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2001 DIGILAW 179 (HP)

DAULAT RAM v. SURINDER SINGH

2001-08-02

KAMLESH SHARMA

body2001
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioners are judgment debtors whereas the respondent is a decree holder and they will be referred to as such in this judgment. The judgment debtors are aggrieved by the order dated 19.1.2000, whereby the Executing Court has issued warrant of possession for the execution of the decree with a direction to demolish the construction from the disputed land and to hand over the vacant possession thereof to the decree holder. The judgment debtors had filed an appeal against the impugned order before the District Judge, Una, which was dismissed as not maintainable vide order dated 17.3.2001. Thereafter the present revision petition was filed alongwith an application under Section 5 of the Limitation Act for condonation of delay which was allowed vide order dated 3.5.2001. 2. The brief facts of the case are that the decree under execution was passed in Civil Suit No. 79 of 1997, filed by the decree holder for permanent prohibitory injunction restraining the judgment-debtors from changing the nature and character either by way of raising any sort of construction or from ousting the plaintiff from joint possession of the land measuring 2-14 kanals, bearing khewat No. 315, khatauni No. 470, khasra No. 2167 as entered in jamabandi for the year 1989-90, situate in village Nangal Khurd, Hadbast No. 471, Sub Tehsil Haroli, District Una, till the suit land is partitioned. The judgment-debtors resisted the suit inter-alia on the grounds that although the land in suit is not legally partitioned by metes and bounds, yet the parties are in separate possession by mutual family arrangement. It was also alleged that the judgment-debtors have major share in the suit land and they are not in possession in excess of their share whereas the decree-holder has only negligible share therein. According to the judgment-debtors, they had already filled in the foundations and raised construction upto 6-7 feet in height to which the decree holder never took exceptions and as such, he was estopped to file the suit by his own acts and conduct. 3. On the pleadings of the parties, the following issues were framed:— 1. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPR 2. Whether the plaintiff has cause of action to file the suit? OPP 3. Relief. 4. After framing the issues, the case was listed for plaintiffs evidence on 23.4.1999. 3. On the pleadings of the parties, the following issues were framed:— 1. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPR 2. Whether the plaintiff has cause of action to file the suit? OPP 3. Relief. 4. After framing the issues, the case was listed for plaintiffs evidence on 23.4.1999. In the meantime, in the application under Order 39 Rules 1 and 2 CPC filed alongwith the suit, the matter was fixed for conciliation on 24.12.1998 when the parties were directed to appear before Permanent Lok Adalat on 22.1.1999. The main civil suit was listed before Permanent Lok Adalat when the statements of learned Counsel for the judgment-debtors as well as decree-holder were recorded and the suit was finally disposed of by the following order : "22/1/1999: Present: Surinder Singh, with Col. Sh. N.K. Bali, Adv. Sh. S.N. Bali, Advocate Col. for defendants. Conciliation effected. The statement of learned Counsel for the defendants 1 to 4 and plaintiff recorded. The parties admit that the total land of the suit land adjoining the road is 38 feet. Out of that land, the defendants No. 1 to 4 will not raise any construction towards the southern side and will leave piece of land measuring 9.6 feet vacant for user and share of the plaintiff from the front side. The site plan Ex. PA is tendered. The statement of learned Counsel for defendants No.1 to 4 is agreeable to Surinder Singh, plaintiff. In view of the statement of learned Counsel for the defendants No.1 to 4 and the plaintiff Surinder Singh, the consent decree is accordingly passed to the effect that the defendants No. 1 to 4 will not raise any construction towards the southern side of the suit land abutting the road which shall be left to the share of the plaintiff. In case any foundation has been dug on the land falling in the share of Surinder Singh, then the same will be removed by the defendants. The parties shall bear their own costs. Consent decree be drawn accordingly. The file after completion be consigned to records. Announced : Sd/- 22.1.1999 District Judge, Una. 5. The learned Counsel for the judgment-debtors had admitted in his statement that area of Khasra No. 2167 is 2 kanals 14 marlas in which share of decree holder is l/4th and that of the judgment-debtors 3/4th. Consent decree be drawn accordingly. The file after completion be consigned to records. Announced : Sd/- 22.1.1999 District Judge, Una. 5. The learned Counsel for the judgment-debtors had admitted in his statement that area of Khasra No. 2167 is 2 kanals 14 marlas in which share of decree holder is l/4th and that of the judgment-debtors 3/4th. It was also stated that the length of the front portion of this piece of land abutting the road is 38 feet in which the share of decree holder is 9-1/2 feet. It was further stated that the land measuring 9-1/2 feet abutting the road towards south, as shown in site plan Ext. PA will be left vacant for the decree-holder and accordingly the decree might be passed in the suit. The statement of the learned Counsel for decree holder was also recorded who also gave his consent for passing the decree in terms of the statement of the learned Counsel for the judgment-debtors. After passing of the consent decree, the application under Order 39 Rules 1 and 2 CPC became infructuous and it was dismissed as such. Thereafter the decree holder filed execution petition complaining that the judgment-debtors had started raising the construction in violation of the decree and prayed that decree be implemented by demolition and removal of the construction already raised and that the possession of the plot of land falling to his share be given to him by issuing warrant of possession and action might be taken against the judgment-debtors. Apprehending breach of peace, an application for police assistance was also moved alongwith the execution petition. The judgment debtors filed reply to the said application and took the stand as under:— ".....After filing the foundations up to 28 feet in khasra No. 2167, the rest of the portion of the other co-sharer plaintiff qua 9-1/2 feet is left out which is shown A B C D E F. Site plan is attached with the main suit, as such the respondent never did any act in violation of judgment and decree dated 22.1.1999." 6. Thereafter with the consent of the learned Counsel for the parties, Shri M.G. Sharda, Advocate, was appointed Local Commissioner for the implementation of the order under execution. The Local Commissioner gave his report on 24.12.1999 on the basis of which the impugned order was passed. Thereafter with the consent of the learned Counsel for the parties, Shri M.G. Sharda, Advocate, was appointed Local Commissioner for the implementation of the order under execution. The Local Commissioner gave his report on 24.12.1999 on the basis of which the impugned order was passed. It is stated in his report by the Local Commissioner that he had visited the spot on 5.12.1999 in the presence of the parties and their Counsel and demarcated the land with the help of Halqua Patwari and the record produced by him, on the basis of which he came to the conclusion that "the entire front, abutting the road, of Khasra No. 1700 which has been carved out of old Khasra No. 2167 has been covered under the construction and the defendants (judgment-debtors) have constructed four pucca linteled shops covering the entire front of the disputed land. Since there is pucca construction, therefore, the order could not be implemented." The copies of Aks Shajra and notice to parties were also submitted alongwith the report. 7. Now, in the present revision petition, the learned Counsel for judgment-debtors has raised three objections to assail the impugned order. These are that the decree under execution was not passed by a competent Lok Adalat or Court, as order dated 22.1.1999 was signed by the District Judge and not by the members of Permanent Lok Adalat, the decree being vague is not executable and in the absence of decree for possession, the order of issuance of warrant of possession is bad. While pressing these grounds hard, the learned Counsel for the judgment-debtors has urged that even if these objections were not taken before the Executing Court, the same are available to the judgment-debtors as these pertain to inherent lack of jurisdiction the order having been signed by the District Judge and not by the members of Permanent Lok Adalat. The learned Counsel has also submitted that there is no record to show that who were the members of Permanent Lok Adalat and what transpired before them. On the other hand, the learned Counsel for the decree holder has submitted that the present revision petition under Section 115 CPC is not maintainable as the impugned order does not suffer from any jurisdictional error or jurisdictional illegality or material irregularity. On the other hand, the learned Counsel for the decree holder has submitted that the present revision petition under Section 115 CPC is not maintainable as the impugned order does not suffer from any jurisdictional error or jurisdictional illegality or material irregularity. According to the learned Counsel, there was no inherent lack of jurisdiction with the Permanent Lok Adalat in passing the decree under execution. Above all, the judgment debtors did not object to the decree as well as the execution till the impugned order was passed and their stand as taken in reply to the application for police assistance has been that they have duly complied with the decree and area of suit land falling to the share of decree-holder is left out and they have made construction over 3/4th portion of land falling to their share. Even the Local Commissioner was appointed with the consent of the judgment-debtors who had demarcated the land in the presence of the parties and come to the conclusion that they have made pucca construction over the entire front of the disputed land, therefore, the objections raised by the judgment debtors are not maintainable and these are only a device to delay the execution of the decree. 8. After giving its best consideration to the respective arguments of learned Counsel for parties, this Court is of the view that the present revision petition deserves to be dismissed for the reasons that the decree under execution does not suffer from inherent lack of jurisdiction and there is no jurisdictional error or jurisdictional illegality and material irregularity in the impugned order passed by the Executing Court. From the record it is clear that the civil suit was referred to the Permanent Lok Adalat in the presence of the learned Counsel for parties which shows their implied consent. The order dated 22.1.1999 passing the consent decree has rightly been signed by the then District Judge, who was admittedly the Chairman of Permanent Lok Adalat There is no record kept by the District Legal Services Authority, Una to know that who were the members who held deliberations in the present case, but it is of no effect as it is clear that the learned Counsel for the parties gave statements before Permanent Lok Adalat on the basis of which the said order was passed. As provided under Section 21 of the Legal Services Authorities Act, 1987 the award of Lok Adalat is deemed to be a decree of Civil Court which is final and binding on the parties and no appeal lies against it in any Court. Above all, the conduct of the judgment-debtors in accepting the order dated 22.1.1999 and not objecting to it till the impugned order was passed against them estoppes them from challenging the impugned order by filing the present petition. Even in the execution petition they did not file objections, rather took the stand that they have not violated the decree and have left the portion of suit land falling to the share of decree-holder vacant. They were also party to the order appointing the Local Commissioner and were present before him at the time of demarcation in which it was found that they have covered whole of the suit land in violation of the decree. Therefore, in the back-drop in which the impugned order was passed, the judgment debtors are not entitled to assail the impugned order. The learned Counsel appearing for them is not right in urging that the decree is not executable and the warrant of possession cannot be issued for restoring the possession of part of land falling to the share of decree-holder in the absence of decree for possession, since the consent decree was passed on the basis of undertaking given by the judgment-debtors that they will not raise any construction over part of suit land falling to the share of decree-holder. Now when it is found that the judgment debtors have already raised pucca construction over part of the suit land falling to the share of decree holder, the handing over of the possession thereof after removing the pucca construction standing thereon is the natural consequence of execution of the impugned decree. 9. The judgment in (1996) 4 Supreme Court Cases 178, Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by LRs and another, holding that invalidity of decree found to be nullity and non-est can be set up even at the stage of execution or in a collateral proceeding, has no application in the present case, as no such invalidity has been found in the decree under execution. Similarly, ratio of judgment in AIR 1956 Supreme Court 746, The Lloyds Bank Ltd. v. The Lloyds Bank Indian Staff Association (Calcutta Branches) and others, holding that the award passed by the Industrial Tribunal was held invalid and inoperative for the reason that it was not signed by all members as per mandatory requirement of Section 16 of Industrial Disputes Act, is not applicable in the present case as there is no legal requirement that the award of Permanent Lok Adalat will be signed by all its members. 10. Under sub-section (5) of Section 19 of the Legal Services Authorities Act, hereinafter called the Act, the Lok Adalat has the jurisdiction to determine and to arrive at a compromise of settlement between the parties to dispute in respect of any case pending before any court for which the Lok Adalat is organised. Further, under Section 20 of the Act, the Court may refer the case to the Lok Adalat if the parties agree or on the application filed by one of the parties, the Court is prima-facie satisfied that there are chances for settlement or it is an appropriate case to be taken cognizance of by the Lok Adalat. Under proviso to sub-section (1) of Section 20 before making a reference, the Court is required to give reasonable opportunity of being heard to the parties. The perusal of sub-sections (3) to (5) of Section 20 leaves no doubt that the Lok Adalat determines or disposes of a reference by bringing about a compromise or settlement between the parties on the basis of which the award of Lok Adalat is made. For bringing about a compromise or settlement, the Lok Adalat is guided by the principles of justice, equity, fair play and other legal principles. All these provisions have been duly complied with in the present case. The case was referred to Lok Adalat to which the learned Counsel for the parties did not object which shows their implied consent to it. From their statements it is also proved that settlement was arrived at between them by the Lok Adalat in terms of which the decree was passed which was rightly signed by the Chairman of the District Legal Services Authority, the then District and Sessions Judge, Una. From their statements it is also proved that settlement was arrived at between them by the Lok Adalat in terms of which the decree was passed which was rightly signed by the Chairman of the District Legal Services Authority, the then District and Sessions Judge, Una. In fact, as provided under sub-section (2)(b) of Section 10 to organise Lok Adalat within the District is one of the functions of the District Authority and the Chairman of the District Authority is supposed to be over-all Incharge of the Lok Adalat held in the District. Above all, sub-section (8) of Section 9 is the complete answer to the objections raised by the learned Counsel for the petitioners, which provides that all orders and decisions of the District Authority shall be authenticated by the Secretary or any other Officer of the District Authority duly authorised by the Chairman of that Authority. In the present case, it is the Chairman who has authenticated the award of Lok Adalat passed on the basis of statements of the learned Counsel for parties. 11. The result of above discussion is that there is no merit in this revision petition and it is rejected. No order as to costs. The parties are directed to appear before the Executing Court on 27.8.2001, who may proceed with the execution in accordance with law. Records be sent back immediately. Dasti. Revision petition dismissed.