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2010 DIGILAW 1294 (PNJ)

Kewal Singh v. Wadhawa Singh

2010-03-26

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1. This revision petition arises out of an order dated 29.7.2008 passed by Additional Civil Judge (Sr. Divn.), Sultanpur Lodhi, Kapurthala whereby Objections filed under Section 47 and Order 21 Rule 35 read with Section 151 of the Code of Civil Procedure, 1908 (for short `CPC) by the judgment debtor has been allowed to the extent that decree holders/petitioners would not get physical possession of the land in dispute and rather get symbolic possession as the judgment debtor has purchased the share of one of the decree holders Bakshish Singh and has become the co-owner. 2. This case has a chequered history. The suit was filed by the plaintiff/petitioners for possession of land measuring 11 kanals 15 marlas bearing Khewat Khatoni No. 1328/2833, Khasra No. 42/19(9-11), 20/1/2-4 situated in the revenue estate of village Tibba, Tehsil Sultanpur Lodhi and for recovery of Rs. 4856/- as mesne profits from Kharif 1984 to Rabi 1987 which was decreed by the Sub Judge 1at Class, Sultanpur Lodhi vide his judgment and decree dated 7.6.1990 to the effect that "It is hereby ordered that suit of the plaintiffs for possession of the entire suit land along with recovery of mesne profits from Rabi 1985 to Rabi 1987 succeeds and the same is hereby ordered to be decreed with costs of the suit." 3. In the first appeal, it was alleged by the defendant that he is in possession of land in dispute as co-sharer as 3 kanals 11 marlas of land in dipute which was exchanged by him from the co-sharers and remaining land is in his possession on the basis of agreement to sell dated 8.10.1986, 9.10.1987 and 2.11.1989. In this way, he has claimed to be in permissive possession over the land in dispute, however, while dismissing his appeal vide judgment and decree dated 9.5.1995, the learned lower Appellate Court recorded a finding that "In this respect the learned counsel has particularly referred to Jamabandi Ex. P1 for the year 1983-84. As per entries of jamabandi possession of the appellant of khasra numbers 42/19 and 20/1 was recorded under Bela Singh and others. It is more than clear from this entry that the appellant was not recorded as the co-sharer of any khasra number of the land in dispute. P1 for the year 1983-84. As per entries of jamabandi possession of the appellant of khasra numbers 42/19 and 20/1 was recorded under Bela Singh and others. It is more than clear from this entry that the appellant was not recorded as the co-sharer of any khasra number of the land in dispute. Rather his possession was recorded as tenant." The learned first Appellate Court, however, modified the decree of the trial Court for possession of the suit land along with recovery of mesne profits amounting to Rs. 3236/- from Rabi 1985 to Rabi 1987. The judgment and decree of the first Appellate Court dated 9.5.1995 became final which was not challenged any further by Wadhawa Singh. The petitioners then filed an execution application in which Objections under Section 47 and Order 21 Rule 35 read with Section 151 of CPC were filed by Wadhawa Singh which were allowed by Additional Civil Judge (Sr. Divn.), Sultanpur Lodhi vide order dated 11.4.2005. The petitioners assailed the order by filing CR. No. 5708 of 2005 which was allowed by this Court on 12.5.2008 observing that "After hearing the learned counsel for the parties and keeping in view the rival contentions noticed above, however, in the absence of any material on record to specifically hold that the respondent was held to be a tenant, I am of the considered view that the matter requires reconsideration by the Executing Court. Consequently, the impugned order dated 11.4.2005 is set aside and the Executing Court is directed to reconsider the objections submitted by the respondent-judgment debtor in the light of the contentions noticed above as also the judgment passed by the Honble Supreme Court relied upon by the petitioner-decree holder. The Executing Court shall pass an appropriate order in accordance with law within a period of two months from the date of receipt of certified copy of this order." In the meantime, the execution petition was dismissed in default and the application for restoration was also dismissed against which the petitioners had to file CR No. 5529 of 2006 which was allowed with the following observations : "The petitioner is entitled to harvest the fruits of the Civil Court decree and the same cannot be permitted to be frustrated on hypertechnical grounds. Accordingly, this revision petition is allowed, the impugned order dated 31.8.2006 is set aside subject to the petitioners depositing the requisite warrants fee within a period of one month from the date of receipt of certified copy of this order, it is directed that the execution petition filed by them shall stand revived." 4. Pursuant to the remand order passed in CR No. 5708 of 2005 Additional Civil Judge (Sr. Divn.), Sultanpur Lodhi disposed of the Objection vide impugned order dated 29.7.2008 observing that "However, as discussed above, since J.D. has purchased the share of one of D.H. Bakhshish Singh and it is not the case that the other D.Hs. They are having much more share than that of Bakhshish Singh this decree in question is joint and is not divisible. Thus, DH can get only symbolic possession and they can get actual possession only in final partition. The objection petition of J.D. is, therefore, accordingly, upheld. However, execution as such cannot be dismissed and symbolic possession is required to be delivered to the decree holder. Warrants of symbolic possession be issued in favour of D.Hs. Bhajan Singh, Kewal Singh, Tara Singh and Gian Singh for 27.8.2008 on filing of warrants fee etc." 5. Aggrieved against the order dated 29.7.2008 passed by Additonal Civil Judge (Sr. Divn), Sulatanpur Lodhi, the present revision petition has been filed whereby he has held that decree holders are only entitled to symbolic possession and not the actual physical possession. Learned counsel for the petitioners has argued that a categoric finding has been recorded by the first Appellate Court, which has become final between the parties, that in view of the jamabandi for the year 1983-84 (Ex. P1) the possession of the respondent over the disputed khasra numbers is of a tenant and not of a co-sharer. It is submitted that since that findings stand confirmed, purchase of part of the land in dispute by the judgment debtor would not allow him to keep the possession of the entire property of which he claims to be tenant as well as co-owner. It is submitted that since that findings stand confirmed, purchase of part of the land in dispute by the judgment debtor would not allow him to keep the possession of the entire property of which he claims to be tenant as well as co-owner. In this regard, learned counsel for the petitioners has relied upon a decision of the Supreme Court in the case of T. Lakshmipatio and others v. P. Nithyananda Reddy and others, 2003(2) RCR(Rent) 117 : 2003(3) RCR (Civil) 305 to contend that in case of a tenant acquiring partial interest in property by virtue of the tenancy right it would not merge with ownership. 6. As against this, learned counsel for the respondent has relied upon a decision of the Supreme Court in the case of Jagdish Dutt v. Dharam Pal, 1999(1) RCR(Rent) 466 : 1999(2) RCR (Civil) 652 to contend that where a share of a co-parcener has been purchased by the judgment debtor, the actual physical possession cannot be delivered to the other decree holders and the only way out is the suit for partition. 7. Leaned counsel for the respondent has further argued that the judgment debtor is nowhere proved to be a tenant as a categoric finding has been recorded by the Appellate Court to the effect that "I am inclined to hold that the trial Court rightly decided that the plaintiffs are the co-sharers of the land and the possession of the appellant being illegal". It is further submitted that the trial Court decreed the suit for recovery of mesne profits would show that the judgment debtor was in unauthorised possession over the land in dispute being a trespasser, therefore, the judgment cited by learned counsel for the petitioners is not applicable. It is reiterated that judgment cited in the case of Jagdish Dutt (supra) is applicable to the facts of the case. 8. I have heard both the learned counsel for the parties and have given my thoughtful consideration to their respective contentions. 9. There is no denial of fact that the respondent is a trespasser and not a tenant as the decree has been passed by the trial Court for mesne profits which could only be passed against a person who is in unauthorised possession. 9. There is no denial of fact that the respondent is a trespasser and not a tenant as the decree has been passed by the trial Court for mesne profits which could only be passed against a person who is in unauthorised possession. It is also not disputed that the respondent has purchased a share from the co-owner and has become a co-owner of the property in dispute. In these circumstances, the judgment relied upon by the learned counsel for the petitioner in the case of T. Lakshmipathi and others (supra), would not be applicable as it pertains to the case of a tenant whereas judgment relied upon by the learned counsel for the respondent in the case of Jagdish Dutt (supra) would apply with full force. In the case of Jagdish Dutt (supra), the Apex Court has held as under : "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. 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 shares of the decree holders are defined or those shares can be predicted or the share is not in dispute. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the shares of the decree holders are defined or those shares can be predicted 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 XXI, 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." 10. Learned counsel for the respondent has further relied upon decision of this Court in the case of Ram Singh v. Gurnam Singh and others, 1990(1) R.R.R. 169 : (1989-2) PLR 185 and Kashmir Singh v. Tana and others, 2000 (4) RCR (Civil) 6 to contend that in case of Judgment debtor became co-sharer in the immovable property, decree holder is entitled to symbolic possession, which has been ordered by the learned Court below. 11. In view of the above discussion, I do not find any error in the order under revision and as such, the present revision petition is dismissed with no order as to costs.