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2008 DIGILAW 1587 (PNJ)

Jasmer Singh v. Fakiria

2008-09-17

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. The petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 21.9.2007 attached as Annexure P.7 passed by the learned Executing Court, Kurukshetra dismissing the execution application moved by the petitioner. 2. The petitioner filed a suit for declaration to the effect that the agreement to sell dated 3.4.1984 and 21.4.1984 alleged to be executed by the plaintiff in favour of defendant No. 1 for the sale of suit land measuring 53 kanals 12 marlas was illegal, null and void, inoperative, ineffective, ultra vires and executed by misrepresentation of the facts and fraud. The agreement to sell was said to be inexecutable, fake, fabricated, without consideration and not binding on the rights of the plaintiff. 3. The suit was compromised and decreed in terms of compromise Ex.D.l entered into between the parties. The compromise entered into between the parties reads as under: "Fakiria son of Chhaju Ram, resident of village Devidas Pura, Tehsil Thanesar, District Kurukshetra (plaintiff 1st Party) AND Jasmer Singh son of Singh Ram, resident of 816, Housing Board Colony, Kurukshetra (Defendant 2nd Party). Today on 12.11.1987 both the parties have reached a compromise before a Panchayat regarding agreement to sell dated 3.4.1984 and agreement dated 21.4.1984. The compromise has been made by the party in such a way that the agreement to sell dated 3.4.1984 and 21.4.1984 stand cancelled but the 1st party Fakiria son of Chhaju Ram, resident of village Devidas Pura would execute a sale deed and get it registered for a land measuring 8 kanals in Khasra No. 51/20 in favour of Jasmer Singh defendant and Jasmer Singh would pay Rs. 10,000/- in cash at the time of the said registration of sale deed to Fakiria son of Chhaju Ram. Hence, both the parties have accepted the compromise with their good mind and this compromise was written as a proof. Suit may be decreed accordingly. Written on 12.11.1987." 4. The petitioner moved an application for execution of the said decree in which judgment debtor Fakiria filed objections claiming that the decree was inexecutable as no decree for specific performance was passed in favour of the petitioner. Objections filed by the judgment debtors were dismissed by the executing court by way of order dated 11.3.2004. 5. Written on 12.11.1987." 4. The petitioner moved an application for execution of the said decree in which judgment debtor Fakiria filed objections claiming that the decree was inexecutable as no decree for specific performance was passed in favour of the petitioner. Objections filed by the judgment debtors were dismissed by the executing court by way of order dated 11.3.2004. 5. The judgment debtor challenged the order dismissing the objections to the execution of decree by way of Civil Revision No. 2030 of 2004 which was dismissed on 14.1.2005. 6. In pursuance to the decree passed in favour of the petitioner sale deed was executed by the local commissioner appointed by the court and warrants of possession.was ordered to be issued. Warrants issued were received back with the report that the property has been sold to M/s Krishana Agrotec and to Shri Balaji Rice Mills. Respondent No. 2 M/s Balaji Rice Mills thereafter filed objections under Order 21 Rule 97 of the Code of Civil Procedure (for short the Code). 7. In the objections it was claimed that the objector respondent No. 2 purchased land measuring 8 kanals in the aforesaid Khewat from Fakiria son of Chhaju Ram for sale consideration of Rs. 6 lacs without notice of any litigation pending between Jasmer Singh and Fakiria and by this way he became co-sharer in Khewat No. 165, to the extent of 160/832 share. It was also claimed that the objector was put in possession in Khasra No. 20 to the extent of 4 kanals. It was claimed that even after the sale judgment debtor continued to be owner of land measuring 23 kanals 4 marlas. It was also claimed that the petitioner was only entitled to symbolic possession of the land and therefore, the warrants of possession could not be executed as he would have the remedy by way of partition. 8. Learned Executing Court came to the conclusion that as both the objector and decree holder by virtue of sale deeds in their favour have stepped into the shoes of Fakiria and their status is that of joint holding as co-sharers. The court also observed that as the sale deed in favour of M/s M/s Krishana Agrotec was later in time it could not affect the right of the objector. The court also observed that as the sale deed in favour of M/s M/s Krishana Agrotec was later in time it could not affect the right of the objector. The court also observed that as no relief of possession was granted by the court in the decree the petitioner could not claim possession in execution petition. It was also held that factual possession could be only taken by way of partition in accordance with law, and thus, dismissed the execution application by accepting objections. 9. Learned counsel appearing on behalf of the petitioner challenges the impugned order on the plea that if in the decree for specific performance delivery of possession is not mentioned the possession could still be delivered in execution. In support of this contention reliance has been placed on the judgment of this court in the case of Zorawar Singh v. Rohtas Chaudhary, 2001(3) RCR(Civil) 825 : 2001(3) Civil Courts Cases 337, wherein this court has been pleased to lay down that while allowing prayer of specific performance all the powers vests in executing Court which are required to give full effect to the decree for specific performance. It was also held that the vendor is not allowed to take such objection qua possession after receiving consideration and execution of the sale deed. 10. Learned counsel for the petitioner also placed reliance on the judgment of this court in the case of Piara Singh v. Harbhajan Singh, 2006(2) RCR(Civil) 21 (P&H). to contend that when the transfer is made by way of registered sale deed in the absence of transfer of actual physical possession the sale/transfer of immovable property is not complete and thus, claimed that execution of sale deed in his favour envisaged the handing over of possession. 11. Learned counsel for the petitioner also placed reliance on the judgment of Honble Andhra Pradesh High Court in the case of A. Pramila & Anr. v. G.V. Rathaiah, 1999(1) Civil Court Cases 38 to contend that handing of possession without amendment of decree cannot be said to be illegal or erroneous as the court retains control after passing of decree for specific performance and therefore, has power to grant relief of possession. 12. Mr. v. G.V. Rathaiah, 1999(1) Civil Court Cases 38 to contend that handing of possession without amendment of decree cannot be said to be illegal or erroneous as the court retains control after passing of decree for specific performance and therefore, has power to grant relief of possession. 12. Mr. Amit Jain, learned counsel appearing on behalf of the respondent on the other hand supported the judgment passed by the learned Executing Court by placing reliance on the judgment of this court in the case of Kashmir Singh v. Tana and others 2000(4),RCR(Civil) 6 (P&H), wherein this court was pleased to lay down that when a decree is for joint possession warrant can only be issued for symbolic possession and actual possession can be taken by decree holder only by way of partition in accordance with law. 13. Learned counsel appearing on behalf of the respondent also contended that even if specific portion of the land is sold by a co-sharer then the sale would be deemed to be a sale of share out of joint land and in support of this contention reliance was placed on the judgment of Honble Supreme Court in the case of Mange Ram and Ors. v. Ram Chander, 2002(3) RCR(Civil) 303 : (?) HRR 650, wherein Honble Supreme Court approved the decision of Full Bench of this court in the case of Bhartu v. Ram Sarup, 1981 PLJ 204. 14. Learned counsel for the respondent also placed reliance on the judgment of Honble Supreme Court in the case of R.P.A. Valliammal v. R. Palanichami Nadar and others, 1997(2) RCR(Civil) 679:1999(1) All India Land Laws Reporter 252 wherein Hon We Supreme Court has been pleased to lay down that objections with regard to the execution of the decree can be raised once only and also at the earliest. 15. On consideration of the matter, I find force in the contention raised by the learned counsel for the petitioner. 16. In the present case it may be noticed that the objections with regard to the issuance of warrants of possession filed by the judgment debtor Fakiria were dismissed by the Executing Court on 11.3.2004. 17. Revision filed against the said order was dismissed by this court on 14.1.2005. 18. 16. In the present case it may be noticed that the objections with regard to the issuance of warrants of possession filed by the judgment debtor Fakiria were dismissed by the Executing Court on 11.3.2004. 17. Revision filed against the said order was dismissed by this court on 14.1.2005. 18. Objector who purchased the property during the pendency of the litigation between the parties, therefore, was bound by the order passed by the Executing Court as he stepped into the shoes of Fakiria. Once the objections filed by Fakiria were dismissed, the objections by the subsequent vendee from the judgment debtor were barred by principles of res judicata. The sale in favour of objector respondent No. 2 was also hit by Section 52 of the Transfer of Property Act. 19. Honble Supreme Court in the case of Sanjay Verma v. Manik Roy and Ors 2007,(1) RCR(Civil) 408 : 2007(1) RAJ 12 has been pleased to lay down as under : "The principles specified in Section 52 of T.P. Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienation are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was as party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The Section only postulates a conditicn that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court." 20. The order passed by the learned Executing Court therefore cannot be sustained. The Section only postulates a conditicn that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court." 20. The order passed by the learned Executing Court therefore cannot be sustained. It may be noticed that Honble High Court of Madhay Pradesh in the case of Manoj Kumar Sharma v. Mahadev Prasad & Ors., 2000(4) RCR(Civil) 560 : 2001(1) Civil Court Cases 588 has been pleased to lay down that any order or decree passed against transferor binds the transferee pendente lite and even inquiry qua those objections would be exercise in futility as subsequent transferee is not entitled to any relief. 21. This court in the case of Paramjit Singh v. Mindo & Ors., 2006(4) RCR(Civil) 730 (P&H) has been pleased to lay down as under: "2. Petitioner claimed to be son of Gurdev Kaur, who has purchase the property. The stand of the petitioner, therefore, is that he is not bound by the decree. The learned trial court came to the conclusion that the sale deed in favour of Gurdev Kaur was executed during the pendency of the suit and, therefore, she was bound by the decree. Accordingly, the objections have been dismissed. The learned counsel for the petitioner by placing reliance upon the judgment of this court in Baljit Singh v. Balkar Singh, 2001(1) RCR(Civil) 180 (P&H) contends that objections under Order 21 Rule 97 CPC were to be decided after framing of issues and leading of evidence by the parties and, therefore, the impugned order being contrary to the law laid down by this court can not be sustained. He further placed reliance upon the judgment of the Honble Supreme Court in Anwarbi v. Pramod D.A. Joshi and others, 2001(4) RCR(Civil) 697 SC : 2001(1) PLJ 467 to contend that it was incumbent upon the Court to have framed issues and permitted the parties to lead evidence. The learned counsel for the petitioner contends that the provisions of Order 21 Rule 97 to 101 CPC are applicable to third parties who were otherwise not bound by the decree. In the present case the petitioner derive title from Gurdev Kaur, who in view of the fact that the purchase was made during the pendency of the suit was bound by the decree. In the present case the petitioner derive title from Gurdev Kaur, who in view of the fact that the purchase was made during the pendency of the suit was bound by the decree. Accordingly, no benefit can be drawn from the judgments relied upon by the petitioner. There is no illegality or impropriety in the order passed by the Court below which may call for interference by this court under Article 227 of the Constitution of India." 22. In view of the dismissal of similar objections filed by Fakiria respondent is not entitled to draw any benefit from the law laid down by Honble Supreme Court in the cases of Adcon Electronics Pvt. Ltd. v. Daulat, 2002(1) RCR(Civil) 806 and Mange Ram and Ors. v. Ram Chander (supra) as well judgment of this court in the case of Kashmir Singh v. Tana and others (supra) as the plea of that the petitioner could seek possession by way of partition already stand rejected in the objections filed by Fakiria. The objector having purchased the land during pendency of litigation is bound by earlier order. 23. Consequently, this revision is allowed. Impugned order is set aside. Learned Executing Court is directed to proceed with the execution application moved by the decree holder for execution of warrant of possession issued earlier.