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2004 DIGILAW 963 (PNJ)

Lakhwinder Kaur v. Jarnail Singh

2004-08-26

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. This order shall dispose of C.R. Nos. 6111, 6112 and 6113 of 2002 as all the three revision petitions arise out of same facts i.e. out of execution of judgment and decree in a suit for possession by redemption of land measuring 46 kanals. The objections filed by the petitioners under Order 21 Rule 97 of the Code of Civil Procedure (hereinafter referred to as the Code) were accepted by the learned Executing Court. However, in appeal the same have been dismissed. Still aggrieved, the objectors are in revision petition. 2. One Gurbachan Singh since deceased (hereinafter referred to as the decree holder) effected an usufructory mortgage of land measuring 54 kanals 2 marlas in favour of Mohinder Singh and Dalwinder Singh for a sum of Rs. 20,000/-. The decree holders has sold 8 kanals 6 marlas of land to different vendees who have paid proportionate amount of mortgage i.e. Rs. 5000/- to mortgagees and Rs. 15,000/- remained as a mortgage amount payable to the mortgagees for redeeming the remaining 46 kanals of land. The decree holders filed a suit for possession by way of redemption on 18.9.1980 which was partly decreed on 25.3.1983 vide Ex.DH/5. The appeal filed by decree holders was allowed on 23.7.1986 vide Ex.DH/9 and decree for possession by way of redemption of entire 46 kanals of land was granted. 3. The decree holders filed a separate suit challenging the exchange deed dated 30.1.1980 allegedly executed between Ajaib Singh and the decree holders in respect of 12 kanals of land out of the suit land with the land of Ajaib Singh situated in village Kalsian Kalan Tehsil Patti District Amritsar. The suit was filed when decree holders came to know about the mutation entered on 20.8.1981. The decree holders contested the mutation and after contest mutation was rejected on 9.12.1982. In a suit for declaration to challenge the exchange land comprised in khasra Nos. 2237 and 2264, the trial Court dismissed such suit on 22.8.1984 but the appeal filed by decree holders was accepted on 25.11.1986 (Ex.DH/7). The exchange deed dated 30.1.1980 was found to be a fabricated and forged document. R.S.A. No. 701 of 1987 was dismissed by this Court on 14.1.1988. 4. The decree holder sought possession in execution or a decree in a suit for possession by redemption after deposit or mortgage money. The exchange deed dated 30.1.1980 was found to be a fabricated and forged document. R.S.A. No. 701 of 1987 was dismissed by this Court on 14.1.1988. 4. The decree holder sought possession in execution or a decree in a suit for possession by redemption after deposit or mortgage money. The Executing Court issued warrant of possession. The revenue officials went to the spot on 3.9.1987 and delivered possession of land measuring 16 kanals 4 marlas from Mohinder Sigh and Dalwinder Singh but reported that shops and residential hoses were built in khasra No. 2237 and only one house was built in khasra No. 2237/1. 5. The judgment debtor surrendered possession of land bearing khasra No. 2237 measuring 4 kanals 7 marlas in the year 1995 where it was reported that the following constructions were existing in khasra No. 2237/1 (4 kanals 4 marlas); (i) Lakhwinder Kaur wife of Pritam Singh is in possession of 1 kanal over which houses have been built. (ii) Manjit Kaur wife of Darshan Singh is in possession of 12 marlas of land, over which a house has been built. (iii) Harbans Lal, now deceased and represented by his LRs Devinder Nath and Surinder Kumar was in possession of 1 kanal of land, who had built four wall. (iv) Krishan Kumar son of Tek Chand is in possession or 10 marlas of land and has built a house therein. (v) Tarlok Nath son of Charanjit Lal is in possession of 0 Kanal 10 marlas of land has built a house therein. 6. The present revision petitions are in respect of constructions raised at Sr. Nos.(i) (ii) and (iii), 7. Lakhwinder Kaur is stated to have purchased 1 kanal of land on 23.12.1980 from Ajaib Singh whereas Manjit Kaur is reported to have purchased 10 marlas of land vide registered sale deed dated 10.9.1984 and Harbans Lal the predecessor-in-interest of Devinder Nath and Surinder Kumar has purchased 1 kanals of land vide registered sale deed dated 10.9.1984. All the sale deeds are out of land comprising in khasra No. 2237/1. 8. Before this court, the learned counsel for the petitioners has argued that Ajaib Singh has moved an application in the suit for possession by way of redemption of the land under order 1 Rule 10 CPC on 11.9.1981 and the said application was dismissed. All the sale deeds are out of land comprising in khasra No. 2237/1. 8. Before this court, the learned counsel for the petitioners has argued that Ajaib Singh has moved an application in the suit for possession by way of redemption of the land under order 1 Rule 10 CPC on 11.9.1981 and the said application was dismissed. It is thus contended that neither the petitioners nor their predecessor-in-interest Ajaib Singh was party to the suit for possession by way of redemption of the land and thus, the decree passed in such suit cannot be executed against the petitioners. The decree which is sought to be executed is a decree for possession and not the decree in a suit for declaration wherein the challenge was to exchange dated 30.1.1980. Since the petitioners or their predecessor-in-interest were not party in a suit for possession, therefore, the first Appellate Court has gravely erred in law in dismissing the objections. 9. It is further contended that the objections have been dismissed by the first Appellate Court primarily for the reason that the sale in favour of the petitioners or their predecessor-in-interest is during the pendency of the suit for possession and therefore, suffers from principles of lis pendens. It is contended that since Ajaib Singh is not a party to the suit for possession by way of redemption therefore, doctrine of lis pendens cannot be extended to the alienations made by Ajaib Singh. 10. Learned counsel for the petitioners has also relied upon Noorduddin v. Dr. K.L. Anand, J.T. 1994(7) S.C. 652 and Bruhmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr., A.I.R. 1997 S.C. 856 to contend that the objections filed by the petitioners are maintainable as the petitioners are not party to the decree. Still further reliance has been placed on a judgment of this Court reported in M/s New Bharat Chemical Industry v. Om Parkash and Ors., (1997-3)117 P.L.R. 357 to apply the principle of estoppel against the decree holders. 11. It may be noticed that learned Executing Court has found that the objectors are not bona fide purchasers of the land in dispute, however, allowed the objections only on one ground that the decree holder have been seeing and consenting at the time when construction was being raised by the objectors and therefore, they are estopped to execute the decree. It may be noticed that learned Executing Court has found that the objectors are not bona fide purchasers of the land in dispute, however, allowed the objections only on one ground that the decree holder have been seeing and consenting at the time when construction was being raised by the objectors and therefore, they are estopped to execute the decree. The first Appellate Court dealt with the appeals filed by the decree holder as well as cross appeals filed by the objectors regarding finding on issues No. 1 and 3 whereby the issue to the effect that their objectors are not bona fide purchasers of the land was decided against the objector. Before the first Appellate Court the petitioners have raised a plea that they have perfected their title by way of adverse possession. The court found that mere long possession is not sufficient to establish the plea of adverse possession. While upholding the finding on issue No. 1 and 3, the first Appellate Court reversed the finding on issue No. 4 to the effect that the decree holders are estopped to execute the decree. The primary question which is required to be considered is the effect that declarator} decree between Gurbachan Singh and Ajaib Singh where the exchange deed relied upon by Ajaib Singh dated 13.1.1980 was found to be forged and fabricated document is relevant and can be taken into consideration in a suit for possession by way of redemption of mortgage. According to the petitioners such decree cannot be taken into consideration while executing the decree for possession whereas as per the decree holders, once the exchange is found to be forged and fabricated, the petitioners have no right to object to the execution of the decree for possession as the rights inter se having been decided in a civil suit, it is not open to the petitioners to rely upon the transactions of sales executed by Ajaib Singh on the basis of forged and fabricated exchange deed. The rights of the parties having been adjudicated in a suit for declaration that Ajaib Singh had no interest in any part of the suit property, the decree for possession is to be executed. 12. The declaratory decree has conclusively determined rights between Gurbachan Singh and Ajaib Singh. The petitioners being the successors-in-interest of Ajaib Singh would step into the shoes of Ajaib Singh. 12. The declaratory decree has conclusively determined rights between Gurbachan Singh and Ajaib Singh. The petitioners being the successors-in-interest of Ajaib Singh would step into the shoes of Ajaib Singh. Once by the decree of civil court, the exchange relied upon by Ajaib Singh claiming ownership right over the land in dispute, having been negated, the predecessor-in-interest of the petitioners had no saleable interest in the land in dispute which he could convey to the petitioners by way of registered sale deeds. Since Ajaib Singh had no saleable interest in the suit land in dispute and having returned such finding in a suit filed by Gurcharan Singh, it is not open to the petitioners to contend that the decree for possession by way of redemption cannot be executed against them as they are not party to the said suit. On account of declaratory decree having declared rights in a suit for declaration the decree holders was justified in seeking execution of such decree for possession. 13. The first Appellate Court has held that the suit for possession having been filed on 18.9.1980 whereas the sales in favour of petitioners have been effected after the filing of such suit suffers from doctrine of lis pendens. I am unable to agree with the arguments raised by the learned counsel for the petitioners that since Ajaib Singh is not party in a suit for possession, therefore, the doctrine of lis pendens cannot be extended to the sales effected by Ajaib Singh. It is true that Ajaib Singh is not party in the suit for possession and application to become in the said party stood dismissed but the fact remain that he sought title in 12 kanals of land from Gurbachan Singh decree holders. Such right of ownership under decree holders was negatived by the Civil Court in a suit for declaration. Therefore, though the petitioners are not claiming right through the judgment debtor but the right of ownership is being claimed as decree holders when right of decree holder in respect of the land in dispute stood settled. Therefore, any sales effected during the pendency of such suit for possession would be hit by doctrine of lis pendens as well. Therefore, though the petitioners are not claiming right through the judgment debtor but the right of ownership is being claimed as decree holders when right of decree holder in respect of the land in dispute stood settled. Therefore, any sales effected during the pendency of such suit for possession would be hit by doctrine of lis pendens as well. In any case, the exchange in favour of Ajaib Singh lias been found to be forged and fabricated document, therefore, the petitioners who are transferee on the basis of such forged and fabricated document cannot derive a better title than the title of their predecessors. Thus, I am of the opinion that the first Appellate Court was perfectly justified in holding that the decree for possession by way of redemption of the land is executable and the objections filed by the petitioners are frivolous. 14. The other argument that the decree holders is estopped to seek execution of the decree as they have seen the petitioners raising construction on the spot purchased by the petitioners. It has been rightly found that the principles of estoppel is not applicable in the present case. It has been found that the decree holders were asserting their rights before the civil court and therefore, would be last persons to encourage the petitioners to raise constructions. It has been found that the petitioners have not raised construction in good faith. As a matter of fact, it was pointed out that in the year 1987 when warrant of possession was sought to be executed only one house was built in khasra No. 2237/1. Said house pertains to Mohinder Kumar and Dalip Kaur who settled their dispute with the decree holders. Thus, it is apparent that the construction has been raised by the petitioners after the year 1987 and before 1995 when it was reported that some construction has been raised after the report dated 3.9.1987 Ex.OW/4/3. 15. The judgment referred to by the learned counsel for the petitioners in (1997-3)117 P.L.R. 357 (supra) is clearly distinguishable. That was a case where the parties were the co-sharers and a share of the joint land was sold where the vendee has raised construction. In the circumstances it has been held that where the co-owners have seen the vendee raising construction it will act as an estoppel. However, the said principles are not even remotely applicable in the present case. In the circumstances it has been held that where the co-owners have seen the vendee raising construction it will act as an estoppel. However, the said principles are not even remotely applicable in the present case. The possession of the petitioners is on the basis of forged and fabricated exchange deed. The entire case of the petitioners is based upon the forged document. Therefore, the petitioners have no right to protect their possession in respect of the land purchased. Even the construction has been raised after the year 1987. Since warrant of possession were not executed on account of obstruction raised, the knowledge of the decree should have put off the petitioners from raising construction but the petitioners raised construction thereon. Therefore, I do not find any equitable consideration in favour of the petitioners as well. 16. Consequently, the order passed by the first Appellate Court does not suffer from any patent illegality or material irregularity warranting interference by this court in the revisional jurisdiction in the present revision petitions. 17. Resultantly, all the three revision petitions are dismissed.