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2008 DIGILAW 1335 (PNJ)

Ajit Singh v. Yashpal

2008-08-07

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 26.2.2007 passed by the learned Additional Civil Judge (Jr. Division), Pehowa vide which objections filed by the petitioner to the execution of the decree stand dismissed. 2. Lal Chand, the predecessor-in-interest of the respondent obtained a decree for possession of the property shown in red colour in the site plan attached with the execution petition along with superstructure standing thereon. The said suit was decreed and the order passed has attained finality. Lal Chand decree holder on earlier occasion filed an execution application. However, since he expired the said petition was dismissed in default. 3. Yash Pal along with other legal representatives filed present execution application to execute the decree passed by the court in favour of Lal Chand deceased. The petitioner Judgment Debtor filed objections to the execution petition taking objection that the petitioner has become co-sharer in the suit land on account of civil court decree passed in Civil Suit No. 418 of 1992 dated 6.6.1992 and thus, claimed that he was entitled to remain in possession. 4. The objection petition was contested on the plea that the decree under execution was based on forceful dispossession by the Judgment Debtor and the question of title was not relevant at all. The executing court noticed that the question of title was also decided in the judgment passed in favour of Decree Holder wherein it was held that the Decree Holder was entitled to possession of the suit land. 5. The appeal against the judgment and decree filed by the Judgment Debtor was dismissed by the first court of appeal. Regular Second Appeal also met with the same fate in this court. 6. During the pendency of the execution application Judgment Debtor filed an application on 9.3.2006 praying for dismissal of the execution application on the ground that there was no Power of Attorney in favour of Shri R.C. Dua, Advocate on the file after the death of Lal Chand. It was also pleaded that there was no application for substitution of legal representatives. It was also pleaded that there was no application for substitution of legal representatives. It was the case of the Judgment Debtor that during the pendency of the execution petition he improved his status by purchasing share of Shingara Singh and also that the application moved by Lal Chand deceased was dismissed in default and therefore, the second application, for execution was not competent. The plea that the execution application as time barred was also taken. 7. This plea of the Judgment Debtor was contested on the plea that the application moved was not competent as the objections already stood filed. It was also claimed that the present execution application has been filed by the legal representatives of deceased Lal Chand and the question of abatement did not arise nor there was any necessity of substitution. 8. Learned executing court came to the conclusion that the execution application was not barred by limitation as the same was filed within 12 years of the passing of the decree. Learned executing Court also considered the question as to what was the effect of improvement of status by the Judgment Debtor during the execution proceedings. 9. It is the case of the objector petitioner that the evidence of Judgment Debtor with regard to the purchase of the property from co-sharer as also the factum that the decree holder had sold his share went unrebutted and therefore, objection petition was liable to be accepted. 10. The petitioner also claimed that Judgment Debtor improved his status from unauthorised occupant to co-sharer. Learned Executing Court by placing reliance on the judgment of Honble Allahabad High Court in the case of Asgar Ali v. Govind Lal, AIR 1964 Allahabad 195 came to the conclusion that where a co-sharer has been in enjoyment of right of exclusive possession of joint property and is dispossessed by another co-sharer he is entitled to get back the possession. 11. Reliance was also placed on the judgment of this court in the case of Shrimati Amar Kaur v. Hardev Singh and others, 1991(2) PLR 551, wherein this court has been pleased to lay down as under :- "That the plaintiff brought the suit on prior possession and dispossession by the defendants (respondents). The suit having been brought within 12 years from the date of dispossession is thus, within time. The suit having been brought within 12 years from the date of dispossession is thus, within time. The mere fact that the defendants (respondents) claimed to be co-sharers will not make any difference because a co-sharer is entitled to remain in exclusive possession of separate and joint land under the arrangement consented to by other co-sharers and in that contingency it is not open to any such co-sharer to disturb the arrangement without the consent of the others except by filing a suit for partition. The objection that the plaintiff has not alleged or proved such prior arrangement is also without any substance. Plaintiff has proved prior arrangement in the form of decree vide which she was permitted to remain in exclusive possession. The respondent, in such a situation, could not forcibly dispossess the plaintiff by wrongful means." Learned Executing Court also came to the conclusion that there was no evidence brought on record to show that the co-sharer from whom the Judgment Debtor is said to have purchased the property had any share in the property. 12. Learned Executing Court by placing reliance on the judgment of this court in the case of Pal Singh & Ors. v. Uma Mehta & Ors., 1997(1) PLR 80 came to conclusion that it was for the objector to prove that their vendor had valid title with regard to the area purchased by him. However, there was no such evidence brought on record. Learned Executing Court, thus, came to the conclusion that the plaintiff who is in possession as co-sharer and is dispossessed by a person or a co-sharer otherwise than in due course of law then such person/co-sharer is bound to restore possession to the person whom he dispossessed and thereafter can seek possession only after getting the property partitioned. The plea that second execution was not competent was also rejected. On 15.3.2007 this court passed the following order :- "Learned counsel for the petitioner contends that now the execution has been filed by the LRs of decree holder who had already sold his rights/share of the property in dispute after passing of the decree in his favour and, as such, the Lrs of the decree holder have no right to file the execution. The factum of selling the property by the original decree holder has not been discussed by the Executing Court in the impugned order. Notice of motion for 19.3.2007. The factum of selling the property by the original decree holder has not been discussed by the Executing Court in the impugned order. Notice of motion for 19.3.2007. Dasti summons" 13. Learned counsel for the petitioner admitted that this statement was not correct and the point raised for seeking notice of motion did not arise in the present case, so prima facie it is proved on record that the petitioner got an order from this court on the basis of misstatement. 14. Mr S.K. Garg Narwana, learned counsel for the petitioner vehemently contended that in the present case decree holder had sought possession of the property being a co-sharer and in support of this contention referred to the finding recorded by the learned Additional District Judge in the judgment vide which the decree passed by the leached trial court was upheld. The contention of the learned counsel for the petitioner, therefore, was that it is the case of the decree holder himself that he is one of the proprietors having share in the property and thus, his claim was merely that of a co-sharer and once the petitioner also attained the same status he could not be dispossessed in execution of decree passed against him as trespasser. 15. Learned counsel appearing on behalf of the petitioner contended that the learned Executing Court has rejected the plea of the petitioner regarding purchase of land merely on the presumption that the vendor of the petitioner might have sold his share. The contention of the learned counsel for the petitioner was that the evidence led by the petitioner went unrebutted, thus was no occasion for the learned Executing Court to have rejected his plea of being co-owner to protect his possession. Though this contention does not arise in view of the findings recorded by the learned Executing Court holding therein that co-owner who is dispossessed is entitled to get back the possession if he is not dispossessed in accordance with law. The Executing Court has also noticed the fact that in the suit filed by the decree holder he was seeking possession on the ground that he has been illegally dispossessed from the property in dispute. The said decree has attained finality up to the High Court. Thus, the claim of the petitioner that he has improved his status is of no consequence. 16. The said decree has attained finality up to the High Court. Thus, the claim of the petitioner that he has improved his status is of no consequence. 16. It may, however, be noticed that the sale deed relied upon by it petitioner is for a consideration of Rs. 90/- with respect to share of Gurbachaan Singh without disclosing as to what share has been sold. The object of executing the sale deed for Rs. 90/- is obviously for the reason to make out the case of sale without the document being registered. The sale deed itself seems to be a document prepared in order to raise the plea, as it does not give particulars of land or area sold. 17. The plea of the petitioner that in pursuance to the sale deed he has further obtained a decree of the civil court shows obviously that the petitioner has been making attempts to deny the fruits of the decree to the respondent on one pretext or the other, it is to be noticed here that respondent decree holder was not made party to the civil suit. 18. Learned counsel for the petitioner placed reliance on the judgment of Honble Supreme Court in the case of Imambi v. Azeeza Bee, JT 2000(9) SC 562 to contend that if the status of Judgment Debtor is improved the decree becomes inexecutable. Honble Supreme Court in the case of Imambi v. Azeeza Bee (supra) was pleased to lay down as under :- "5. Thus, only question which arises for our consideration is, whether status of a tenant would continue to be so even after an agreement of sale is executed by such tenant with the landlord in respect of the same tenanted premises. Having heard learned Counsel for the parties, we find the matter is covered by the decision of this Court. The status of such tenant, after execution of the said agreement of sale ceases to be such which is changed to that of a purchaser and when a sale deed is executed, as in this case of the half share of the said property, such tenant becomes co-owner with the landlord. This court held to the similar effect in Abdul Alin v. Sheikh Jamal-Uddin Ansari and Ors., 1999(1) SCALE 175. 6. This court held to the similar effect in Abdul Alin v. Sheikh Jamal-Uddin Ansari and Ors., 1999(1) SCALE 175. 6. In view of this we hold the High Court committed error in law in recording to the contrary and dismissed the Revision Petition of the appellant. 7. We accordingly set aside the order of the High Court dated 27.1.1999 and allow the initial application of the appellant under Section 47 CPC. We are also informed, that a preliminary decree has already been passed in respect of the half share in the partition suit filed by the appellant. Accordingly this appeal is allowed. Costs on the parties." It may be noticed that the judgment has no application to the facts of the present case as the petitioner Decree Holder had sought possession from Judgment Debtor on the plea that he was wrongfully dispossessed and thus, even if for the sake of argument it is taken that the status of the petitioner is that of co-sharer still he was bound to hand back the possession and thereafter seek remedy in accordance with law on the basis of the said sale deed. 19. Learned counsel for the petitioner also placed reliance on the judgment of Honble Supreme Court in the case of Jagdish Dutt and another. v. Dharam Pal and others, AIR 1999 SC 1694. In the said judgment Honble Supreme Court has been pleased to lay down as under : "7. When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject-matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the share of the decree holders are defined or those shares can be predicated or the share is not in dispute. Otherwise the executing Court cannot find out the shares of the decree holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC. Order 21, Rule 15, CPC enables a joint decree holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto. Various decisions cited by either side to which we have referred to do not detract us from the principle stated by us as aforesaid. Therefore, a detailed reference to them is not required." It would be seen that the judgment of Honble Supreme Court in the case of Jagdish Dutt and another v. Dharam Pal and others (supra) has also no application to the facts of the present case. 20. Learned counsel for the petitioner in support of his contention that his statement qua his having become co-owner was to be believed as the decree holder did not enter the witness box. Reliance for this purpose was placed on the judgment of Honble Supreme Court in the case of Iswar Bhai C. Patel & Ors. v. Harihar Behera & Ors., 1999(2) ICC 670. Reliance for this purpose was placed on the judgment of Honble Supreme Court in the case of Iswar Bhai C. Patel & Ors. v. Harihar Behera & Ors., 1999(2) ICC 670. In view of observations made above this contention also has no merit. 21. Mr. C.B. Goel, learned counsel appearing on behalf of the respondent, however, contended that the decree holder has been denied the possession of the decree by the petitioner by filing one after another frivolous petitions. 22. Learned counsel for the respondent contended that prior to filing of this objection petition the petitioner had filed a suit for injunction which was dismissed. The appeal filed against the said judgment and decree of the civil court was dismissed as also the regular second appeal. Learned counsel for the respondent contended that the plea of the petitioner is based on fake documents which are apparent on the face of record. 23. It would be seen in the present case that the decree in favour of the Decree Holder is for possession on the plea that he has been wrongly dispossessed by the Judgment Debtor and therefore, was entitled to possession. Merely because the court observed that he was one of the co-sharers did not change the position in any way. The question in the present case, therefore, was rightly decided by the executing Court holding therein that the petitioner was entitled to get possession of the property in pursuance to the decree passed in his favour. 24. Learned court also rightly came to the conclusion that the petitioner had failed to prove the title of the vendor from whom he is said to have purchased the property. 25. As already observed above the sale deed relied upon by the petitioner itself seems to be a suspicious document as the land measuring about 8 marlas though not mentioned in the sale deed is claimed to have been purchased for a sum of Rs. 90/- only. There being no challenge by alleged vendor the petitioner chose to file a civil suit and therefore, got the decree registered. Though attempts were made to use the decree in execution, the petitioner (i.e. Predecessor-in-interest) was not impleaded as party. 26. 90/- only. There being no challenge by alleged vendor the petitioner chose to file a civil suit and therefore, got the decree registered. Though attempts were made to use the decree in execution, the petitioner (i.e. Predecessor-in-interest) was not impleaded as party. 26. Be that as it may, in view of the settled law that co-owner is entitled to seek back the possession if wrongly dispossessed the objections raised by the petitioner were totally frivolous and have been rightly rejected. No ground is made out which may call for interference by This court. No merit. Dismissed. Petition dismissed.