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2004 DIGILAW 1359 (PNJ)

Karnail Singh v. Balwinder Kaur

2004-12-16

M.M.KUMAR

body2004
Judgment 1. This petition filed under Article 227 of the Constitution read with Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code ) prays for setting aside order dated 21-10-2004 (Annexure P-12) passed by the Additional Civil Judge (Sr. Division), Zira dismissing an objection petition filed by the judgment-debtors-petitioners in Execution Proceedings Case No. 103/8/24-10-2001/ 14-12-2002. 2. Facts in brief are that one Hanse Singh judgment-debtor-respondent 2 (for brevity, JD-respondent 2 ) purchased land measuring 49 Kanals 7 Marlas fully described in paragraph 1 of the petition on 25-11-1966. A sale certificate was issued in his favour by Tehsildar-Mahal-cum-Sales, Zira on 18-11-1985 (Annexure P-1). On 2-11-1973 Hansa Singh JD-respondent 2 agreed to sell the aforementioned land including some other land to Balwinder Kaur decree-holder-respondent 1 (for brevity, DH-respondent 1 ) for a consideration of Rs. 20,000.00 and executed an agreement to sell. A sum of Rs. 9,000.00 was paid as earnest money. The sale deed was to be executed on or before 12-12-1973. 3. Balwinder Kaur DH-respondent 1 filed a suit bearing No. 46/1/1974 on 2-2-1974 for specific performance of agreement to sell against JD-respondent 2 and others which was decreed in her favour by the trial Court on 15-12-1976 (Annexure P-2). The aforementioned decree was set aside by the learned District Judge, Ferozepur by dismissing her suit on 3-5-1979 (Annexure P-3). However, in a Regular Second Appeal No. 2191 of 1979, this Court allowed the appeal on 27-5-1997 by setting aside the judgment and decree of the learned District Judge passed on 3-5-1979. JD-respondent 2 was directed to execute the sale deed in respect of 49 Kanals 7 Marlas of land on payment of remaining amount and on his failing to do so, DH-respondent 1 was at liberty to get the sale deed executed through the Court. A copy of the judgment dated 27-5-1997 passed by this Court has been placed on record as Annexure P-4. The judgment-debtors-petitioners (for brevity, JD-petitioners) including Maluk Singh and others who are sons of Angrez Singh filed an application before the Tehsildar Sales that Hansa Singh JD-respondent 2 was debarred from entering into any agreement of sale in respect of the suit land before the expiry of 20 years from the date of purchase under the Punjab Package Deal Properties (Disposal) Act, 1976 (for brevity, the Act ) and the Punjab Package Deal Properties (Disposal) Rules, 1976. The sale could also not to be made to a non-Harijan. On 1-6-2000, the Tehsildar after due enquiry has cancelled the allotment/sale, in favour of JD-respondent 1 and the amount of sale deposited by him has been forfeited. The area is said to have been vested in favour of the Government (Annexure P-5). The appeal has been dismissed by the Sales Commissioner, Zira on 27-3-2002 (Annexure P-6) and a further revision petition filed before the Chief Sales Commissioner, Ferozepur has also been dismissed on 6-10-2003. 4. Balwinder Kaur DH-respondent 1 filed execution petition against JD-petitioners and JD-respondent 2 before the Additional Civil Judge, Zira for execution of decree dated 15-12-1976 passed in her favour and also prayed for delivery of possession. The JD-petitioners raised the objection based on the Act and the Rules urging that no sale of the land for a period of 20 years from the date of sale could have been effected nor the sale could have been made in favour of a non-Harijan. However, the executing Court dismissed the objections on the ground that order dated 1-6-2000 could not be passed by the authorities under the Act after the judgment and decree has been passed by the High Court in R.S.A. No. 2191 of 1979 decided on 25-7-1997. The aforementioned judgment passed by the High Court since has attained finality and, therefore, the same was binding on JD-respondent 2 as well as JD-petitioners. It is pertinent to mention that JD-petitioner Karnail Singh executed a sale deed on 26-11-1973 in favour of third parties despite the fact that the power of attorney in his favour executed by DH-respondent 1 was cancelled on 2-11-1973. The aforesaid sale deed was also set aside because of that reason. It is further pertinent to mention that Karnail Singh JD-petitioner was one of those persons who had acted on cancelled power of attorney. The objections filed by the JD-petitioners with regard to illegal allotment in the name of DH-respondent 1 have been dismissed by the executing Court by observing as under :- "9. So far as objection of the objector that Hansa Singh has sold land to Balwinder Kaur, who is non-Harijan, Hansa Singh has sold land in violation of Rules of Govt. which provides that Hansa Singh cannot sell the suit land to non-Harijan before the expiry of period of twenty years from the date of allotment. So far as objection of the objector that Hansa Singh has sold land to Balwinder Kaur, who is non-Harijan, Hansa Singh has sold land in violation of Rules of Govt. which provides that Hansa Singh cannot sell the suit land to non-Harijan before the expiry of period of twenty years from the date of allotment. It has also been alleged that Tehsildar Sales Zira has cancelled allotment in the name of Hansa Singh vide his order dated 1-6-2000 and Hansa Singh is not owner of the same and he has no right to sell the disputed land to any body. I am of the view that these objections of the objector also carries no weight because initially the condition for not selling the suit land by Hansa Singh to any non-Harijan was within ten years and not twenty years as claimed by objector. Objectors have failed to bring any Rules on the file to show that Hansa Singh was not competent to sell the suit land to Balwinder Kaur before 20 years from the date of allotment. In absence of documentary evidence this version of objectors that Hansa Singh was not competent to sell the suit land to Balwinder Kaur before 20 years from the date of allotment is without any merit and same cannot be accepted. So far as contention of objector that allotment in the name of Hansa Singh JD No. 1 has been cancelled by Sales Commissioner, Zira vide order dated 1-6-2000 is also without any merit because Balwinder Kaur decree holder has filed suit which has led to the filing of present execution application on the basis of agreement to sell dated 2-11-1973 and suit was decided on 15-12-1976. JDs/Defendants filed appeal against the judgment and decree and same was accepted by ld. District Judge, Ferozepur on 3-5-1976. Then decree holder filed appeal in the Hon ble High Court and same was accepted and judgment and decree of lower appellate Court was dismissed vide judgment dated 27-5-1997. This shows that decree-holder has become owner of the suit property on the basis of abovesaid order passed by Hon ble High Court on the basis of agreement to sell dated 2-11-1973. No appeal has been filed by JDs before the Hon ble Supreme Court of India against the judgment dated 27-5-1997 passed by Hon ble High Court. This shows that decree-holder has become owner of the suit property on the basis of abovesaid order passed by Hon ble High Court on the basis of agreement to sell dated 2-11-1973. No appeal has been filed by JDs before the Hon ble Supreme Court of India against the judgment dated 27-5-1997 passed by Hon ble High Court. Sale deed has already been executed by JD on the basis of this judgment. In view of this Sale Commissioner has no right to pass any order of the cancellation of land in the name of Hansa Singh because order of Hon ble High Court has become final on 27-5-1997, whereas Sales Commissioner has passed order on 1-6-2000. Sale Commissioner, Zira is not above the Hon ble High Court. It seems that Hansa Singh etc. have got allotment cancelled by misleading Tehsildar Sales Zira. I am of the view that objectors namely Hansa Singh, Karnail Singh, Arjun Singh, Darshan Singh and Buta Singh are liable to be prosecuted for the contempt of order of Hon ble High Court dated 27-5-1997." 5. Mr. R. S. Aulakh, learned counsel for the JD-petitioners has argued that they are continuing to be in possession of the suit land in pursuance to the judgment and decree dated 26-7-2001 passed by the Civil Judge (Jr. Division), Zira, wherein permanent injunction has been granted to the JD-petitioners who are proved to be in cultivating possession of the suit land. According to the learned counsel, DH-respondent 1 being a party to the aforementioned decree albeit ex parte cannot defeat that decree qua the right of possession of the JD-petitioners. The learned counsel has also argued that in any case under the Act and the Rules, JD-respondent 2 was debarred from transferring the land to a non-Harijan for a period of 20 years. The learned counsel has maintained that on 2-11-1973 when the agreement to sell was entered into, JD-respondent was not even the owner of the land in dispute as the sale certificate (Annexure P-1) was issued only on 18-11-1985. 6. After hearing the learned counsel at a considerable length, I am of the view that this petition is a frivolous piece of litigation. 6. After hearing the learned counsel at a considerable length, I am of the view that this petition is a frivolous piece of litigation. When the matter came up before this Court for consideration in R.S.A. No. 2191 of 1979, this Court specifically recorded a finding that despite power of attorney in favour of Karnail Singh JD-petitioner 1 who was acting as general attorney of JD-respondent 2, he had proceeded to execute the sale deed in favour of Mahal Singh, Maluk Singh, Arjan Singh sons of Angrez Singh who were his own brothers. It is the specific finding that JD-petitioner 1 Karnail Singh had no authority to sell the suit land owned by JD-respondent 2 and the sale deed dated 2-11-1973 was set aside. Eventually, a decree was passed by this Court directing JD-respondent 2 to execute the sale deed in respect of 49 Kanals 7 Marlas of land on payment of remaining amount as per the agreement and the expenses were to be borne by DH-respondent 1. The present JD-petitioners were party to the aforementioned judgment and decree and effort has now been made to raise an argument that JD-respondent 2 could not have sold the land to DH-respondent 1 by relying on the provisions of the Act and the Rules. Such an argument is not available to the JD-petitioners because they themselves are non-Harijans and trying to grab possession of the land in respect of which they have already suffered a judgment and decree up to this Court. Moreover, they themselves are non-Harijans and trying to assert their possession by urging that DH-respondent 1 could not have been transferred the rights before the expiry of 20 years. This is exactly what the JD-petitioners are trying to claim. Therefore, I find that no such argument could be raised by the objector-petitioners because it is well established that whosoever comes to equity, must do equity. 7. The other argument that the sale certificate was issued on 18-11-1985 (Annexure P-1) would also not require any detailed consideration because under Section 60 of the Code, the title would not transfer on the issue of sale certificate. The aforementioned aspect has been considered by the Supreme Court in the case of Bishan Paul V/s. Mothu Ram, AIR 1965 SC 1994. The aforementioned aspect has been considered by the Supreme Court in the case of Bishan Paul V/s. Mothu Ram, AIR 1965 SC 1994. The observations of their Lordships in this regard read as under (para 16) :- "It seems to us that the matter must be considered on general principles. In this case the highest bid was of the respondent and he paid the full price before the sale in his favour was confirmed. The sale certificate, though issued later, mentioned the date of the confirmation of the sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new Form of the certificate reproduced in Jaimal s case, 66 Pun LR 99 : (AIR 1964 Punj 99). No doubt till the price is paid in full there is no claim to the property, but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute." (Emphasis added) In view of the above, there is no substance in the argument raised by the learned counsel. 8 Another argument raised by learned counsel for the JD-petitioners that there is a judgment and decree dated 26-7-2001 (Annexures P-8 and P-9) in their favour granting permanent injunction in their favour. Firstly, no such judgment and decree was placed before the executing Court nor any reference has been made of the aforementioned judgment and decree in the impugned order. 8 Another argument raised by learned counsel for the JD-petitioners that there is a judgment and decree dated 26-7-2001 (Annexures P-8 and P-9) in their favour granting permanent injunction in their favour. Firstly, no such judgment and decree was placed before the executing Court nor any reference has been made of the aforementioned judgment and decree in the impugned order. Why the aforementioned judgment and decree was concealed from the executing Court has not been answered by the learned counsel despite repeated queries by the Court. It appears that the JD-petitioners wish to deprive the DH-respondent 1 of the fruits of the decree passed by this Court on 27-5-1997 by hook or crook. Once this Court has already found that the JD-petitioners have fraudulently acted on a power of attorney which was cancelled, there was no question of any judgment and decree to be passed in favour of the JD-petitioners. 9. In view of the above, I do not find that the JD-petitioners have suffered any manifest injustice warranting interference of this Court under Article 227 of the Constitution. On the contrary, DH-respondent 1 has been suffering on account of bouts of litigation initiated by the JD-petitioners either before the civil Court or before the revenue authorities. It is well settled that this Court can interfere only if there is manifest injustice caused to the party invoking such jurisdiction. In this regard, reference may be made to judgments of the Supreme Court in the cases of Ouseph Mathai V/s. M. Abdul Khadir, (2002) 1 SCC 319 : (AIR 2002 SC 110) and Virendra Kashinath Ravat V/s. Vinayak N. Joshi, (1999) 1 SCC 47 : (AIR 1999 SC 162). 10. For the reasons aforementioned, this petition fails and the same is dismissed. As the objections filed by the JD-petitioners are frivolous in nature and no cost has been imposed by the executing Court, I am inclined to award compensatory cost as is envisaged by Section 35-A(4) of the Code. The cost is quantified at Rs. 10,000.00 which shall be deposited with the executing Court within 30 days from today. The cost shall be paid to DH-respondent 1. If the JD-petitioners fail to pay the cost, then it shall be recoverable as arrears of land revenue.