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2008 DIGILAW 1418 (ALL)

RAM NARESH v. CIVIL JUDGE J D PRATAPGARH

2008-07-24

RAJIV SHARMA

body2008
RAJIV SHARMA, J. Heard Sri P. K. Khare, Counsel for the petitioner and Sri D. C. Mukherji, Counsel appearing for the answering respondents. 2. It is submitted that Brij Mohan, father of respondent Nos. 3 to 5 and Jageshwar father of respondent Nos. 7 to 10 preferred a Suit No. 256 of 1999 in the Court of Munsif Sadar, Pratapgarh against the petitioners father and Bachchu Lal for possession and damages with respect to plot No. 612. In the plaint it was averred the Paltu Ram, the predecessor in interest of respondents had purchased the house with trees standing on the land in an auction sale and on 30. 11. 1912, they had obtained the possession. Siyambar, the brother of Paltu Ram took the possession of the house which was ultimately inherited by Smt. Radha Kunwari, the widow of Paltu Ram. It is said that through a gift deed dated 7th August, 1935 the house and the trees standing on it were transferred in favour of father of respondent No. 3-5 and father of respondent No. 7-10. 3. In the plaint, it was further averred that the original house fell down and in its place a kothari was built which was given to the petitioners father to look after. The father of the petitioner had initiated proceeding under sec tion 145, Cr. P. C. and in the said proceeding an order was passed on 30. 1. 1964 by which the possession of land in dispute i. e. , the kothari and the trees standing over the land, was given to the petitioners father. 4. Father of the petitioner, namely. Bhagelu filed a written statement denying the allegations made in the plaint and it was stated that the suit property never belonged to predecessors of respondent No. 3-5 and respondent No. 7-10. Neither the trees were planted nor any house was constructed by the plaintiffs father as alleged in the plaint. On the contrary, it was stated that in the revenue records, the name of the predecessor in interest of the defendants is recorded and Jagoo had constructed a house, which had fallen down, there fore, his daughter Shukana and his husband Hulas constructed another house over it about 40 years ago. Further, the old trees had fallen down and the de fendant had planted new trees in their place, which are in their possession. Further, the old trees had fallen down and the de fendant had planted new trees in their place, which are in their possession. It was specifically stated that the defendants are the successors of Hulas. 5. Learned Counsel for the petitioner has contended that the aforesaid Suit No. 256 of 1969 filed by the respondents plaintiff was decreed by the judg ment and order dated 22. 10. 1973 and a direction was issued to the defendants to handover the possession of disputed land. He also pointed out that the land of which the possession has been ordered to be given by the defendants to the plaintiff is not clear from the judgment of the Trial Court. 6. Aggrieved by the order of the Trial Court, the petitioners father Bhagelu filed an appeal in the Court of District Judge, Pratapgarh, which was allowed by the judgment and order dated 1. 12. 1978 and not only the judgment and decree passed by the Trial Court was set-aside but the suit was also dis missed. 7. The order passed in the first appeal by the District Judge was chal lenged by the father of respondent No. 3-5 and successors of Jageshwar before this Court in Second Appeal No, 264 of 1979. The High Court vide its judgment and order dated 7. 9. 2004 set aside the first appellate order and the petitioner was directed to handover the possession of the house and plot in question to the plaintiff and appellant. 8. Consequent to the aforesaid direction of the High Court, the respondent Nos. 3-10 filed an execution application to which objections were also filed. In the objections, it was clearly pleaded that in the decree, there is no mention of the number and kind of the trees standing on the land, therefore, the said de cree is not executable. 9. Learned Counsel for the petitioner has submitted that it is clearly es tablished by evidence that the petitioner has built a house over the land in question under Indira Vikas Yojna and the petitioner is residing in the said house but the decree is silent in this regard. The decree is also not executable for the reason that plaintiff has not claimed the possession of specific house built by the petitioner under Indira Vikas Yojna. 10. The decree is also not executable for the reason that plaintiff has not claimed the possession of specific house built by the petitioner under Indira Vikas Yojna. 10. Elaborating further, it was argued that if the decree is ambiguous, the Executing Court must go to the pleading and if the ambiguity is not removed, then the decree cannot be executed. He vehemently argued that Executing Court committed an error in not examining the objection raised by the petitioner under section 47 of the Code merely by saying that since the judgment has been passed by the High Court, the controversy has become final and now no objection can be seen. 11. Placing reliance on Jai Narain Ram Lundia v. Kedar Nath Khetan and others, AIR 1956 SC 359 learned Counsel for the petitioner contended that when a decree imposes obligation on both side which are so condition that performance by one is conditional on performance by other, execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the Executing Court that he is in a position to do so. 12. Learned Counsel for the petitioner has also placed reliance upon the judgment of the Apex Court rendered in the case of Topanmal Chhotamal v. M/s. Kundomal Gangaram and others AIR 1960 SC 888 Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another; AIR 1972 SC 1371 Chandi Prasad and others v. Jagdish Prasad and others 2004 (24) AIC 741 (SC)=2005 (58) ALR 129 (SC ). 13. Rebutting the aforesaid submissions of learned Counsel for the peti tioners, Sri D. C. Mukherjee, learned Counsel appearing on behalf of opposite parties, has submitted that the High Court in the second appeals has directed for handing over the possession to the respondents within a period of two months. The Executing Court in the impugned order dated 19. 9. 2005 has ob served that the objector petitioner has failed to establish or produce any evi dence that the trees were planted by him. Further no evidence has been pro duced to show that the objector-petitioner has any interest over Gata No. 612. The Executing Court having found no force in the objections raised by the peti tioner rejected the same and directed for handing over the possession with the aid of police force. Further no evidence has been pro duced to show that the objector-petitioner has any interest over Gata No. 612. The Executing Court having found no force in the objections raised by the peti tioner rejected the same and directed for handing over the possession with the aid of police force. Against this order, petitioner Ram Naresh filed a revision before the Additional District Judge, Pratapgarh and the Revisional Court while rejecting the revision has observed that the revisionist has to hand over the possession of the house and the land in question within a period of two months. 14. Sri D. C. Mukherjee emphatically argued that all the objections what ever have been raised by the petitioner before this Court, have already been considered by the Executing Court as also by the Revisional Court. Therefore, it is incorrect to say that the impugned orders suffer from infirmities. 15. Placing reliance upon the judgment of Apex Court rendered in the case Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehaman and others, 1970 (1) SCC 670 Sri D. C. Mukherjee submitted that the Executing Court as also the Revisional Court have rightly rejected the objections of the petitioner as it is not open for a Executing Court to travel beyond the decree and it must take a decree according to its tenor. He pointed out that in the aforesaid judgment, the Apex Court has held that Executing Courts have no jurisdiction to entertain objections that the decree was incorrect in law or in fact, until it is set-aside in appropriate proceedings either in the appeal or in the revision. Moreover, it is too late for the petitioner to assail the decree in the execution proceedings. 16. Sri D. C. Mukherjee next contended that the Apex Court as also this Court in large number of cases has criticized the dilatory tactics adopted by a litigant in not honouring the judgment of the Court of law. In the instant case, the petitioner has lost the suit as also the second appeal before the High Court. Thereafter, the objections were rejected by the Executing Court and the revision against which was also dismissed but till date the respondents have not been able to get the possession of the petitioner to which they are legally entitled. 17. In the instant case, the petitioner has lost the suit as also the second appeal before the High Court. Thereafter, the objections were rejected by the Executing Court and the revision against which was also dismissed but till date the respondents have not been able to get the possession of the petitioner to which they are legally entitled. 17. In B. Gangadhar v. B. R. Rajalingam, (1995) 5 SCC 238 on which reliance has been placed by the learned Counsel for the respondents, the Honble Supreme Court has observed if any obstruction is raised by putting up a construction pendente lite or prevents the passage or right to access to the property pendente lite, the plaintiff has been given right and the decree holder is empowered to have it removed in execution without tortuous remedy of separate suit seeking manda tory injunction or for possession so as to avoid delay in execution or frustration and thereby defeat the decree. 18. The Trial Court has observed in a judgment that the allegations of the plaintiff are supported by documents and papers filed by the defendants do not support their allegations. There is no document on record on behalf of the de fendants showing that after the death of Juggu, the disputed land was inher ited by this daughter Smt. Sukhana or his son-in-law Hula as alleged by the defendants. The Trial Court has decided the issue No. 3 in favour of the plain tiff and held that the plaintiffs are entitled for the land in question. 19. In Deep Chand v. Mohan Lal, 2000 (39) ALR 562=2000 ACJ 1972 the Honble Supreme Court in para graph 5 of the report held as under: ". . . . . . . . . . Generally a decree or order becomes enforceable from its date, but in appropriate cases the Court passing the decree may prescribe time wherefrom the decree becomes enforceable on a future date. It must, how ever, be remembered that the purpose of execution proceedings is to enable the decree holder to obtain the fruits of his decree. In case where the lan guage of the decree is capable of two interpretations, one of which assist the decree holder to obtain the fruits of the decree and the decree, the in terpretation which assist the decree holder should be accepted. In case where the lan guage of the decree is capable of two interpretations, one of which assist the decree holder to obtain the fruits of the decree and the decree, the in terpretation which assist the decree holder should be accepted. The execu tion of the decree should not be made futile on mere technicalities which does not however, mean that where a decree is incapable of being executed under any provision of law it should, in all cases, be executed notwith standing such bar or prohibition. A rational approach is necessitated keep ing in view the prolong factum of litigation result in the passing of a decree in favour of a litigant. The policy of law is to give a fair and liberal and not a technical construction enabling the decree-holder to reap the fruits of his decree. " (Emphasis supplied) 20. It is significant to mention that in the present context, the strict inter pretation would defeat justice and the law is always subservient to and is in aid to justice. At this juncture it would be appropriate to reproduce the observa tion made by this Court in Nand Kishore Sharma v. The Additional Judge Aligarh and others 2002 (49) FLR 392 (H. C.-L. B.): "if a litigant is permitted to first linger on the trial of the case and then the execution of the decree for more than two decades, the common man will start losing faith in the judicial process. It is the duty of the Court to see that frivolous objections and devises innovated by a litigant to linger on and stall proceedings pending before are not permitted. This is a fit case where this Court, under Article 226 of the Constitution, should issue direc tions to the respondent No. 3 to comply with the decree passed by the Trial Court and give possession of the property in dispute to the petitioner forth with. " 21. Undoubtedly, this case has a long history as the suit was filed by the father of respondent Nos. 3 to 5 and father of respondent Nos. " 21. Undoubtedly, this case has a long history as the suit was filed by the father of respondent Nos. 3 to 5 and father of respondent Nos. 7 to 10 in the year 1969 for possession but in spite of having decree in their favour, which is con firmed upto this Court in second appeal but they abusing the process of law for the last several years by taking advantage of the technicalities and remained in possession of the property in dispute. Further a perusal of the plaint shows that on the last page, description of the property i. e. , area, number of plot and the nature of land, has been mentioned. Further there is a mention of a house and various trees like, Mango, Jamun, Jackfruit, Neem, Bans and Pepal. The Apex Court in the case of Deep Chand (supra) has held in specific words that the policy of law is to give a fair and liberal deal and not a technical construc tion enabling the decree holder to reap the fruits of his decree. 22. The cases relied upon by the petitioner are not attracted under the facts and circumstances of the present case. 23. In view of the above discussions, no good ground for interference is made out under Article 226 of the Constitution and I find no infirmity or illegality in the impugned orders dated 19. 9. 2005 passed by the Civil Judge and the order dated 28. 9. 2006 passed by the Additional District Judge. 24. The writ petition is dismissed. Costs easy. Petition Dismissed. .