JUDGMENT Kamlesh Sharma, J.: The petitioner is decree holder, whereas, the respondent is judgment debtor. The decree holder is aggrieved by order dated 19.8.1997 of Sub Judge (2), Palampur whereby her execution petition is -dismissed as infructuous by holding that the suit land is comprised of Khasra Nos. 1013 to 1017, whereas, the shop in dispute in respect of which decree for possession has been passed in favour of the decree for possession has been passed in favour of the decree holder is found situated over Khasra No. 986 as per the report dated 5.12.1995 of Naib Tehsildar, Jaisinghpur. 2. The-brief-facts of the case are that describing the shop in dispute by boundaries, the decree holer filed suit for possession by way of ejectment, which was resisted by the judgment debtor denying the ownership of decree holder and the relationship of landlord and tenant between him and decree holder, and alleging that the shop in dispute which is situated over Khasra No. 986 is owned by Mandir Lakshmi Narain (Thakurdwara) Alampur, Tehsil Jaisinghpur, District Kangra. In the replication the allegations made in the plaint were reiterated and contrary stated in the written statement was jienied and it was further alleged that the shop in dispute is situated on Khasra Nos. 1013 to 1017. On the basis of the pleadings of the parties the material issues framed were whether the decree holder or Mandir Lakshmi Narain (Thakurdwara), as alleged by the judgment debtor, is the owner of the shop in dispute, and also under whom the judgment debtor is tenant, which were decided in favour of the decree holder, with the result a decree for possession of the shop in dispute, as detailed in para 1 of the judgment, by way of ejectment of judgment debtor, was passed in favour of the decree holder. The shop in dispute was detailed as under in para 1 of the judgment:- "......a shop, abutting PWD road on the western side, Lakshmi Narayan Mandir on the Northern side, court-yard and house of the owner on the Easter side and shop of the owner on the Southern side, situated in the land entered.......Khasra Nos. 1013, 1014, 1015, 1016 and 1017 kita 5 land measuring 0-04-14 Hects., as per Jamabandi for the year 1982-83 of Mohal Alampur, Tehsil Jaisinghpur, District Kangra, HP. hereinafter to be referred as disputed shop (khasra Nos.
1013, 1014, 1015, 1016 and 1017 kita 5 land measuring 0-04-14 Hects., as per Jamabandi for the year 1982-83 of Mohal Alampur, Tehsil Jaisinghpur, District Kangra, HP. hereinafter to be referred as disputed shop (khasra Nos. of the disputed shop has been mentioned in the replication)." 3. Admittedly, the above judgment and decree dated 21.5.1991 of Sub Judge 1st Class (Court No.2), Palampur, District Kangra became final between the parties, as no appeal was filed by the judgment debtor against it. It may be mentioned that an application under Order 1 Rule 10 C.P.C. filed on behalf of Mandir Lakshmi Narain (Thakurdwara), Alampur for impleading it as party respondent alleging that the shop in dispute is situated on Khasra No. 986 owned by it> was rejected by order dated 16.1.1989, which was also not assailed further. The judgment debtor had also made an application under Order 26 Rule 9 C.P.C. for appointment of Local Commissioner for the purpose of demarcating the land, over which the shop in dispute is situated, which was also rejected by order dated 10.7.1990 holding that the real controversy between the parties is whether the decree holder is the owner and also whether there is relationship of landlord and tenant between her and the judgment debtor, which can be decided without getting the land, over which the shop in dispute was situated, demarcated. 4. On the failure of judgment dentor to deliver the possession of the shop in dispute in pursuance of the decree, Execution Petition No. 17/91 was filed by the decree holder, to which objections were filed by the judgment debtor almost on the same grounds on which the suit was resisted that he is the tenant under-the Mandir Lakshmi Narain (Thakurdwara) Alampur and not the decree holder, who is owner of Khasra No. 986, over which the shop in dispute U situated. The objections were dismissed on 26.11.1993 by the executing court and warrant of possession was issued, against which Civil Revision Petition No. 28 of 1994 was preferred by the judgment debtor, which was dismissed as withdrawn on 30.9.1994. 5.
The objections were dismissed on 26.11.1993 by the executing court and warrant of possession was issued, against which Civil Revision Petition No. 28 of 1994 was preferred by the judgment debtor, which was dismissed as withdrawn on 30.9.1994. 5. Again an application under Section 151 C.P.C. was filed by the judgment debtor before the executing court raising same and similar objections, which was also dismissed on 24.6.1995 and the warrant of possession for execution was assigned to the Revenue Agency by the executing Court, which gave the report that the shop in dispute does not exist on the khasra numbers detailed in the decree but is existing on Khasra No. 986. Accepting mis report the execution petition was dismissed as infructuous by the executing court vide its order dated 8.12.1995, which was challenged in Civil Revision Petition No. 64 of 1996 in this court by the decree holder. The revision petition was allowed and order dated 8.12.1995 was set aside by the learned Single Judgement of this Court on 27.8.1996 directing the executing court to proceed in the matter in accordance with law in the light of following observations made in the order :- "There is no denying that a decree for possession of shop was passed in favour of the petitioner. Admittedly, the possession of the shop in question has not been delivered to the petitioner in terms of the decree dated 21.5.1991. Therefore, the Executing Court committed a grave error in coining to the conclusion that the execution petition had become infructuous and in proceeding to dismiss the same. On the receipt of the report of the Naib Tehsildar that there was no shop in the land detailed in the decree, the Executing Court ought to have afforded an opportunity to the decree holder to show cause against the correctness of the report submitted by the Naib Tehsildar and /or to identify the shop in respect of which the decree had been passed in his favour." 6. Now the executing court by passing the impugned order has again dismissed, the execution petition as infructuous after considering the objections filed, by the decree holder to the report dated 5.12.1995 of Naib Tehsildar, Jaisinghpur, which is under challenge in this revision petition. 7. This Court has heard learned counsel for the parties and gone through the record.
Now the executing court by passing the impugned order has again dismissed, the execution petition as infructuous after considering the objections filed, by the decree holder to the report dated 5.12.1995 of Naib Tehsildar, Jaisinghpur, which is under challenge in this revision petition. 7. This Court has heard learned counsel for the parties and gone through the record. Learned counsel appearing for die decree holder has urged that the executing court has gravely erred in not exercising its jurisdiction in identifying the shop in dispute by the boundaries, as detailed in para 1 of the plaint. The precise submission of the learned counsel is that if there is inconsistency with respect to the shop in dispute in relation to its boundaries and khasra numbers as given in para 1 of the judgment, the boundaries should have prevailed and the executing court should have got identified the shop in dispute on the spot by the decree holder by resorting to the boundaries, as the description of khasra numbers under these circumstances is a mere surplus age. It is also submitted by the learned counsel for the decree holder that since the decree for delivery of possession is qua the structure i.e. shop and not the land between the landlord and tenant, the executing court should have assigned the warrant of possession to the Bailiff of the court with direction to deliver the possession on the spot by associating the decree holder to identify the shop, and in the case of any difficultly the shop could be identified on the basis of boundaries and demarcation of land, over which the shop in dispute was situated, by the Revenue Agency was not necessary. Referring to the directions made in judgment dated 27.8.1996 passed in Civil Revision Petition No.64 of 1996 it is also urged that no opportunity was given to the decree holder to identify the shop on the spot. Learned counsel for the decree holder has also referred to catena of judgments of different High Courts in support of his submissions, which will be referred to later. 8.
Learned counsel for the decree holder has also referred to catena of judgments of different High Courts in support of his submissions, which will be referred to later. 8. On the other hand, learned counsel for the judgment debtor has submitted in support of the impugned order that the executing court has adopted right course to get the land, over which the shop in dispute is situated, demarcated from the Revenue Agency to identify the same in order to hand over its possession to the decree holder. According to the learned counsel for the judgment debtor the findings of fact arrived at by the executing court that the shop in dispute is situated on Khasra No. 986 and not on Khasra No. 1013 to 1017, as detailed in the decree, which makes the decree unexcitable and the execution petition infructuous, cannot be interfered with in the present revision petition under Section 115 C.P.C. 9. This Court does not find substance in this submission because if it is found that the executing court has refused to exercise the jurisdiction by holding the execution petition as infructuous without giving an opportunity to the decree holder to identify the shop in dispute on the spot or by identifying the shop by boundaries, this Court can interfere in exercise of its revisional jurisdiction under Section 115 C.P.C. It is correct that the executing court cannot go behind the decree if the decree sought to be executed is nullity for lack of inherent jurisdiction in the court passing it, which is not the case of the judgment debtor. Therefore, it cannot be said that the decree is not executable and it is for the executing court, to hold proper-enquiry and determine the question with regard to the identity of the shop in dispute, which has not be delivered to the decree holder.
Therefore, it cannot be said that the decree is not executable and it is for the executing court, to hold proper-enquiry and determine the question with regard to the identity of the shop in dispute, which has not be delivered to the decree holder. For delivering the possession of the shop in dispute the proper course for the executing court was to hand over the warrant of possession to the Bailiff for delivering the possession of the shop on the spot on its identification by the decree holder instead of getting the demarcation of the Khasra numbers over which the shop in dispute is situated as per the detail given in para 1 of the judgment Even after the receipt of the report of the Revenue Agency that-there is no shop on the khasra numbers as given in the judgment, the executing court was required to make further enquiry to identify the shop in dispute by the boundaries given in the judgment. By now it is well settled that in the event of conflict between the area and the boundaries, the description of the boundaries should prevail. (Please refer to Munder Lal Sahu & Ors. v .Jiwan Ram Marwari, AIR (31) 1944 Patna 254; Kali Saran Nanak Chand v. Hari Ram & Ors., AIR 1958 Punjab 13; Varkey v. Bhaskaran Nair, AIR 1958 Kerala 78, Rahim Bux & Ors. v. Mohammed Shaft, AIR 1971 Allahabad 16, M/s Roy and Co. & Anr. v. Smt-Nant Bala Dey & Ors. AIR 1979 Calcutta 50; Smt. Lalmuni Devi & Ors. v. Shiv Shankar Tiwary & Ors. AIR 1980 Patna 184; Dr. Mudhukar Trimbak Gore v. Vasant Ramkrishna Kolhatkar, AIR 1983 Bombay 277 and Roomal & Ors. v Siri Niwas AIR. 1985 Delhi 153). 10. So far the present case is concerned, it is finally decided between the parties that the judgment debtor is in possession of the shop in dispute as a tenant under the decree holder. His allegation that he is tenant of the shop in dispute under Mandir Lakshmi Narain (Thakurdwara) is finally decided against him, therefore, he cannot resist the handing over of possession of the shop in dispute on the ground that it is situated on the land which is not owned by the decree_holder.
His allegation that he is tenant of the shop in dispute under Mandir Lakshmi Narain (Thakurdwara) is finally decided against him, therefore, he cannot resist the handing over of possession of the shop in dispute on the ground that it is situated on the land which is not owned by the decree_holder. Admittedly, the judgment debtor is in possession of only one I shop at Mahal Alampur, Tehsil Jaisinghpur, District Kangra and that shop has been held to be the shop in dispute owned by the decree holder. Therefore, even if it is described by wrong khasra numbers in the judgment/decree it can be easily identified by the boundaries given in the judgment/decree, for which no attempt has been made. The executing court has also not cared to comply with I the directions given by this Court in judgment dated 27.8.1996 passed in Civil Revision Petition No. 64 of 1996 to give an opportunity to the decree holder to identify the shop on the spot 11. In the result, the impugned order dated 19.8.1997 passed by Sub Judge 1st Class (II), Palampur, District Kangra cannot stand the scrutiny of this Court and is set aside with direction that the warrant of possession of the shop in dispute be handed over to the Bailiff to hand over the possession thereof on the identification on the spot by the decree holder of in case of difficulty, by identifying the shop in dispute by the boundaries given in para 1 of the judgment/decree. The revision petition is accordingly allowed. No costs. Records be sent back immediately. The parties are directed to appeal- before the trial Court on 13.1.1999.