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2010 DIGILAW 2845 (PNJ)

Hawa Singh v. Tej Singh

2010-10-06

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. All these petitions are being taken up together, with the consent of the learned counsel for the parties. For the sake of brevity, facts of Civil Revision No. 4175 of 2010 are being taken for the purpose of deciding the lis between the parties. 2. Present petition is filed challenging the order dated 12.01.2010 passed by learned Additional Civil Judge (Senior Division) Meham, thereby dismissing the execution petition filed by the petitioners. 3. The brief facts of the present case are that plaintiffs/decree holders/petitioners herein have filed civil suit seeking permanent prohibitory injunction restraining the defendants - judgment debtors - respondents herein not to interfere in the possession of the plaintiffs over suit property Khewat No. 122, Khatoni No. 716, Khasra No. 6155/4268 (1- 6), 6157/4270 (1-18), 4271 (4-6), 4272 (3-12), measuring 11 Bigha 2 Biswas Pukhta. The suit of the plaintiffs - petitioners herein was decreed vide judgment and decree dated 04.03.1983. The decree dated 04.03.1983 stood confirmed upto the Supreme Court of India. Civil appeal Nos. 3386 to 3391 of 1991 were dismissed by the Honble Supreme Court of India vide judgment dated 27.01.1994. Petitioners / decree holders moved execution application before the learned Executing Court complaining the interference by the judgment debtors in the possession of the decree holders, however, execution came to be dismissed vide judgment dated 12.01.2010. Learned Executing Court in paragraph no. 24 of the impugned order has observed as under:- "24. The decree holder has come to the court with a stand that the defendants / judgment debtors are interfering into his possession and they had made an attempt for forcible possession. The judgment debtors have placed on record the revenue entries and the order of the Revenue Court clearly showing that their long possession had been recognized by the revenue authorities and the revenue authorities had been ordered to be changed in their favour, meaning thereby that their possession in law had been recognized by the revenue authorities and now the revenue entries are in their favour. There is no denial to the orders as well as there is nothing on record to show that order have been upset by any court of competent jurisdiction. It is also not disputed by the decree holder that he was prosecuted under Section 182 of IPC and he had been convicted. There is no denial to the orders as well as there is nothing on record to show that order have been upset by any court of competent jurisdiction. It is also not disputed by the decree holder that he was prosecuted under Section 182 of IPC and he had been convicted. On the directions of the Honble High Court the then SP Rohtak had gone to the spot, where not only the decree holder failed to show his possession but even failed to locate the land in question upon which he was alleging his possession and he was alleging that his possession was disturbed by the owners i.e. JDs. When it is established that he failed to prove his possession on the spot and he was already convicted by the court of learned Addl. Sessions Judge, Rohtak for criminal trespass into the property in question, the question of recognition his possession at this stage does not arise." 4. I have heard learned counsel for the parties and perused the record. 5. Learned counsel for the decree-holders - petitioners argued that once it has been held in the suit and in the judgment of the Apex Court arising out of suit that plaintiffs - decree holders are in possession, it was not open to the Executing Court to come to the conclusion that petitioners - decree holders are not in possession in view of the report of the Superintendent of Police and in view of the entries in the revenue record. It has further been argued by the learned counsel for the petitioners that Honble Apex court in Civil Appeal Nos. 3386 to 3391 of 1991 vide judgment dated 27.01.1994 has observed that in view of the finding of fact recorded against the defendant - appellants that they had never obtained possession of the suit land, the injunction granted to the plaintiffs can be sustained on that ground alone. Learned counsel for the petitioners further argued that it is not open to the defendants - respondents to take forcible possession from the petitioners as they have not filed suit for possession against the petitioners, hence any order of the Superintendent of Police or revenue entries have no consequence. Learned counsel for the petitioners further argued that order of the Civil Court, which has been confirmed upto the Supreme Court of India, will prevail. 6. Learned counsel for the petitioners further argued that order of the Civil Court, which has been confirmed upto the Supreme Court of India, will prevail. 6. Learned counsel for the respondents - judgment debtors vehemently argued that petitioners are not the owners of the property. It has further been argued by the learned counsel for the respondents that petitioners themselves have filed application under section 482 Code of Criminal Procedure before this Court praying to direct the Police Authorities to register an FIR against the owners of the land in dispute, in which this Court vide order dated 14.1.1999 directed the then Superintendent of Police, Rohtak, to look into the allegations and he was directed to lodge an FIR if the allegations were found true and if the allegations were not found true, he was further directed to prosecute the petitioners i.e. the present decree holders and other tenants under Section 182 IPC. It is further argued that Superintendent of Police has found possession of the respondents over the plot and the petitioners were not found in possession. It is further argued that the revenue authorities have also found possession of the Judgment debtors, hence, execution was rightly dismissed. 7. The question involved before this Court is as to whether either Superintendent of Police or revenue authorities or Executing Court can say that petitioners - decree holders were never in possession despite of the findings recorded by the Civil Court, which was confirmed up to the Supreme Court of India, that plaintiffs are in possession and defendants have never obtained possession. 8. In the opinion of this Court, judgment of the competent Civil Court, as confirmed up to the Supreme Court of India, has binding effect over the police authorities and all the Courts including the criminal and revenue Courts. Report of the Superintendent of Police or revenue entries cannot be relied upon to say that finding of the Civil Court confirmed up to the Supreme Court of India, is wrong and plaintiffs - decree holders are not in possession. 9. In the opinion of this court, Judgment debtors - respondents miserably failed to prove as to when possession was taken from the petitioners after the judgment of the Apex Court dated 27.01,1994. If defendants - judgment debtors being owner want to claim possession, they have to file suit for possession. 9. In the opinion of this court, Judgment debtors - respondents miserably failed to prove as to when possession was taken from the petitioners after the judgment of the Apex Court dated 27.01,1994. If defendants - judgment debtors being owner want to claim possession, they have to file suit for possession. Since the petitioners were never dispossessed by adopting due process of law, hence, in the opinion of this Court, report of the Superintendent of Police, in compliance with the orders passed by this Court in a petition under Section 482 Cr.P.C. or alleged spot inspection report of the revenue authorities are baseless and cannot be sustained. Executing Court has travel beyond its jurisdiction. It is the settled law that Executing Court cannot go beyond the decree once civil Court has found plaintiffs - decree holders in possession, It is not open to the Executing Court to say that decree holders are not in possession. 10. Now question comes if judgment debtors are interfering in the possession of the plaintiffs in violation of the judgment and decree which still stands good, what remedy is available with the decree holders. Decree-holders can initiate contempt proceedings against the judgment debtors who have acted in violation and disobedience of the judgment and decree. If decree holders are dispossessed in violation of the decree, decree holders can be put in possession by exercising power under Order 21 Rule 32 CPC. Present petition is allowed. Order impugned is set aside.