Punjab-Haryana High Court
Smt. Ajit Kaur vs Mandir Jhok Hari Har And Ors. on 14 October, 1988
Equivalent citations: AIR1989P&H194, AIR 1989 PUNJAB AND HARYANA 194, (1989) 1 CURLJ(CCR) 65 (1988) 94 PUN LR 636, (1988) 94 PUN LR 636
ORDER G.R. Majithia, J.
1. This revision petition is directed against the order of the executing court whereby the objections filed under Section 47 of the Code of Civil Procedure by the judgment-debtor objectors were accepted and it was held that symbolic possession was delivered to the decree-holder in full satisfaction of the decree passed in her favour.
2. The undisputed facts are that the petitioner along with another filed a suit for possession of the disputed land on the ground that they were tenants at will paying yearly rent of Rs. 834/- and were entitled to remain as such (as tenant at will) until ejected in due course of law in accordance with the provisions of the Punjab Security of Land Tenures Act. It was pleaded that defendants Nos. 1, 2 and 3 conspired together and took illegal possession of the land during the absence of the plaintiffs. The suit was decreed by the learned Subordinate Judge and the judgment was affirmed in appeal by the learned first Appellate Court. On second appeal by the defendants, this Court had heldthat the plaintiff and defendant No. 6 in the suit were entitled to be restored the possession of the disputed land and the decree of the courts below in so far it directed restoration of the possession to the plaintiff and defendant No. 6 was maintained unless they were evicted in due course of law. The judgment of this Court is reported as Mandir Jhoke Hari Har v. Smt. Ajit Kaur, 1977 Pun LJ 315.
3. The plaintiffs, who are petitioners, levied execution of the decree ultimately affirmed by this Court. Warrants of possession were issued and from the copy of the report, roznamcha exhibit O1, it is revealed that symbolic possession of the land was delivered to the decree-holder as the land was under crops and gairmumkin. The execution application was dismissed in default on February 17, 1978 and the file was consigned to the record-room presumably after the receipt of warrants of possession. The decree-holder moved a second execution application on March 1, 1978. The learned executing Court issued notice to the judgment-debtors and they filed objections purporting to be under S. 47 of the Code of Civil Procedure. It was pleaded by them that the decree-holder was delivered symbolic possession with her consent and she appended her signature on the roznamcha vakiyati dated October, 13, 1977 and the first execution application was dismissed on February 17, 1978. Since the decree-holder has been delivered symbolic possession as agreed to by her in execution of the decree passed in her favour, she is not entitled to file second execution application. The learned executing court framed the following issues : --
1. Whether the symbolic possession of the suit land was delivered to the decree-holder with her consent as alleged in the objection petition. If so, its effect? OPJD.
2. Relief.
4. Under issue No. 1, the learned executing court found that the decree-holder was delivered symbolic possession only. Since the previous execution application was dismissed for default of the decree-holder, he drew an inference that the decree-holder was satisfied with the delivery of symbolic possession. Aggrieved against this judgment, the decree-holder has come up in revision.
5. The entire approach of the learned executing court is erroneous. He committed a patent illegality by refusing to entertain the second execution application on the ground that previous execution application having been dismissed in default and it was allowed to be so done because the decree-holder was satisfied with the symbolic possession. The conclusion is not warranted by any logic, evidence, or law for the following reasons; (a) there is not an iota of evidence that the decree-holder consented to obtain symbolic possession in lieu of actual physical possession; (b) it passes human comprehension that the decree-holder who fought the legal battle for more than a decade and succeeded in getting a decree for possession from the highest Court in the State will be satisfied with symbolic possession only; (c) the inference drawn by the executing court is irreducible. Non appearance of the decree-holder on the date fixed in the executing court cannot lead to a conclusion that she was satisfied with symbolic possession only. To the contrary, she may be aware that the second execution application has to be filed for obtaining actual physical possession since the land at the time of delivery of symbolic possession was under crops and actual possession cannot be delivered till the crop is cut or compensation as assessed for the standing crop was deposited in the court. The consent for taking symbolic possession in lieu of actual physical possession, if any, has to be given in the executing court; (d) the manner in which the file containing warrants of possession was misplaced speaks for itself. It appears that every effort was afoot to deprive the decree-holder of the fruits of the decree; (e) it is unbelievable that what was got by the decree-holder after fighting a tough legal battle for a decade will be offered to the judgment-debtors in a plate; and (f) in view of what is being propounded in these proceedings, there was no difficulty for the judgment-debtor to request the executing court to record the statement of the decree-holder that she is satisfied with the symbolic possession alone.
6. In the instant case, the original warrants of possession issued by the executing court could not be produced as the file containing the warrants of possession was not traceable. The report roznamcha is the only document which reveals that only symbolic possession was delivered, may or may not be with the consent of the decree-holder. Even if the symbolic possession was given with her consent, it will not amount to the satisfaction of the decree. In this view of the matter. I hold that there was no bar to the maintainability of the second execution application. The learned executing court has refused the prayer relying upon a judgment given by this Court reported as Niranjan Singh v. Rameshwar Singh, 1977 Pun LJ 267. The brief facts of that case may be noted. The plaintiff filed a suit for possession of agricultural land. The suit was decreed and symbolic possession was delivered. In the meantime, consolidation proceedings took place in the village. The decree-holder got symbolic possession of the pre-consolidation field numbers and filed a suit for possession of post-consolidation field numbers on the strength of the decree passed in his favour. The suit was decreed by the learned trial court but on appeal the decree was reversed and it was held that Section 47 of the Code of Civil Procedure barred the maintainability of the second suit. In second appeal, this Court held that Section 47 of the Code of Civil Procedure did not bar the maintainability of the second suit and reversed the decree of the first Appellate Court and restored that of the trial court whereby the suit of the decree-holder was decreed for possession of the land which was allotted during consolidation. This case on facts is wholly distinguishable and has got no relevancy to the point in controversy in the present case. This Court only held that Section 47 of the Code does not bar the maintainability of the second suit. In this judgment there was no occasion for this Court to dilate on the question whether the second execution application was maintainable or not when in the first execution application only symbolic possession was delivered when the decree was for actual physical possession. This question directly arose for consideration in the judgment reported as Daljit Singh. v. Nand Ram 1967 Cur LJ 712, Relying upon a Supreme Court decision reported as Shew Bux Mohata v. Bengal Breweries Ltd. AIR 1961 SC 137, this Court held as under :-
"It is undisputed that if a decree is granted for possession of the land the same cannot be said to be have been fully satisfied, if the decree-holder is only granted symbolical possession of that land, unless of course at the time of the delivery of symbolical possession the decree-holder, expressly or even impliedly consents to the delivery of symbolical possession in full satisfaction of the decree."
7. The ratio of this case is fully attracted to the facts of the instant case.
8. Apart from this, there is positive evidence on the record that only symbolic possession was given for the reasons that the land was under crops. J.W.D.I and J.W.D.2, Kanungo and Patwari respectively, in unequivocal terms stated on oath that at the spot only symbolic possession was given and actual physical possession could not be delivered since the land was under crops. In the light of what has been found in the case and not disputed by the respondents that actual delivery of possession was not obtained by the decree-holder in the previous execution application, I see no justification in holding that the decree-holder should be deprived of her right to come before the executing court and pray for a fresh delivery of possession when there is no bar to her right of executing the decree.
9. In Abdul Hamid v. Prokash Chandra Nandi, AIR 1934 Cal 793, it was held that the decree-holder was entitled to levy a fresh execution of the decree even though he had not obtained actual delivery of possession earlier. It was held thus : --
"Where, after delivery of possession made in execution of a final decree for partition a party could not get actual possession of his share, the Court should order for fresh delivery of possession."
10. In Abdul Hemid's case (supra) in execution of a final decree for partition, delivery of possession was given, but it was, proved that the decree-holder did not get atual possession of his share, as some huts belonging to other co-sharers were standing thereon. The Court, therefore, ordered fresh execution and- held that it was within the jurisdiction of the executing Court to order for a fresh delivery of possession by removing the huts in question. This judgment was followed in Ghanashyam Das Mour Agarwalla v. Fatik Chandra Das, AIR 1957 Assam, 123, wherein it was held as under : --
"there was no effective delivery of possession obtained by the decree-holder in the previous execution case of the entire property, as the decree provided. In the circumstances of this case, there was nothing to show that the decree-holder should be debarred from the remedy by way of execution, and should be necessarily driven to a separate suit for the purpose of obtaining possession of the property to which, under the decree, he was entitled. If the fact was that actual delivery of possession was not obtained by the decree-holder in the previous execution case there was no justification for holding that the decree-holder be deprived of his right to come before the executing Court and pray for a fresh delivery of possession, when there was no other bar to his right of executing the decree."
11. In my opinion, the principle of that decision will equally apply to this Case.
12. Before I conclude, I must deal with the submission of the learned counsel for the respondents. He submitted that the decree-holder agreed to accept symbolic possession in the execution proceedings in lieu of actual physical possession and the execution application was consigned to the record-room for non-appearance of the decree-holder. Resultantly, the second execution application was not maintainable and the remedy, if any, lay by bringing a second suit for possession. In support of his submission, he relied upon the following authorities. Jaimal Singh Dasaundha Singh v. Rakha Singh, AIR 1957 Punjab, 17; Radhalal v. Chabil Chand, AIR 1955 Nagpur 79; Triveni Bai v. Swaroopchand, AIR 1974 Raj 232; Bhure Khan v. Hansa, 1976 Pun LJ 615; Mst. Mema v. Amar Singh, AIR 1959 Punjab. 515; Rama Subudhi v. Bhagirathi, AIR 1982 Orissa, 86. The submission is untenable in view of what has been stated supra. The decree-holder never gave consent that she may be given symbolic possession in lieu of actual physical possession. The rulings referred to by the learned counsel are inapplicable to the facts of the instant case. In most of these cases, decree-holder appeared and filed a receipt acknowledging the possession of the land and on the strength of this acknowledgement the execution application was consigned to the record as having been fully satisfied. No such situation has arisen in the instant case.
13. For the reasons stated supra, this revision petition is accepted. The District Judge, Ferozepur, is directed to withdraw the execution of file from the successor Court of Shri Udey Singh Gera, Sub Judge, II Class, Forezepur, and entrust it to the Senior Subordinate judge, Ferozepur, and I hope the learned Senior Subordinate Judge will expedite the execution of the decree without any further delay. In the circumstances of this case, I leave the parties to bear their own costs.