree for costs remains and, whatever may have happened in its execution also remains an unalterable fact. The judgment-debtor has by this supervening event, lost a half share in the house as well as in the site, which he possessed on the date when the decree was originally passed. To this extent the subject-matter over which his right if restitution can operate has extinguished. The court cannot lose sight of this reality. The right of restitution, should, in justice, be enforcible only pro tanto. 13. The lower appellate court has held that the judgment-debtor is entitled to be restored to joint possession over the house, to the extent of his half share, under Order 21, rule 35(2), C. P. C. It has also directed that the joint possession will last so long as the decree-holder is not able to obtain an enforcible order for demolition or removal of this half portion of the building belonging to the judgment-debtor, after ascertaining this half by means of a partition. A decree for joint possession postulates that the right of possession of both the parties in the property are coextensive but in certain specified shares. The rights must extend to the entire property. If one party has no interest in the land but only a share in the materials, he has no right to retain them on such land. He is entitled to take away his share of the materials after getting it ascertained. The decree-holder can lawfully keep his share of the materials affixed and embedded in the land as at present. The judgment-debtor is not so entitled. He is entitled to take away his share of the materials after getting it ascertained. The decree-holder can lawfully keep his share of the materials affixed and embedded in the land as at present. The judgment-debtor is not so entitled. There is thus no unity in the nature and extent of the rights of possession of the two parties in the house. The character and incidents of the rights of the parties not being identical, they are not in a position to possess a house jointly. It will be inappropriate to direct delivery of joint possession because in doing so the court will tacitly affirm that the judgment-debtor can continue to retain his share of the house on decree-holders land against his will. 14. In the lower appellate court reliance was placed upon a decision of this Court in Sarvi Begum v. Taj Begum, A. I. R. 1914 All. 511. In that case it was held that where an undivided share in a house is purchased at an auction, the auction purchaser is entitled to delivery of possession under Order 21, rule 95 read with Order 21, rule 35(2) and not under Order 21, rule 96. There the question arose as against the judgment-debtor. Rule 96 does not apply where the judgment-debtor is in possession. It applies when the property is in the occupation of a tenant or other person. Moreover, in that case the purchase was not of the materials of a house alone but of an undivided share in the house. As such it presumably carried the same share in the site also. The case is, therefore, distinguishable and is of no help in resolving the situation which has arisen in this case. 15. The result is, that the judgment-debtor is not entitled to obtain vacant possession of any part of the house. He cannot be put in joint possession. It was faintly suggested that a partition may be effected in the present proceedings. The point was not seriously pressed. Without a full-dress argument, I am not prepared to express an opinion on the question whether a court of restitution has jurisdiction to direct partition in a claim for mere possession. The suit was not for partition. The provisions of the Indian Partition Act apply only to a suit for partition. They will not be attracted to the present proceedings. Without a full-dress argument, I am not prepared to express an opinion on the question whether a court of restitution has jurisdiction to direct partition in a claim for mere possession. The suit was not for partition. The provisions of the Indian Partition Act apply only to a suit for partition. They will not be attracted to the present proceedings. There are no plea, dings appropriate to a partition proceedings. There is no evidence either. The present is, hence, not a case where it will be desirable to have actual partition in the course of proceedings for restitution. That can be and should be done by a regular suit for partition or demolition. Under these circumstances, the judgment-debtor is only entitled to a declaration of his rights. 16. The appeal is dismissed. The cross-objection is allowed in part. The decree is set aside. The judgment-debtor appellant is declared to be the owner off a one-half share in the materials of the house in dispute without any interest in the site, Parties shall bear their own costs. Appeal dismissed Cross objection allowed.