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2016 DIGILAW 1481 (HP)

Fouza Ram v. Jaishi Ram

2016-07-26

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present civil revision petition filed under Section 115 of the Code of Civil Procedure is directed against the order dated 1.11.2010, rendered by learned Civil Judge, (Jr. Div.-II) Kangra, HP, in Execution petition No. 3 of 2009, whereby she has ordered for issuance of warrant of possession in favour of Decree Holders (respondents No. 1 to 4) qua field No. 598/54 to the extent of an area 0-01-08 hectares comprised in field No. 398 in this regard. Learned Executing Court also directed Patwari Halqua and field Kanungo to visit the spot and assist in the execution of the warrant of possession. 2. Briefly stated facts as emerge from the record necessary for adjudication of the case are that late Smt. Piyangla Devi (since deceased) through LRS (present respondents No. 1 to 4) filed a suit of declaration against the present petitioner and proforma respondent in the year 1989 before the learned Sub Judge, Ist Class (2), Kangra, HP., which was decreed by learned Sub Judge vide order 8.4.1996. Feeling aggrieved and dis-satisfied with the judgment and decree dated 8.4.1996, proforma respondent namely Sita Ram, filed appeal before the learned District Judge, Kangra at Dharamshala, HP, who vide judgment and decree dated 6.6.1997 allowed the appeal and dismissed the suit of the plaintiffs ( respondents No. 1 to 4) qua proforma respondent. Record further reveals that, against the aforesaid judgment and decree passed by learned District Judge, present respondents No. 1 to 4 preferred Regular Second Appeal bearing No. 215 of 1997 before this Court, which was ultimately dismissed vide judgment dated 30.5.2008. Careful perusal of the record made available to this Court further suggests that on the strength of judgment and decree dated 8th April, 1996, passed by the learned trial Court, respondents No. 1 to 4 (plaintiffs) preferred an execution, praying therein for correction of revenue entries to the effect that possession qua one half share of the land in khasra No. 398 in favour of proforma respondent and half share of khasra No. 598/54 to the extent of 0-01-08. Respondents No. 1 to 4 in the execution preferred by them prayed for following relief:- “It is, therefore, respectfully submitted that the warrant for the delivery of symbolic possession qua khasra number 598/54 to the extent of an area measuring 0-01-08 hectares to the decree holders and to defendant No. 2 qua ½ share of khasra No. 398 area measuring 0-02-85 hects may be issued and the correction be ordered to be made in the revenue record.” 3. Since this Court before deciding the controversy at hand, had occasion to peruse the entire record of the executing Court, perusal whereof suggests that present petitioner filed reply to the application specifically denying the claim of respondents No. 1 and 4 but learned trail Court ignoring the submissions having been made on behalf of the present petitioner ordered to issue warrant of possession qua field No. 598/54 to the extent of area 0-01-08 hectares in favour of respondents No. 1 and 4 to the extent of area measuring 0-01-08 hectares and JD No. 2 (proforma respondent herein). It would be apt to reproduce the relevant para of the order passed by the learned executing Court. “Let warrant of possession be issued in favour of the DHs qua field No. 598/54 to the extent of an area 0-01-08 hects to JD No.2 to the extent of an area measuring 0-02-85 hects comprised in field No. 398. The Patwari Halqua and field Kanungo are directed to visit the spot and assist in the execution of the warrant of possession. The Bailiff of the court is also directed to visit the spot and assist in the execution of the order. The requisite steps be taken and then warrant of possession be issued accordingly.” 4. Mr. R.K. Gautam, Senior Advocate, duly assisted by Ms. Megha Gautam, Advocate, for the petitioner, vehemently argued that bare perusal of the impugned order suggests that learned Civil Judge (Jr. Div.-II) Kangra has exceeded its jurisdiction while issuing warrant of possession in favour of respondents No. 1 and 4. Mr. Gautam, vehemently argued that there was no occasion, whatsoever, for the executing Court to go beyond the judgment and decree passed by the learned trial Court dated 8.4.1996. During arguments having been made by Mr. Div.-II) Kangra has exceeded its jurisdiction while issuing warrant of possession in favour of respondents No. 1 and 4. Mr. Gautam, vehemently argued that there was no occasion, whatsoever, for the executing Court to go beyond the judgment and decree passed by the learned trial Court dated 8.4.1996. During arguments having been made by Mr. Gautam, he made this Court to travel through the judgment and decree dated 8.4.1996 passed by the learned trial Court as well as judgment and decree dated 6.6.1997 passed by learned District Judge, Kangra to demonstrate that executing Court has gone beyond the decree passed by the court below and has extended those reliefs to respondent No.4, which were never intended to be extended by the courts below while passing judgment and decree dated 8.4.1996. He specifically invited attention of this Court to the findings returned by the learned appellate Court in the appeal preferred by (proforma respondent) Sita Ram, wherein learned first appellate Court while allowing the appeal preferred by him concluded as under:- 18. in view of my above discussion and findings, I find sufficient force in the appeal. Accordingly, the appeal is accepted. The impugned judgment and decree are set-aside. The suit of the plaintiff s qua the share of Sita Ram defendant No.2 regarding the land comprised in Khasra No. 398 measuring 0-02-85 hectares is dismissed. Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared. The record of the learned court below along with a copy of this judgment be returned. File after its due completion be cosigned. Mr. Gautam, vehemently argued that once learned first appellate Court had dismissed the suit of the plaintiff qua the share of Sita Ram-defendant No.2 (proforma respondent) regarding the land comprised in khasra No. 398, there was no occasion, whatsoever, for the executing Court to issue warrant of possession in favour of decree holder qua the land measuring 0-02-85 hects comprised in field No. 398. Mr. Gautam also contended that it stands duly proved on record that proforma-respondent has nothing to do with the exchange of land taken place between the petitioner and respondents No. 1 to 4 and further submitted that since exchange of land had taken place between the present petitioner and respondent Nos. Mr. Gautam also contended that it stands duly proved on record that proforma-respondent has nothing to do with the exchange of land taken place between the petitioner and respondents No. 1 to 4 and further submitted that since exchange of land had taken place between the present petitioner and respondent Nos. 1 to 4, no order as has been contained in order dated 1.11.2010 could be passed by the learned executing Court below. It is also contended on behalf of the petitioner that learned executing Court has fallen in grave error while passing impugned order ignoring the relevant fact that both the parties (petitioner as well as respondents No. 1 to 4), are already in possession of land, which has been exchanged by them. Mr. Gautam, with a view to substantiate his aforesaid submission invited attention of this Court to the relief prayed for in the Execution petition by respondents No. 1 to 4, wherein it has been stated that “It is, therefore, respectfully submitted that the warrant for the delivery of symbolic possession qua khasra number 598/54 to the extent of an area measuring 0-01-08 hectares to the decree holders and to defendant No. 2 qua ½ share of khasra No. 398 area measuring 0-02-85 hects may be issued and the correction be ordered to be made in the revenue record.” Mr. Gautam, forcefully contended that while issuing warrant of possession, learned Court miserably failed to appreciate that parties to lis are already in the possession of land, which they had got in exchange and only symbolic possession was required to be given to the parties in terms of the relief prayed for by respondent No. 4 in the execution petition. He also contended that proforma respondent is also in possession of his share on land and as such, he has/had nothing to do with the exchange of land took place between the present petitioner and respondents No.1 to 4 and, as such, learned court below while issuing warrant of possession in favour of proforma respondent has committed grave error, which deserves to be rectified in accordance with law by this Court. 5. Per contra, Mr. Anuj Nag, learned counsel representing respondents No. 1 to 4 fairly conceded to the submissions made on behalf of the petitioner in the present case. Mr. 5. Per contra, Mr. Anuj Nag, learned counsel representing respondents No. 1 to 4 fairly conceded to the submissions made on behalf of the petitioner in the present case. Mr. Nag fairly stated that executing Court could not go beyond the directions contained in judgment and decree dated 8.4.1996, passed by learned trial Court, which was further modified vide judgment dated 6.6.1997 by learned appellate Court in the appeal preferred by proforma respondent. He also stated that only symbolic possession of land exchanged between parties (petitioner and respondent s No. 1 to 4) was required to be given by the executing Court since parties to lis are already in possession of their respective exchanged land. He also fairly conceded that only prayer was made to the executing Court to issue warrant for delivery of symbolic possession qua khasra No. 598/54 to the extent of area measuring 0-01-08 hectare to the decree holders (respondents No. 1 to 4) and to defendant No.2 (proforma respondent) qua half share of khasra No. 398 measuring 0-02-85 hectares. 6. I have heard learned counsel for the parties as well carefully gone through the record. 7. It is well settled that executing Court cannot go beyond the decree passed by the courts below and any deviation, if any, from the same may render order passed in this regard void and illegal. This Court during proceedings of the petition at hand, had an occasion to peruse the record of the court below, perusal whereof clearly suggests that respondents No 1 to 4 (decree holders) filed civil suit for declaration to the effect that plaintiffs are the owner in possession of land bearing khata No. 17 min, khatauni No. 34 min, khasra No. 398 measuring 0-05-71 hect. situated at Mohal Gehar, Tehsil Dharamshala as entered in jamabandi for the years on the basis of an agreement of exchange dated 29.3.1977 of land bearing khata No. 14 khatauni No. 27, khasra No. 598/54 area measuring 0-02-16 hect. Aforesaid suit filed by Respondents No. 1 to 4 (plaintiffs) was decreed vide judgment dated 8.4.1996 passed by learned Sub Judge, Ist Class (2), Kangra, which was further modified by the learned District Judge, Kangra in the appeal preferred by proforma respondent, wherein suit of plaintiffs (respondent No. 1 to 4) was dismissed qua proforma respondent. Aforesaid suit filed by Respondents No. 1 to 4 (plaintiffs) was decreed vide judgment dated 8.4.1996 passed by learned Sub Judge, Ist Class (2), Kangra, which was further modified by the learned District Judge, Kangra in the appeal preferred by proforma respondent, wherein suit of plaintiffs (respondent No. 1 to 4) was dismissed qua proforma respondent. It also stands established that aforesaid judgment and decree passed by learned first Appellate Court attained finality since appeal preferred by respondents No. 1 to 4 was dismissed by the Hon’ble High Court. 8. Careful perusal of para-10 of the execution petition suggests that decree holders only prayed for warrant of symbolic possession qua half share of land in khasra No. 398 area measuring 0-02-85 hect. in favour of defendant No.2 (proforma respondent) and 2 ½ share of khasra No. 598/54 to the extent of 0-01-08 hectares in favour of Decree Holders (Respondents No. 1 to 4). It appears that while passing impugned order, learned executing Court failed to take note of specific reply/objections filed on behalf of the petitioner, where it has been specifically stated that as per judgment and decree of learned Civil Judge, Kangra and learned District Judge, proforma respondent (Judgment Debtor) has no concern with the exchange because exchange is only entered between respondents No. 1 to 4 and present petitioner and as such, decree, if any, was to be executed qua the exchanged land in favour of the applicants i.e. respondents No. 1 to 4 and JD No.1 (present petitioner) by issuing warrant of possession for delivery of symbolic possession in terms of relief claimed in execution petition. Para 4 of the reply also suggests that JD No. 1 has already constructed his house upon the exchanged land taken by him from applicant/respondents No. 1 to 4. Perusal of reply filed by JD. No. 2 (proforma respondent) itself clarifies issue, where in para-4 of reply, it has been stated that replying JD has no concern with khasra No. 598/54 and the decree dated 8.4.1996 passed by learned Sub Judge upholding the exchange agreement entered between petitioner and respondents No. 1 to 4. Perusal of reply filed by JD. No. 2 (proforma respondent) itself clarifies issue, where in para-4 of reply, it has been stated that replying JD has no concern with khasra No. 598/54 and the decree dated 8.4.1996 passed by learned Sub Judge upholding the exchange agreement entered between petitioner and respondents No. 1 to 4. He has further stated that suit of the plaintiff against him regarding land comprising khasra No. 398 has been already dismissed by the District Judge and he has nothing to do with the present application and dispute, if any, is between JD No. 1 i.e. respondents No. 1 to 4 and present petitioner. It has also come in his reply in para 7 that replying JD No. 2 is already in possession qua half share of the land in khasra No. 398 and, as such, application has been wrongly filed against him. 9. Further perusal of the judgment dated 6.6.1997 passed by the learned District Judge makes it clear that land comprising khata No. 17 min, khatauni No. 34 min, Khasra No. 398 measuring 0-5-71 hectares situated at Mohal Ghehr, Tehsil Dharamshala, District Kangra, HP, is entered in the ownership and possession of the defendants (present petitioner) as per jamabandi for the year, 1985-86, whereas land comprising khata No. 14 min, khatauni No. 27 min, Khasra No. 598/54 measuring 0-2-16 hectares situated at Mohal Ghehr, Tehsil Dharamshala, District Kangra, HP, is entered in the ownership and possession of the plaintiff as per the jamabandi for the year 1985-86. It also emerge from the perusal of the judgment that aforesaid plaintiffs and the defendants had agreed to exchange their respective lands and in this regard, an agreement of exchange was also entered into between the parties on 29.3.1977 and as such, parties are in possession of land as per agreement of exchange. It also appears that since defendant No. 2 (proforma respondent) had alleged that he had never agreed to exchange of property of plaintiffs; neither he delivered any possession of the land to them nor he signed the agreement. It also appears that since defendant No. 2 (proforma respondent) had alleged that he had never agreed to exchange of property of plaintiffs; neither he delivered any possession of the land to them nor he signed the agreement. It was held in the appeal preferred by him against the judgment and decree dated 8.4.1996 passed by the learned sub Judge, Ist Class, that suit of the plaintiffs qua the share of Sita Ram (proforma respondent) regarding land comprising khasra No. 398 measuring 0-02-85 hects., is dismissed, meaning thereby, suit of the plaintiffs qua the rest of defendants, which also includes present petitioner, was upheld/allowed. Perusal of judgment and decree dated 8.4.1996, clearly suggests that learned court below while decreeing the suit of the plaintiff had specifically held plaintiffs (respondents No. 1 to 4) to be owner in possession of land bearing khata No. 17 min, Khatauni No. 34 min, khasra No. 398 area measuring 0-05-71 hectares situated at Mohal Ghehr, Tehsil Dharamshala, District Kangra, as per jamabandi for the year 1985-86 on the basis of an oral agreement of exchange, which was reduced into writing on 21.3.1997 of the land bearing Khata No.14, Khatauni No. 27, khasra No. 598/54 measuring 0-02-16 hectares, situated at Mohal Ghehr, Tehsil Dharamshala, Distt. Kangra as entered in Jamabandi for the year, 1985-86 and is entitled to remain in possession of same. Vide aforesaid judgment and decree, respondents No. 1 to 4 were held entitled to remain as owner in possession of land in field No. 398 also in future, whereas entry showing defendant ( present petitioner) as owner in possession of the suit land, was held to be ineffective and it was specifically held in judgment and decree dated 8.4.1996 that defendants after the exchange have nothing to do with the ownership and possession of the suit land, meaning thereby, that present petitioner (defendant ) has no right to claim any domain over the land field No. 398, which was received by the plaintiffs (respondents No. 1 to 4) in exchange of land bearing Khata No. 14 min, khatauni No. 27 min, Khasra No. 598/54 measuring 0-2-16 hectares situated at Mohal Ghehr, Tehsil Dharamshala, District Kangra, HP. 10. 10. After careful perusal of the judgment and decree passed by the Court below, which was further modified by the learned District Judge, it clearly emerge that plaintiffs (respondents No. 1 to 4) were held to be owner in possession of the land in field No. 398, which was procured by them in exchange of khsara No. 598/54 measuring 0-02-16 hectares from the defendant (present petitioner) but careful perusal of the warrant of possession dated 1.1.2010 issued by the executing Court clearly suggests that learned executing Court has fallen in grave error while issuing warrant of possession in favour of decree holders i.e. respondents No. 1 to 4 qua the field No. 598/54 to the extent of area 0-01-08 hectares, which is admittedly in the possession of present petitioner-defendant on the strength of exchange agreement. 11. After perusing the impugned order, it also appears that learned executing Court has also exceeded its jurisdiction by further issuing warrant of possession for the land measuring 0-02-85 hectares comprised in field No. 398 in favour of JD No. 2 (proforma respondent), who has himself stated in his reply to execution petition that he is already in possession qua half share of the land in khasra No. 398. Moreover, as clearly emerge from the judgment passed by the learned first appellate Court that suit of the plaintiffs i.e. present respondents No. 1 to 4, has been already dismissed qua defendant No. 2 i.e. proforma respondent, with regard to the land comprising khasra No. 398 measuring 0-02-85 hectares. 12. It is ample clear from the aforesaid discussion that learned executing Court, while issuing warrant of possession vide order dated 1.11.2010 has gone beyond the decrees passed by the courts below and as such, impugned order deserves to be rectified in accordance with law. 13. In the present case, learned executing Court was only competent to order for execution of decree passed by learned trial Court dated 8.4.1996 further modified by first appellate Court in appeal No. 69-K/XIII/96 dated 6.6.1997. 13. In the present case, learned executing Court was only competent to order for execution of decree passed by learned trial Court dated 8.4.1996 further modified by first appellate Court in appeal No. 69-K/XIII/96 dated 6.6.1997. It clearly emerge from the judgment and decree dated 8.4.1996 that plaintiffs i.e. respondents No. 1 to 4 have been held entitled to remain as owner in possession of the land in field No. 398, which he had got in exchange of land bearing khata No 14 min, khatauni No. 27 min, Khasra No. 598/54 measuring 0-2-16 hectares, meaning thereby, learned executing Court while passing warrant of possession, if any, was to ensure that respondents No. 1 to 4 are put into possession of land comprising land field No. 398 and nothing more than that. It appears that court below while passing warrant of possession failed to take note of the specific relief claimed by the decree holder himself, wherein he himself prayed that symbolic possession be given as per judgment and decree qua khasra No. 598/54 to the extent of area measuring 0-01-08 and to defendant No. 2 qua half share of khasra No. 398 measuring 0-02-85 hectares because admittedly, plaintiffs (respondents No. 1 to 4) were in possession of khasra No. 398 measuring area 0-02-85 hectares at the time of filing of the suit, which he had actually received in exchange of khasra No. 598/54, which was in possession of present petitioner. Learned Executing Court also failed to take note of the fact that suit of the plaintiffs was dismissed by the learned first appellate Court qua JD No. 2-proforma respondent, who was already in possession of land measuring 0-02-85 hectare comprised in field No. 398. 14. Learned Executing Court also failed to take note of the fact that suit of the plaintiffs was dismissed by the learned first appellate Court qua JD No. 2-proforma respondent, who was already in possession of land measuring 0-02-85 hectare comprised in field No. 398. 14. Consequently, in view of the detailed discussion made herein above, present revision is allowed and impugned order dated 1.11.2010 passed by the executing Court issuing warrant of possession in favour of decree holders qua the field No. 598/54 to the extent of an area 0-01-08 hectares to JD No.2 (proforma respondent) to the extent of an area measuring 0-02-85 hectares comprised in the field No. 398 is quashed and set-aside Learned executing Court is directed to issue warrant for delivery of symbolic possession strictly in terms of judgment and decree passed on 8.4.1996, perusal whereof clearly suggests that judgment Debtor No. 1 i.e. present petitioner, is already in possession qua field No. field No. 598/54 and respondents No.1 to 4 have been held to be owner in possession of field No. 398 on the basis of exchange agreement dated 21.3.1997 duly proved on record by Respondents No. 1 to 4 (plaintiffs) in civil suit No. 329 /89 filed before the learned Sub Judge, Kangra.