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2014 DIGILAW 1556 (PNJ)

Avtar Singh v. Raghbir Singh

2014-11-14

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J. (Oral) - The appellant is aggrieved against the orders dated 13.02.2012 and 13.10.2012 passed by the Courts below, dismissing his objection filed in the execution. 2. In short, Civil Suit No.297 of 2009 was filed by Raghbir Singh against his son Gurmukh Singh-defendant no.1 and his family. It was a suit for possession in respect of ½ share of the house no.84, ward no.9, i.e. one shop, bathroom, WC, kitchen, covered verandah, room at ground floor and room, verandah, toilet along with terrace at the first floor, shown in red colour in the site plan. The total area of the house comes to 28' 9" x 73' 4". It is alleged that the defendants are in illegal possession of the portion of ground floor, first floor and the terrace to the extent of 5 marlas approximately. The plaintiff also claimed recovery of Rs.2,88,000/- for use and occupation of the demised premises. The suit was hotly contested by the defendnats and the trial Court decreed the suit with costs holding the plaintiff entitled to take possession in respect of ½ share in the house in dispute, shown in red colour in the site plan, from the defendants but the suit for recovery of Rs.2,88,000/- for use and occupation of the suit property was dismissed. It was made clear by the Court that if the defendants would not vacate the premises within 3 months from the date of the decree, the plaintiff would be entitled to recover use and occupation charges at the rates prevalent in the area. The said decree dated 21.01.2010 was challenged by the defendants by way of appeal but could not succeed. 3. Accordingly, the decree passed by the trial Court attained finality between the parties. The plaintiff filed the execution for recovery of possession. At that stage, the appellant, who alleges himself to be the tenant in the shop which is a part of the demised premises, filed objection that the decree has been passed without impleading him as a party and as both the plaintiff and the defendnats are in collusion with each other, the decree has been obtained by the plaintiff fraudulently to dispossess the objector from lawful occupation of the shop in dispute as a tenant. 4. 4. The contention raised by the appellant was denied by the respondents rather the plaintiff had alleged that the appellant is in connivance with the defendnats. Although the Executing Court did not frame any issue on the pleadings of the parties yet the appellant placed on record the receipts of rent executed filed by the plaintiff and defendnat no.1 and also the receipt of the electricity charges of the demised premises paid by the appellant but the Courts below, after appraising those documents and without giving opportunity to the appellant to lead his oral as well as documentary evidence, dismissed the objection. It was recorded by the Courts below that the signatures of plaintiff Raghbir Singh do not tally on the receipts of rent with the documents available on record which he had filed. 5. Counsel for the appellant has argued that though he had filed the objection on the ground that both father and son, i.e. plaintiff and defendant no.1, are in collusion with each other, yet the plaintiff has alleged in his reply that the objector is in collusion with the judgment debtors. Thus, it is submitted that it is a pure question of fact which could not have been decided by the Courts below without framing appropriate issues and allowing the parties to lead their respective oral as well as documentary evidence. In support of his submission, he has relied upon a decision of this Court in the case of Bhagwan Bai v. Chiranji Lal and another, [2009(2) Law Herald (P&H) 1099] : 2009(3) Civil Court Cases 139 (P&H) in which the same view has been expressed. 6. Counsel for respondent no.1 has vehemently argued that the collusion, if any, is on the part of the objector and the judgment-debtors as the judgment-debtors are trying to retain the possession of the property in dispute, though the decree has attained finality in favour of the plaintiff. However, during the course of hearing, he has submitted that the appellant is in possession of the suit property though forcibly. 7. After hearing learned counsel for the parties, examining the record and keeping in view the facts and circumstances of the case, I am of the considered opinion that the impugned orders passed by the Courts below are liable to be set aside. 7. After hearing learned counsel for the parties, examining the record and keeping in view the facts and circumstances of the case, I am of the considered opinion that the impugned orders passed by the Courts below are liable to be set aside. It is a case where not only the objector is alleging collusion between the plaintiff and the defendnats but also the plaintiff is alleging collusion of the objector with the defendants though the plaintiff and defendants belong to the same family. In such a circumstance where the objector has also came to the Court with some documentary evidence, it was incumbent upon the Executing Court to have framed appropriate issues and allowed the parties to lead their respective evidence to prove the factum that whether the objector is a tenant in the demised premises or is in forcible possession. Even otherwise, if the statement of the counsel for respondent no.1 is to be accepted which he has made at the bar that the objector is in possession of the shop in dispute forcibly, until and unless he is a party to the suit, he cannot be dispossessed even otherwise than due course of law and should have been made a party by the plaintiff at the time of filing of the suit. 8. The cumulative effect of the aforesaid discussion is that the learned Courts below have committed a patent error in not framing the appropriate issues and allowing the parties to lead their respective evidence to prove the status of the objector in the property in dispute. Hence, the present appeal is hereby allowed and the impugned orders passed by the Courts below are set aside. 9. At this stage, counsel for respondent no.1 has submitted that the Executing Court may be requested/directed to decide the objection expeditiously as the plaintiff is a senior citizen being more than 90 years of age. 10. This request appears to be genuine and hence, the Executing Court is directed to decide the objection, after framing the relevant issues and allowing the parties to lead their evidence, expeditiously and preferably within a period of 6 months from today. 11. The parties are directed to appear before the Executing Court on 08.12.2014. ---------0.B.S.0------------ —————————