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2001 DIGILAW 113 (HP)

LOHARU RAM v. KEEMTU

2001-06-20

K.C.SOOD, KAMLESH SHARMA

body2001
JUDGMENT Kuldip Chand Sood, J.—This original side appeal arises out of the orders of learned Single Judge of this Court in OMP No. 268 of 1999 (C.S. No. 48 of 1999) dated June 28, 2000. 2. It appears, plaintiff Loharu Ram, filed a suit for declaration to the effect that he is owner in possession of the land subject matter of dispute, situate at Phati Nathan, Kothi Naggar in Tehsil and District Kullu as per Jamabandi for the year 1990-91 and further that the decree passed in appeal by this Court in RFA No. 355 of 1992 (Keemtu v. Rama and others) on 25.2.1997, is illegal, void, having been obtained by misrepresentation and fraud by Smt. Keemtu and, therefore, not binding on the plaintiff. In the alternative, a prayer is made for the recovery of rupees 3,65,000 on account of the sale price paid by the plaintiff to defendant No. 2 Smt. Kamlesh Kumari as bonafide purchaser of 10 bighas of land in dispute. 3. Alongwith this suit, an application under Order 39 Rules 1 and 2, CPC seeking to restrain the defendants from interfering with the possession of the plaintiff on the suit land or from plucking Plum and apple crop from the land, was filed. 4. The case of the plaintiff is that inspite of the decree and its execution, the plaintiff continues to be in possession of the land and is, therefore, entitled to the fruit crop. 5. The application is resisted by the defendant-respondents. It is the case of the defendant-respondents that pursuant to the decree passed by this Court in "RFA No. 355 of 1992" (Keemtu v. Rama Dogra and others), the respondent Keemtu was delivered possession of this land in execution of the decree and, therefore, the suit of the plaintiff Loharu Ram had become infructuous and the present application is redundant. According to Smt. Keemtu, she was delivered physical possession of the suit land on 16.1.1999 in Execution Petition No. 19 of 1998 which was filed in this Court by her. 6. Learned Single Judge in his orders observed that respondent Keemtu, has placed on record copy of the warrant of possession directing the delivery of possession of the land subject matter of the execution including the land in dispute. 6. Learned Single Judge in his orders observed that respondent Keemtu, has placed on record copy of the warrant of possession directing the delivery of possession of the land subject matter of the execution including the land in dispute. Perusal of the report of the Bailiff on the warrants prima facie shows that the possession of the land, in fact, was delivered to respondent Keemtu on 16.1.1999 after dispossessing Rama Dogra and other defendants, including the present plaintiff. The possession was delivered by "digging up a part of the land with the help of Kudal". In these circumstances, learned Judge concluded that prima facie it cannot be said that plaintiff was in possession of the suit land. 7. It was contended before the learned Single Judge that possession delivered was only symbolic in nature by raising the voice and no actual physical possession was delivered on the spot. However, the learned Judge on the basis of the report made by the Bailiff on the warrants of possession concluded, "the defendant prima facie appears to have been put in physical possession of the suit land." 8. In the absence of prima facie case the application was dismissed. Aggrieved, plaintiff is in appeal. 9. After having heard Mr. K.D. Sood, learned Counsel for the appellant, Mr. S.S. Mittal, learned Counsel for the respondent No. 1 and Mr. Neeraj Gupta, learned Counsel for respondent No. 2 and after perusing the record, we are of the view that the plaintiff-appellant has neither a prima facie case nor the balance of convenience is in his favour to entitle him to temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure. 10. Learned Counsel for the appellant vehemently contends that though a decree of this Court in RFA No. 355 of 1992 was executed under Order 21 Rule 35 of the Code of Civil Procedure in favour of the defendant-respondent Keemtu but actual physical possession was not delivered to her. According to the learned Counsel, mere symbolic possession given to the decree holder Smt. Keemtu respondent, in execution of the warrant of possession on 16.1.1999 would not show that plaintiff-appellant was dispossessed. 11. According to the learned Counsel, mere symbolic possession given to the decree holder Smt. Keemtu respondent, in execution of the warrant of possession on 16.1.1999 would not show that plaintiff-appellant was dispossessed. 11. Perusal of the warrant of possession in execution petition No. 19 of 1998 shows that Bailiff of the Court of the Senior Sub Judge, Kullu was directed to deliver the possession of the land in that suit, including the land subject matter of dispute, to the decree holder Keemtu and authorised him to remove any person(s) bound by the decree "who may refuse to vacate the same." The report of the Bailiff shows that the demarcation of the land subject matter of execution, i.e., khasra numbers 6041/55 and 54, was taken from Patwari and possession of the same was delivered to the decree holder after dispossessing Smt. Rama Dogra and other judgment debtors. Possession was delivered by digging the land by "kudali" in presence of the witnesses. A report of the transfer of possession was got entered in the daily diary of the Patwari at Sr. No. 199 dated 16.1.1999. Necessary corresponding entries were also made in the revenue record. 12. Perusal of these two documents, prima facie, makes it clear that pursuant to the warrants issued by this Court in Execution of the decree of this Court in civil suit No. 63 of 1983, the possession of the suit property, including the land subject matter of dispute, was delivered to Smt. Keemtu. 13. Mr. K.D. Sood, learned Counsel for the appellant strenuously urges that the possession delivered was symbolic and actual physical possession was not delivered to the decree holder respondent No. 1 and, therefore, it cannot be said that the respondent No. 1 is in possession of the suit property. We are not persuaded. There is nothing on the record to support this submission. As observed earlier, prima facie the report of the Bailiff dated 16.1.1999 read with the report of the Patwari, makes it clear that possession of the suit property was delivered to the decree holder respondent Keemtu by digging the land with the help of Kudal. 14. Order 21, Rules 35 and 36 of the Code of Civil Procedure deals with the legal position between the actual and symbolic delivery of possession against the judgment debtor or person claiming under him or on his behalf. 14. Order 21, Rules 35 and 36 of the Code of Civil Procedure deals with the legal position between the actual and symbolic delivery of possession against the judgment debtor or person claiming under him or on his behalf. Rules 35 and 36 of Order 21 the Code read: "35. Decree for immovable property,— (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. 36. Decree for delivery for immovable property when in occupancy of tenant.— Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property." 15. Patna High Court in Ram Prasad Ojha v. Bakshi Bindeshwari Prasad, AIR 1932 Pat. 145, pointed out distinction between actual and symbolic delivery of possession. Patna High Court in Ram Prasad Ojha v. Bakshi Bindeshwari Prasad, AIR 1932 Pat. 145, pointed out distinction between actual and symbolic delivery of possession. These two rules provide that if the property is in occupation of the judgment-debtor or of some one on his behalf, possession shall be delivered, if necessary, by removing the judgment debtor and placing the decree-holder in occupation of the property. However, if the property is of such a nature that the judgment-debtor is not in actual occupation of it, as for example, when the property is in occupation of a tenant, then the possession can only be delivered by proclaiming that possession has been delivered to the decree holder by the concerned Bailiff. Once decree holder is put in actual possession of the property, every body else is deemed to be ousted and dispossessed from it. 16. The expression "symbolic possession" is applied where possession is delivered under Order 21 Rule 35 (2) and Rule 36, whereas, actual possession is delivered under Order 21 Rule 35(1). The law is well settled that so far judgment debtor or any person in occupation on his behalf is concerned, even symbolic delivery of possession amounts to actual delivery of possession. Reference may be made to Full Bench Decision of Calcutta High Court in Juggobundhu Mukherjee v. Ram Chunder Bysack, (1880) ILR 5 Cal 584 (FB). The Full Bench of five Judges observed : "In the one case, the delivery of the land is to be made by placing the plaintiff in direct possession. In the other, the delivery is effected by the officer of the Court by going through a certain process prescribed by Section 224 (corresponding to Order 21, Rule 36 CPC), and proclaiming to the occupants of the property that the plaintiff has recovered it from the defendant. This is the only way in which the decree of the court, awarding possession to the plaintiff, can be enforced; and as, in contemplation of law, both parties must be considered as being present at the time when delivery is made, we consider that, as against the defendant, the delivery thus given must be deemed equivalent to actual possession". 16-A. This position was affirmed by the Privy Council in Sri Radha Krishan Chanderjee v. Ram Bahadur, AIR 1917 PC 197 (2). 17. Again in Maharaja Pratap Udai Nath Sahi v. Sunderbans Koer, AIR 1923 Pat. 16-A. This position was affirmed by the Privy Council in Sri Radha Krishan Chanderjee v. Ram Bahadur, AIR 1917 PC 197 (2). 17. Again in Maharaja Pratap Udai Nath Sahi v. Sunderbans Koer, AIR 1923 Pat. 76, it was observed: " Where symbolic possession is delivered in a case, where actual possession ought to have been delivered the symbolic possession will operate as actual possession. The delivery of symbolic possession even erroneously operates as actual possession against the judgment-debtor and his legal representatives." 18. The aforesaid view was followed in Manikayalo Rao v. Narasimha Swami, AIR 1966 SC 470. The view that even symbolic delivery of possession to the decree holder against the judgment-debtor or in fact any other person claiming under him would amount to actual delivery of possession qua judgment-debtor and such other person, was upheld. 19. In the present case, admittedly, plaintiff claims his title and possession under judgment-debtor Kamlesh Kumari, having purchased it pendente lite. 20. We are in agreement with the learned Single Judge that there is neither prima facie case nor balance of convenience in favour of appellant Loharu Ram. There is no force in this appeal. The same is dismissed. There will be no order as to costs. 21. Needless to say that observations made herein above are only for the purpose of disposal of this appeal and shall not be any reflection on the merits of the suit which shall be decided on its own merits uninfluenced by our observations. Appeal dismissed. -