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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 25 OF 2009 (Arising out of SLP(C) No. 22945 of 2007)

Abdul Rehman Shora (D)  by LRs. & Ors. …. Appellants

Versus

State of J & K & Anr.           …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

Leave granted.

2. Being  aggrieved  by  the  Order  passed  by  the  High  Court  in  its

Revisional Jurisdiction and issuing certain directions, appellants have come

up before this Court.  The appellants herein are the original plaintiffs and

the  legal  representatives  of  one  of  the  original  plaintiffs.   First  three

appellants  are the original  plaintiffs,  while  the other  three are the  legal

representatives of one Abdul Salam Shora, who was the original plaintiff

No.  2.   During  the  pendency  of  this  appeal,  appellant  No.  1  died  on

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28.11.2007.  Vide order dated 25.3.2008, his legal representatives were

brought on record.  They filed a suit for perpetual injunction against the

respondents/defendants, whose defence was that the appellants/plaintiffs

were encroaching upon the portion of  land,  which they alleged to  have

purchased and which is adjacent to the land in question.  The location,

identification and plaintiffs’ title and possession over the suit land was not

controverted  by  the  respondents/defendants  in  their  written  statement.

Two issues came to be framed and subsequently two additional issues also

came to be framed and ultimately, the suit  was decreed, after about 14

years of its  filing by the Court of Sub-Judge, Srinagar.   Admittedly, this

judgment  had  become  final,  since  no  appeal  was  filed  against  this

judgment.  However, since the respondents/defendants did not obey the

terms of the decree and did not allow the appellants/plaintiffs to fence the

land,  which  was  in  their  possession  and  which  was  identifiable  and

sufficiently delineated in the suit, Execution Application was filed in March,

1987 for issuing directions to the respondents/defendants to comply with

the terms of decree dated 18.10.1984.  An objection came to be raised by

the Judgment-Debtors before the Executing Court that the decree was un-

executable, since the identity of the land in respect of which the decree

was passed, was itself not established.  This objection was upheld by the

Executing  Court  by  its  order  dated  21.6.1988.   Against  this  order,  a

Revision Petition was filed by the appellants herein before the High Court

vide Revision No. 153 of 1988.  The Revision stood allowed by the High

Court by its judgment dated 25.8.1998, whereby, the order of the Executing

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Court was set aside and the Executing Court was directed to proceed with

the execution of the decree.  The High Court had observed in the judgment

that the Executing Court had not taken any steps to identify the suit land,

though the factors like extent and limits of the suit land were available.  The

extent of the suit land was 1 canal 12 marlas, which was clearly given in

Khewat and Khasra Numbers, while its location was given as Brari Nambal.

It was found that no attempt was made by the Executing Court to look out

for situational and other identifiable features and locale of the land even

from the suit file, Revenue records including ‘Aksilatha’.  Therefore, it was

recommended  that  a  Commissioner  should  be  appointed  for  local

investigation and if required, the oral evidence also could be taken.  The

High  Court  further  observed  that  even  the  site  plan  coupled  with  the

permission of Srinagar Municipality to raise the wall accorded to the decree

holders  for  fencing  or  walling  of  the  suit  land,  was  not  taken  into

consideration  and  it  appeared  that  the  Executing  Court  had  gone  by

whatever  had  been  raised  and  stated  by  the  Judgment-Debtors  alone,

without arriving at an independent decision regarding executability of the

decree,  in  totality  of  facts  and circumstances of  the case.   It  was also

observed by the High Court that a decree cannot be defeated by reason of

technical  or  hyper-technical  objection  and  those  unconnected  with  the

realities on the ground level.

3. After this decision, the respondents/defendants filed an Application-

cum-Reply/Statement, in which it  was stated that the appellants/plaintiffs

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had grabbed the land of the respondents/defendants and under the garb of

the  decree,  they  were  trying  to  grab  the  land  of  the

respondents/defendants, adjacent to the suit land, which land was required

to be protected by the Court.  It was, therefore, prayed that the Revenue

Authorities should be directed to demarcate the land, so that the decree-

holders  are  not  able  to  grab  the  land  belonging  to  the

respondents/defendants.

4. Much prior to this, Srinagar Municipality had granted permission to

the appellants/plaintiffs for fencing of the suit land, which was demarcable

and identifiable.

5. However,  on  this  application,  three  persons  were  appointed  as

Commissioners, two of them were from the Revenue Department and one

was from the Srinagar Municipality.  They visited the spot on 7.12.2004 in

presence of the parties, when the Deputy Director of Estates Department

was also present on the spot, and after detailed inspection, the decreetal

land measuring 1 canal 12 marlas was found to be in possession of the

decree  holders,  i.e.,  the  appellants.   The  decreetal  land  was  also

demarcated.  A site plan was prepared and the report was submitted to the

Court on 30.12.2004.

6. On receipt of this report, the Executing Court gave an opportunity to

the parties to file their objections to the abovesaid Report.  The counsel for

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the respondents/defendants appeared before the Court on 16.5.2005 and

he also had made a Statement that he was satisfied with the Report of the

Commissioners and he accepted the same as correct.  Thereafter, various

orders were passed by the Executing Court,  and the Court  went to the

extent  of  issuing  the  coercive  measures,  compelling  the

respondents/defendants to obey the decree.  The first such order dated

14.12.2005 was not even challenged by the respondents in time, while by

the  second passed order  dated 27.6.2006,  the Director  of  Estates  was

directed  to  file  an  undertaking  regarding  the  acknowledgement  of  the

decree  and  demarcation  of  land.   It  is  against  these  orders  dated

14.12.2005 and 27.6.2006 that a Revision Petition came to be filed before

the High Court,  wherein,  a totally  new case was set  up,  which had no

connection  with  the  execution  matter.   Very  significantly,  the

respondents/defendants  had  accepted  the  facts  regarding  the  previous

Revision Petition No. 153 of 1988 decided on 25.8.1998.  After filing of the

said Revision Petition, the respondents herein requested for placing certain

documents  on  record.   According  to  the  appellants/plaintiffs,  the

respondents/defendants tried  to  manipulate  the  record,  which could  not

have been considered in the Revision Petition by the High Court.   The

appellants/plaintiffs  filed  objections  to  the  respondents’  request  of

production of documents, in which it  was contended that the documents

can not be produced at the stage of Revision because by doing so, the

whole case was tried to be reopened, and there was an attempt on the part

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of the respondents/defendants to adduce fresh evidence, which too was

manipulated and manufactured.

7. However, it seems that the High Court allowed that Application by its

order dated 23.11.2006, even without hearing the appellants.  During that

time, no lawyer used to appear in the Court due to the strike call given by

the militants in the Valley of Kashmir.   The Court went on to allow this

application, and the appellants filed a detailed Application on 4.12.2006 for

recalling the order dated 23.11.2006.  Ultimately, it seems that the High

Court  passed the final  judgment  on 7.9.2007,  whereby, the  High  Court

gave a finding in the following words:

“Accordingly, and in view of what has been stated above, I feel that the decreetal land whatever and wherever it is, is yet to be duly  identified  and demarcated without  which the  execution proceedings  run  the  risk  of  being  misdirected.   So  before passing final orders hereupon, I feel it would be proper to seek suggestions of appearing sides regarding mode and method of identifying  the  decreetal  land,  so  that  the  decree  under reference is properly executed and without any further loss of time.”

The appellants, feeling aggrieved by this, have come up before us.   

8. The Learned Counsel appearing on behalf of the appellants pointed

out  that  there  was  no  question  of  passing  these  fresh  directions,

particularly, in the wake of finalized order in the earlier Civil Revision dated

25.8.1998.   Our  attention  was  invited  to  the  said  order  and  more

particularly,  the  observations  made  therein,  to  which  we  have  already

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made reference in the earlier part of the judgment.  Even at the cost of

repetition, we must note that the High Court has clearly observed therein

as follows:-

“What the Executing Court has exactly failed to do is that it has not taken any steps to identify the suit land.  The extent and limits of the suit land despite available evidence on record has not been determined.  This aspect has not been considered. The extent of suit land (1 canal 12 marlas) is clearly given with Khewat No. and Khasra No.  The location of the land is given as Brari Nambal.  No attempt has been made by the Executing Court to look out for situational and other identifiable features and locale of the land even from the suit file, revenue records including  ‘Aksilatha’  and  may  be  through  appointment  of Commissioner  for  local  investigation  and if  required,  on  an enquiry where oral evidence could have been taken.  Even the site plan coupled with permission of Srinagar Municipality to raise  the  wall  accorded  to  the  decree  holders  for fencing/walling  of  the  suit  land  has  not  been  taken  into consideration.  It appears that the Executing Court has gone by whatever has been raised and stated by the respondent- judgment Debtors, without arriving at an independent decision regarding the executability of the decree in the totality of facts and circumstances of the case.  The Executing Court appears to  have been in  a  hurry to  rush  to  the  conclusion  that  the decree is un-executable for the ambiguity and vagueness as sighted by the Executing Court.”

The learned counsel pointed out that by these observations, the High Court

had  finally  held  that  the  land  had  been  finally  identified  and  that  the

Executing Court was duty bound to execute the decree in respect of such

identified land, which was clear from the Khewat and Khasra Numbers, as

also the permission granted by Srinagar Municipality to the appellants to

build a wall.  Our attention then was invited to the Commissioners’ Report,

wherein,  as  many  as  two  officers  of  the  respondents’/defendants’

department  were  present,  as  also  the  Deputy  Director  of  Estates

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Department.  It was pointed out that the Commissioners’ Report had finally

clinched the issue by locating the said land.  Our attention was invited even

to the sketch map drawn by the Commissioners.  It was then pointed out by

the learned counsel that the order dated 27.6.2006 read with order dated

14.12.2005, passed by the Executing Court, which was impugned before

the High Court  in  the Revision,  was clear  enough, inasmuch as,  in  the

order dated 14.12.2005, it was clearly mentioned that:-

“To cope up with the problem, this Court has also vide its order dated  10.7.2004  read  with  the  order  dated  16.8.2004  & 15.9.2004  got  the  decreetal  land  demarcated  on  7.12.2004 through a commission for local inspection.

The  Commission  has  already  submitted  its  report  on 31.12.20004, which is on the file.  The commission in its report has submitted that the demarcation of the decreetal land was conducted  on  spot  in  presence  of  both  the  parties  on 7.12.2004.  It has been reported that Deputy Director, Estates (Mr.  Farooq  Ahmad  Lone)  was  present  on  behalf  of  the judgment debtors.  It  has been unambiguously reported that the decree holder were found the recorded owners, as well as in  the physical  possession of  the decreetal  land which was demarcated.

It  is  most  pertinent  to  mention  that  the  Ld.  Standing Counsel for judgment debtors on 16.5.2005 had admitted in the open court that he admits the report  of the commission and has no objection vis-à-vis the same.  

But, despite the demarcation of the decreetal land, the judgment debtors are persisting in their attempt of interference with the decreetal land by objections on spot the construction of the fencing wall by the decree holder around the decreetal land.”

It  was  also  found  in  that  order  that  in  spite  of  the  demarcation  of  the

decreetal land, the Judgment-Debtors were persisting  in their attempt of

interference  with  the  decreetal  land  by  objecting  to  the  construction  of

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fencing  wall.   In  that  order,  the  Executing  Court  has  very  specifically

observed that the objections of the Judgment-Debtors were already stood

rejected by the High Court in its order dated 25.8.1998.  Ultimately, the

Court went up to the extent of observing:-

“As  such,  the  judgment  debtor  Director  Estates,  Srinagar against whom the decree is sought to be executed is liable to be committed to civil prison for compelling him to implement the decree. The office is directed to issue bailable warrant of arrest  in  the  amount  of  rupees  thirty  thousand  for  his appearance in person before this Court on 18.1.2006, which shall be entrusted to the S.S.P., Jammu for execution.  The warrant shall be accompanied with a copy of this order put up on 18.1.2006.”

On the heels of this order came the order dated 27.6.2006, wherein, the

Executing Court noted that the Judgment-Debtor was not satisfied with the

demarcation, which was already conducted in the case during execution

process.   It  seems that  on that  day,  the Judgment-Debtor  was present

before  the  Executing  Court,  which  had  issued  a  non-bailable  warrant

against him.  The Court, then went on to observe that the conduct of the

Judgment-Debtors  was  contemptuous.   The  Court  also  noted  that  the

execution was pending disposal  right  from 4.3.1987 and that  made it  a

rarest of the rare case.  It seems that these two orders were composedly

challenged before the High Court in the Revision.  The learned counsel,

appearing on behalf of the respondents tried to feebly support the order of

the High Court.  However, one look at the High Court suggests that the

High Court has gone on to reopen the whole process.  It has undoubtedly,

made  a  reference  to  some  documents  and  on  the  basis  of  those

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documents,  the Court  seems to  have observed in  para 5 that  the land

under  reference was sold  by  one Mehraj-ud-din  S/o  Assad  Shah and

Ghulam Nabi  S/o Ghulam Shah to one Khazir  Mohammad S/o Subhan

Parey, who sold the same to Government in January, 1969.  The Court

further observed that the sale of land by aforesaid persons is shown to

have  been  effected  sometime  prior  to  December,  1968,  when  the

concerned Patwari had entered the mutation regarding it, while the other

part of the land comprising of Survey No. 1659/1667 measuring 6 marlas is

shown to have been mutated in favour of Government on 2.1.1960.  A very

curious observation is made thereafter, by the High Court as under:-

“At the same time, however, as per copy of the judgment, the decree holders had before the trial Court in their plaint claimed ownership  of  the  land  under  reference  under  a  sale  deed purported to have been executed in their  favour by Ghulam Nabi Shah S/o Ghulam Ali Shah reportedly executed on 12th and registered on 28th March, 1968.  Accordingly, the root of the  controversy  appears  to  be  lying  somewhere  here.   If Ghulam Nabi Shah aforesaid who is shown as son of Ghulam Ali Shah and Ghulam Shah in photocopy of mutation No. 1004 above mentioned had sold the land to Khazir Mohammad S/o Subhan Parrey aforesaid before it is sold to decree holders in March, 1968 then obviously their claim would be defective.”

We do not know, as to how, such observations could be made regarding

the appellants’/plaintiffs’ title, particularly, in view of the decree which had

finally been passed.  This seems to be the main reason why the High Court

has interfered in  the matter.   Even the observations made by the High

Court in para 6 of the impugned judgment regarding the Commissioners’

Report, could not have been made, particularly, because the counsel for

the  respondents/defendants  unequivocally  had  accepted  the

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Commissioners’ Report, which is clear from the earlier orders passed by

Executing Court on 27.6.2006 and referred to earlier.  In short, the High

Court in its Revisionary jurisdiction has tried to go behind the decree, which

is not permissible.  The High Court has also returned a finding of fact in

para 8 that the decreetal land was yet to be duly identified and demarcated

and, thereafter,  the High Court has chosen to open a Pandora’s box by

inviting the suggestions from both the sides for identifying the decreetal

land, which had already been identified by the Commissioners’ report.

9. In short, the High Court has exceeded its jurisdiction in the matter

and has chosen to  allow itself  to  be swept  away by some documents,

which  though  available  to  the  respondents/defendants,  were  never

bothered to be filed either  while the Civil  Suit  was in progress or  even

during the execution.  We do not know how and under what provision, the

said documents came to be produced at the Revisional stage, even without

hearing  the  appellants/plaintiffs,  who  were  parties  to  that  Revision.   In

short,  the  impugned  order  is  clearly  erroneous  and  suffers  from  the

jurisdictional error and the same is, therefore, set aside.  The appellants

shall  be entitled to proceed on the basis of the Commissioners’ Report,

while  the  respondents/defendants  would  be  bound  by  the  subsequent

orders dated 14.12.20005 and 27.6.2006 passed by the Executing Court.

Under the circumstances, the appeal is allowed with costs.

………………………………..J.

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(Markandey Katju)

………………………………..J. (V.S. Sirpurkar)

New Delhi;

January 7, 2009

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