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2023 DIGILAW 355 (HP)

Gama Ram v. Tara Dutt

2023-06-16

JYOTSNA REWAL DUA

body2023
JUDGMENT : Jyotsna Rewal Dua, J Petitioner was a tenant of the respondent. A civil suit was instituted by the respondent for petitioner’s eviction. Concurrent judgments and decrees were passed by the learned Trial Court as well as by the learned First Appellate Court ordering eviction of the petitioner. These judgments and decrees were affirmed in Regular Second Appeal No. 104/2022 (Gama Ram Vs. Tara Dutt) decided on 13.05.2022. The respondent/decree holder thereafter set out to execute the judgment and decree passed by the learned Trial Court. Primarily with the assertion that khasra number of the suit premises was incorrectly mentioned in the judgment and decree and on that basis contending that the decree was in-executable, the judgment debtor (tenant) filed objections to the execution petition. These objections were dismissed by the learned Trial Court on 19.05.2023, hence, the instant revision petition has been preferred by the judgment debtor/tenant. 2. Facts 2(i) It is not in dispute that the petitioner was tenant under the respondent. It is also an admitted fact that the respondent filed Civil Suit No. 96-K/1 of 2011 on 24.11.2011 seeking ejectment of the petitioner from two storeys out of three storeyed building situated in village Shalaghat, Tehsil Kandaghat, District Solan, H.P. The said civil suit was decreed on 19.04.2021 by the learned Trial Court in following manner:- “24. As a sequel to the aforesaid discussion and the findings on the issues, the suit of the plaintiff is decreed with costs, whereby the defendant is directed to vacate the suit premises i.e. two storeys out of three storeyed building situated on the land bearing Khasra No. 220/212/5 situated in village Shalaghat, Tehsil Kandaghat, District Solan, H.P. within the space of one month from the date of this judgment. Decree sheet be prepared accordingly. The file after due completion be consigned to the record room.” The above judgment and decree was affirmed by the learned First Appellate Court on 25.02.2022 and by this Court on 13.05.2022. 2(ii) In the execution petition filed by the respondent-decree holder for enforcement of the aforesaid judgment and decree, the petitioner/judgment debtor invoked Order 21 Rule23(2) of the Code of Civil Procedure (CPC) taking following objections:- “1. That present decree is not executable in present circumstances. 2. That the Ld. Executing Court cannot go beyond four walls of qua decree as passed in Civil Suit No. 96- K/1 of 2011. 3. That present decree is not executable in present circumstances. 2. That the Ld. Executing Court cannot go beyond four walls of qua decree as passed in Civil Suit No. 96- K/1 of 2011. 3. That qua decree as passed by Ld. Civil Court with respect to Khasra No.220/212/5 already stands satisfied and judgment debtor is not in possession of any building in qua khasra number and there is not need to execute the same.” Gist of the objections raised by the petitioner/judgment debtor was that incorrect khasra number was mentioned in the judgment and decree. The actual Khasra Number of the suit premises was 212/202/5, whereas the number mentioned in the judgment and decree was 220/212/5. It was put-forth that the petitioner was not in possession of any building over Khasra No.220/212/5. The judgment & decree qua this number stood satisfied. 2(iii) Learned Trial Court dismissed the objections vide order dated 14.05.2023 holding that the petitioner cannot be permitted to take benefit of incorrect khasra number mentioned in the judgment & decree. Accordingly, warrant of possession was issued. In the above factual background this revision petition has been filed by the judgment debtor. 3. Contentions Learned counsel for the petitioner/judgment debtor asserted that the Executing Court cannot go behind the decree. In the decree, suit premises were described to be situated over Khasra No. 220/212/5. This khasra number is not in possession of the petitioner/judgment debtor, therefore, there is no question of enforcement of the decree against the petitioner qua this khasra number. Decree qua this number stands satisfied. Accordingly, learned counsel for the petitioner prayed for setting aside the order passed by the Executing Court dismissing petitioner’s objections. Learned Senior Counsel for the respondent/judgment debtor submitted that there was a relationship of landlord and tenant between the respondent and the petitioner. This relationship was not disputed by the petitioner/tenant There was only one property that formed this relationship between the two i.e. the suit premises. The suit premises were amply described in the plaint as well as in the judgment & decree and also in the execution petition. There was no vagueness about the description of the suit property. This relationship was not disputed by the petitioner/tenant There was only one property that formed this relationship between the two i.e. the suit premises. The suit premises were amply described in the plaint as well as in the judgment & decree and also in the execution petition. There was no vagueness about the description of the suit property. Merely because the khasra number of the suit property was not correctly mentioned in the pleadings or the judgment & decree, cannot be a ground to stall the execution of the judgments and decrees passed in favour of the respondent/decree holder. 4. Observation I have heard learned counsel on both sides and considered the documents on record. In my considered view, no case for interference with the impugned order is called for. This is for the following reasons:- 4(i) The respondent/landlord had instituted the civil suit seeking ejectment of the petitioner/tenant. The suit property was described in the judgment and decree as “two storeys out of three storeyed building situated on land bearing Khasra No.220/212/5 in Village Shalaghat, Tehsil Kandaghat, District Solan, H.P.” In the civil suit, detail of creation of tenancy etc. was given. The respondent did not deny his tenancy of the premises under the petitioner. He took several defences available to him for opposing the suit. These defences were turned down by the learned Trial Court. The Judgment and decree was passed in favour of the plaintiff/respondent on 19.04.2021. This judgment & decree was upheld by the learned First Appellate Court in appeal preferred by the petitioner & by this Court in petitioner’s second appeal. 4(ii) There is no dispute between the parties that but for the ‘two storeys out of three storeyed building situated in Village Shalaghat, Tehsil Kandaghat, District Solan, H.P.’, there is no other property connecting the parties. There is no other property owned by the respondent & tenanted out to the petitioner. It seems that the respondent/plaintiff had mentioned khasra number of the suit property in dispute as 220/212/5. It is not in dispute that the petitioner/tenant had also preferred a civil suit against the respondent/plaintiff qua the suit premises. In that suit bearing Civil Suit No.37-K/1/13, which pertained to the same premises, khasra number was again mentioned as 220/212/5. It has now come out that the khasra number of the suit premises was incorrectly mentioned by the parties in their pleadings. In that suit bearing Civil Suit No.37-K/1/13, which pertained to the same premises, khasra number was again mentioned as 220/212/5. It has now come out that the khasra number of the suit premises was incorrectly mentioned by the parties in their pleadings. The khasra number actually is 212/202/5 as stated by learned counsel for the petitioner/judgment debtor. Because of the error in the number of khasra given in the pleadings, error crept up in the judgment and decree also. Be that as it may. The parties were and are very clear about the property involved in the civil suit and in the judgments and decrees. It has also been submitted that the property has been amply described as ‘two storeyes out of three storeyed building situated in land Khasra No. 220/212/5 situated in Shalaghat, Tehsil Kandaghat, District Solan, H.P. bounded as under: East of the building Building of Joginder Sharma West of the building Building of Ishwar Dutt. North of the building National Highway No.22. South of the building Vacant land of Sh. Jagdish etc.’ 4(iii) The objections taken by the petitioner/judgment debtor that the decree pertained only to Khasra No. 220/212/5 and it stands satisfied is not borne out from the record. Obviously khasra number is incorrectly mentioned in the pleadings by both the parties and consequently in the judgments and decrees as well. In any case, there is no satisfaction of the judgment and decree either in respect of Khasra No. 220/202/5 or Khasra No. 212/202/5. There cannot be any satisfaction of the judgment and decree in respect of Khasra No. 220/212/5 as alleged by the petitioner as this khasra number was not involved and was incorrectly mentioned in the pleadings of the parties in the civil suit as well as in the judgment and decree. 4(iv) The parties were very clear about the identity of the premises involved in the civil suit. There was no confusion at all in their mind. Relationship of landlord & tenant was admitted and the premises involved in the civil suit were the only property connecting the two parties. Petitioner/tenant contested the civil suit not only in the Trial Court but in the appellate forums as well for more than a decade with full comprehension of the actual identity of the suit premises. Relationship of landlord & tenant was admitted and the premises involved in the civil suit were the only property connecting the two parties. Petitioner/tenant contested the civil suit not only in the Trial Court but in the appellate forums as well for more than a decade with full comprehension of the actual identity of the suit premises. He himself understood the khasra number of the suit premises as 220/212/5, which though later turned out to be the incorrect number. Raising a dispute about incorrect description of khasra number of the suit premises at the stage of execution petition, in the peculiar facts & circumstances of the case cannot be allowed. At this stage, it will be appropriate to refer to (2003) 8 SCC 289 (Ravinder Kaur Vs. Ashok Kumar & Anr.), wherein respondents-tenants did not claim to be in possession of a shop other than shop regarding which they had suffered an eviction order. The Hon’ble Apex Court observed that it was not the case of the tenant that they were also in possession of some other property in regard to which there was no eviction order but the landlord was trying to take possession of the same in the execution proceedings. The Hon’ble Apex Court also took note of the fact that the tenants were not in possession of any other property other than shop in question leased out to them by the appellant. In such circumstances, it was held that a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of Court. Relevant portion of the judgment reads as under:- “11. All these facts apart, we notice that nowhere in the petition the respondents-tenants claim to be in possession of any shop other than Shop No. 3 in regard to which they have suffered an eviction order. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. We have specifically asked the learned counsel appearing for the respondents that apart from Shop No.3 belonging to the appellant - are the respondents in possession of any part of property bearing No. EK 172/2 situated at Chowk Panjeer, Jalandhar. The learned counsel was not able to give any satisfactory reply to our question which would only mean that the respondents are not in possession of any other property other than Shop No.3 leased out to them in the above-mentioned property belonging to the appellant. That is also why they prayed for restoration of possession. Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.” The ratio of above judgment squarely applies to the given facts of the case as well. Petitioner cannot be permitted to abuse process of law. 5. For all the forgoing reason, I do not find any error in the order dated 19.05.2023 passed by the learned Civil Judge Kandaghat, District Solan, H.P. in Execution Petition No.5/2021. Consequently, the petition being devoid of merit, is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.