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CASE NO.: Appeal (civil)  920 of 2007

PETITIONER: Khazan Singh (D) By LRs

RESPONDENT: Gurbhajan Singh & Ors

DATE OF JUDGMENT: 23/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  [Arising out of SLP (C) No. 1636 of 2006]

S.B. SINHA, J :

       Leave granted.  

       Interpretation of a decree passed as far back on 14.01.1953 falls for  consideration in this appeal which arises out of a judgment and decree dated  21.10.2005 passed by the High Court of Punjab and Haryana in Civil  Revision No. 1186 of 1984 whereby and whereunder the order dated  30.01.1984 passed by the Additional District Judge, Patiala was set aside.

       The subject matter of the suit filed by one Sampuran Singh was in  respect of 2 bighas 17 biswas in Khasra No. 2057 to 2059.  A decree for  recovery of possession was passed.  The present dispute revolves round the  question as to whether actual possession in execution of the said decree was  granted or not.

       The contention of the decree holders had been that actual delivery of  possession was confined only to 10 biswas only in the execution proceeding  and only symbolic possession of 2 bighas 7 biswas on 5.03.1954 was given,  and, thus, the actual possession thereof remained with the judgment debtors  \026 appellants.  A fresh suit for possession was filed in respect of the said  lands which although was dismissed by the learned Trial Judge but a decree  for 10 biswas was passed by the learned District Judge on 16.01.1960.  It  was held that the subsequent suit was not maintainable stating:

"It would, thus, appear that the plaintiff had not  taken possession of the land measuring 2 bighas  and 7 biswas in accordance with law under the  previous decree and the subsequent suit is,  therefore, not competent in accordance with the  observations in Sasi Sakharewar Ray Vs. Lalit  Mohan Maitra (AIR 1925 Privy Council 34) as  held therein that it was on executable decree and  precluded a fresh suit for the possession of the  properties concerned by one of the parties.   Consequently, the subsequent suit is not  competent."

       The decree holder in execution of the decree dated 14.01.1953 prayed  for delivery of possession of the said lands.  The court passed the following  order on 25.01.1963:

"The warrant of possession has been received  back.  It has been reported that the site plan was

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not attached with the warrant of possession but this  appears to be incorrect.  The D.H. is hereby  directed to file a fresh site plan of the disputed  property excluding the portion of 10 Biswas which  may be clearly shown in the site plan that may be  got filed and this 10 Biswas is out of land bearing  khasra no. 2059 and the Patwari while giving  possession according to the decree should ascertain  that possession is given to the Decree Holder of  the land etc. excluding the 10 Biswas of land.  This  10 Biswas of land has been shown in the site plan  today filed by the J.D. and has been marked A, B,  C & D.  The Patwari should ascertain whether this  plot of land is out of Khasra no. 2059 or not?   Warrant of possession be issued on payment of  process fee etc.  Now case to come up on 15.2.63.   It should also be mentioned that possession of  portion marked E, F, G, H be also not given to the  D. Holder.  Warrant of possession be given dasti  also."

       In terms of the said order, warrant of possession was issued wherein it  was directed:

"In respect of possession of land as per site plan  attached in the above noted suit by fixing the peshi  6.7.63, you are hereby ordered that the possession  of the land bearing khasra numbers except mark A,  B, C, D & E, F, G, H be delivered to the decree  holder along with the standing crops which are  duly shown marked as red in colour with police  force and in this respect the report be submitted.   For the sanction of help of the police force, the  proceedings have been started."

       Delivery of possession pursuant to the said warrant of possession was  given upon publication of notice by beat of drums on or about 29.06.1963.

       Thereafter, the decree holders \026 respondents applied for mutation of  their names which was said to have been granted.  Entire khasras were  recorded in the names of the decree \026 holders.  Allegedly, the decree holders  had also transferred the lands in question to outsiders and the vendees are in  possession of their own purchased lands.

       The question which arose in the second execution case was as to  whether a portion of the property delineated with the words ’EFGH’ in the  plan formed part of the decretal property or not.  The matter came up to the  High Court in Execution Second Appeal No. 718 of 1967.  On an application  filed under Section 151 of the Code of Civil Procedure, by an order dated  31.07.1967, Grover, J. while issuing a notice of early date of hearing  directed that the judgment debtors should not be dispossessed from the  portion marked ’EFGH’ in the plan.

       The said Execution Second Appeal was disposed of by Tuli, J. on 13th  January, 1971.  In the said appeal, correctness of the finding recorded in  paragraph 8 of the order of the appellate court was questioned on the ground  that the decree holder was not entitled to possession of land shown in  ’EFGH’ of plan as the ’Kothas’ of the judgment debtors were situate therein.   In the said Appeal, observations of Mahajan, J. in his order dated 13.10.1965  were noticed in the following terms:

"In the present execution application, claim is  made to some kothas on the ground that they are  situate in the land in dispute.  According to the  judgment \026 debtor, this claim is made to the kothas

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which were the subject matter of the earlier suit.  It  cannot be disputed that the decree-holder is  entitled to the possession of 2 bighas 7 biswas  under the decree dated 14th January, 1953 and 10  biswas under the decree dated 16th January, 1960.   I have already dealt with the total measuring 10  biswas in Execution Second Appeal No. 760 of  1964 today.  Possession of this land has been taken  by the decree holder.  It is not clear whether the  possession of land measuring 2 bighas 7 biswas  subject matter of the decree dated the 14th January,  1953 has been taken possession of or not.  If there  is any kotha in the total land of which the decree  holder is entitled, namely, 2 bighas 17 biswas, the  decree holder will be entitled to any kothas,  outside this land."

       On the basis thereof, it was opined:

"The learned counsel for the decree-holder  respondent states that in accordance with the  observations made by Mahajan J. he will only  obtain the possession of 2 bighas 7 biswas of land  under the decree dated January 14, 1953 and of the  kothas, situate on that land.  There can be no  dispute with regard to this position of the learned  counsel but the Executing Court, while giving  possession of that land to the decree holder  respondent, will keep out the kothas which were  the subject matter of the suit which was decided in  appeal by Shri H.S. Bhandari, District Judge, by  his decree dated January 16, 1960.  The possession  of those Kothas will not be delivered to the  respondents in any case as it has already been held  that they are not situate on the land which forms  the subject matter of the suit which had been  decreed in favour of the decree \026 holder on  January 14, 1953 Mahajan J. also made it clear that  the decree holder will not be entitled to any kothas  outside this land.  As it has already been  determined by a competent court that the kothas to  which the judgment debtors are laying claim as  having been rebuilt are not situated on the land  measuring 2 bighas 7 biswas which formed the  subject matter of the suit decreed in January 14,  1953, it will not be open to the Executing Court to  deliver possession of those kothas to the decree \026  holder while giving him possession of the land  which forms the subject matter of the suit decreed  on January 14, 1953, the execution of which is  being sought.

       The appeal is accordingly accepted in part as  observed above.  The parties are left to bear their  own costs."

       However, a second execution case was filed including the ’kothas’  which were, as noticed hereinbefore, delineated with in the area marked with  the words ’EFGH’ in the plan.  An objection to the said execution  application was filed by the appellants on 10.06.1971.  The Executing Court  framed the following issues:

"1. Whether the decree dt. 14.1.53 and decree dt.  16.1.60 have been fully satisfied?

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2. Whether the objection petition is not  maintainable? 3. Whether the decree holder is estopped by his act  and conduct to seek possession of the land after  29.6.63?"

       The decree holders moved an application for issuance of warrants of  possession on 23.06.1971 in the aforesaid execution petition.  The Executing  Court opined that the possession of the portion of the decretal property  marked as ’ABCD’ had already been given to the decree holders.  By an  order dated 30.01.1984, it was held:

"12. Now the sole question is as to whether kothas  shown at EFGH are included in the decreed  property or not.  In that behalf the order of the  Hon’ble High Court Ex. 013 would clearly show  that these kothas are outside the scope of the  decree.  The concluding words of His Lordship  Mr. Justice Balraj Tuli are that it will not be open  to the executing court to deliver possession of  those kothas while giving him possession of the  land which is the subject matter of the suit decreed  on 14.1.53, the execution of which is being sought.   The kothas have been found to be situated at  portion marked EFGH.  This portion was excluded  by the executing court by the warrant of possession  in the presence of both the parties.  The line  depicted EFGH was drawn by the court with the  consent of the decree holders even.  That being the  case no claim regarding EFGH can be made by the  decree holders now.

13. The learned counsel for decree holders states  that his decreed land measuring 2 B 17 biswas has  not been made good and some portion of land still  remains to be delivered to him.  That contention is  belied by looking to the Jamabandi of 1981-82  which is to the effect that 2 B 17 biswas of land in  khasra No. 2057 to 2059 is in possession of the  decree holders.  In view of these reasons and  consideration, I would hold that both the decrees  have been fully satisfied on 29.6.63 when the  report of delivery of possession has been made to  the court.  Therefore, these issues are decided in  favour of the objectors."

       The revision petition filed thereagainst by the decree holders \026  respondents have been allowed by reason of the impugned judgment.

       Mr. P.N. Mishra, learned senior counsel appearing on behalf of the  appellants, would submit that in view of the clear finding of fact arrived at  by the executing court, there cannot be any doubt whatsoever that the decree  passed in favour of the decree holders was satisfied and as such the fresh  execution petition was not maintainable.

       Mr. Pradeep Gupta, learned counsel appearing on behalf of the  respondents, on the other hand, would contend that the High Court by reason  of the impugned judgment took into consideration the entire aspect of the  matter and having come to the conclusion that the ’kothas’ form part of the  decretal land, and the actual delivery of possession having not been granted  in relation thereto, a fresh execution petition was maintainable.

       It is not in dispute that the subject matter of the dispute is ’kothas’.   Judgment Debtor had all along taken the stand that the ’kothas’ are outside  the decretal land.  Even if they had not raised the contention that the decree

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stood satisfied, it was for the Executing Court to arrive at the said decision.     Appellants are admittedly in possession of the ’kothas’ in question.  In the  first execution case, therefore, the decree holders were required to file  application not only for actual delivery of possession of agricultural lands as  also non-agricultural lands as directed in terms of warrant of delivery of  possession but also for the said ’kothas’.  The warrant of delivery of  possession issued by the executing court has been noticed by us  hereinbefore.  No direction therein was issued while directing the authorities  to render all assistance to the bailiff of the court to evict the judgment  debtors from the ’kothas’.  It is expected that such a direction would be  given by the Executing Court while issuing warrant of delivery of  possession.  

       We may also notice the report of Assistant Collector, Patiala dated  29.06.1963 which reads as under:

"It is requested that as per order, I reached the spot  today, the land as per site plan attached which was  found vacant at the spot, that land after getting it  ploughed by the D.H. and the land in which the  crops are standing, by getting its round of the D.H.  around four sides of that land in satisfaction of the  D.H. as per order, the possession of the D.H. with  police force under the supervision of Sh. Surjit  Singh ASI Incharge Division no. 2 Patiala in  presence of Halqa Patwari and the below noted  witnesses, was delivered.  At the spot only 5  Biswas of land was found vacant, in the remaining  land there are crops of tomato, chilies, lobia and  torian.  Regarding the delivery of possession its  Munadi was made in the adjoining land.  The  Patwari Halqa was directed that the report of this  proceeding be made in the Roznamcha.  There is a  well in this land also on which the machinery for  pulling water (Halt) is also fitted.  Accordingly, the  report is submitted after compliance. Dated  29.6.1963"

       It was not stated therein that only symbolic possession was delivered.   Decree Holder accepted that delivery of possession had been given.

       We have noticed hereinbefore that delivery of possession of the  ’kothas’ delineated in the plan and marked with the letters ’EFGH’ was a  contentious issue in the Execution Second Appeal as also in Civil Revision  filed before the High Court.  It had categorically been held that the ’kothas’  did not form part of the decree and, thus, the possession thereof cannot be  delivered.  It has also been found by the learned Subordinate Judge in the  suit that as actual delivery of possession having been effected, the suit was  not maintainable.

       Appreciation of evidence on the basis of the materials brought on  record by the parties was within the domain of the Executing Court.  By  reason of the Code of Civil Procedure (Amendment) Act, 1976, an appeal  thereagainst does not lie.  Revisional jurisdiction of the High Court, thus,  could be exercised only on limited grounds.

       The High Court, therefore, in our opinion, was, thus, not correct in  interfering with the said findings of fact.  It was exercising its revisional  jurisdiction.  It had not found that the Executing Court committed any  illegality or material irregularity in passing the order impugned before it.  It  proceeded on a presumption that merely symbolic possession had been  delivered.  The contentions raised in this behalf by the respondents were not  borne out of records.  

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       There cannot be any doubt whatsoever that if the ’kothas’ formed part  of the decretal land, the decree holder was entitled to possession thereof but  the question was whether the kothas in question were part of the decretal  land or not.  The High Court had referred to an order dated 13.10.1965  passed in civil revision No. 470 of 1964 wherein it was held:

"In the present execution application, claim is  made to some kothas on the ground that they are  situated in the land in dispute.  According to the  judgment debtor, this claim is made to the kothas  which were the subject matter of the earlier suit.  It  cannot be disputed that the decree holder is entitled  to the possession of 2 Bighas 17 Biswas, 2 Bighas  7 Biswas under the decree dated 14th January, 1953  and 10 Biswas under the decree dated 16th January,  1960.  I have already dealt with the land measuring  10 Biswas in Execution Second Appeal No. 60 of  1964.  Possession of this land has been taken by  the decree holder.  It is not clear whether the  possession of land measuring 2 Bighas 7 Biswas  subject-matter of the decree dated the 14th January,  1953 has been taken possession of or not.  If there  is any Kotha in the total land of which the decree  holder is entitled, namely, 2 Bighas 17 Biswas, the  decree holder will be entitled to that; but decree  holder will not be entitled to any Kotha outside  this land."

       The question was not as to whether the principles of res judicata  would be applicable but the question which was required to be posed and  answered was as to whether the kothas marked ’EFGH’ formed part of the  decretal land or not.  It, having regard to the orders passed in the earlier  proceedings, cannot be said that the Executing Court acted illegally or  without jurisdiction in arriving at the conclusion, it did.

       The finding of the Executing Court essentially was a finding of fact.   The High Court has not assigned sufficient or cogent reasons to conclude  that the finding of the executing court in that behalf was factually incorrect.   Revisional jurisdiction as is well-known is very limited.  The High Court, in  our opinion, in the facts and circumstances of the case, exceeded its  jurisdiction in passing the impugned judgment.

       The High Court referred to an order dated 13.10.1965 but the effect  thereof, as noticed hereinbefore, has not been considered in its true  perspective.  

       We may now deal with the application for impleadment as also  application for substitution filed by the applicant and the appellant  respectively.

       Gurbachan Singh, Respondent No. 4 herein died on 19.11.1999.  In  terms of the Punjab and Haryana High Court Amendment to Order 22, Rule  3 of the Code of Civil Procedure, the appeal shall not abate.  A statement  was made before the Registrar on behalf of the appellant that the name of  Respondent No. 4 be deleted.  An order was passed to that effect on  19.09.2006.  An application for impleadment has been filed by the legal  representatives of Gurbachan Singh, Respondent No. 4.  An affidavit has  also been filed for revocation of the said order dated 19.09.2006.  The  relationship between the applicants and the deceased \026 Respondent No. 4 is  seriously denied and disputed.  The Executing Court had also in its order  dated 5.06.2006 concluded:

"The best course to be adopted by the L.Rs of  Decree-Holder Gurbachan Singh, Gurmukh Singh  applicant and the JD/ Objector is to raise the

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alleged objection by seeking declaration from the  court by filing a separate suit or to obtain the  succession certificate."

       This Court at this stage does not intend to determine the said question  particularly in view of the statement of the respondents and in particular for  the reason that it is not necessary for the purpose of disposal of this appeal.   These applications for impleadment as also for substitution, therefore, are  rejected.

       We, for the reasons stated hereinbefore, are of the opinion that the  impugned judgment cannot be sustained which is set aside accordingly.  The  appeal is allowed.  No costs.