Punjab-Haryana High Court
Amarkuldip Singh And Anr. vs Baru Ram And Ors. on 4 June, 1993
Equivalent citations: (1993)104PLR443
JUDGMENT R.K. Nehru, J.
1. This revision petition is directed against the order of the Subordinate Judge I Class, Ludhiana. dated November 10 1989, directing the issuance of warrants of possession alongwith the Jamabandi to Assistant Collector I Grade with a direction to comply with the decree, and the order dated January 24, 1992, ordering issuance of warrants of possession of the land bearing Khasra No. 491, 492 and 493. executable through Tehsildar, Ludhiana.
2. Undisputably, the petitioner-plaintiffs (hereinafter the plaintiffs) filed a suit for possession of land measuring 9 Bighas 11 Biswas comprised in Khewat No. 344, Khatauni No. 552, Khasra Nos. 491, 492 and 493, situate in village Malaud Rorian, tehsil and district Ludhiana, after demolishing the structures illegally raised by Dhani Ram, defendant No. 1 (since deceased), who is represented by his legal representatives, viz respondents Nos. 1, 2 and 15 in this petition. The suit was dismissed by the trial Judge vide judgment and decree dated March' 15, 1969 The plaintiffs successfully assailed the judgment and decree of the trial Judge before the first appellate Court. A perusal of para 10 of the judgment dated April 27, 1970, rendered by the first appellate Court, reveals that on the disputed land there is a 'Mandir' (temple) and the remaining land adjoins the same The judgment and decree of the first appellate Court was challenged by the defendants in R.S. A. No. 1138 of 1970 and the same was dismissed by a learned Single Judge of this Court vide judgment and decree dated October 29, 1981. a perusal of the judgment of the leaned Single Judge reveals that the predecessor-in interest of respondents No. 1,2 and 15 had claimed ownership over the disputed land. His plea was negatived by observing thus : --
"After hearing the learned counsel for the parties, I find that no ground has been made out by the learned counsel for the appellant for the framing of the issues, as prayed for by him and to remand the case for the trial of those issues, It would be pertinent to observe that in the written statement, nowhere a plea which may support the contention of the learned counsel, has been raised by Dhani Ram, defendant No. 1, who has since died; rather defendant No. 1 has claimed his ownership in the land, as well as the shops, as is evident from the specific plea taken in the written statement in para 4 which reads as under :-
'Para No. 4 is wrong and denied. The shops in question were constructed by the defendant about 40 (forty) years back and ever since then the defendant is in possession of these shops. The site on which the shops were constructed by the defendant 40 years ago belongs to the Mandir. As the said Mandir was constructed by the defendant's fore-fathers, so the defendant is both its Pujari and owner of this site as well as of the shops The defendant has let out these shops since more than 20 years and is the rightful owner of these shops. Defendant Nos. 2 to 3 are tenants under defendant No. 1 since long and the defendant has spent large sums on the construction of these shops.
' Faced with this situation, Mr. Aggarwal, learned counsel for the appellant, has drawn my attention to the averments made in the plaint by the plaintiffs, wherein an alternative plea has been taken in para 5, which read as under :
'That in the alternative if it be held that the land in dispute was utilized by the Shivala then again the plaintiffs are entitled to the possession as the structures have been raised by defendant No. 1 in contravention of the purpose for which the land was utilized by the Shivala and defendant No. 1 had no right to change the purpose No change in the land could be made without the permission and consent of the plaintiffs who are the owners of the land.' In my view, the aforesaid plea, which has been taken in the alternate, does not in any way help the learned counsel for the appellant, especially when at no stage during the trial or in the first appeal, it was ever urged on behalf of the plaintiffs that the income arising out of the shops was being urged for the purpose of the Shivala. As earlier observed, the whole case of defendant No. 1 is based on the pica of ownership of the Shivala and the adjacent land attached to the Shivala. In this situation, no case has been made out by the defendant for the framing of any new issues on the pleas which have been reproduced above. In this situation, the application for permission to adduce the additional evidence stands rejected."
3. The decree passed in a civil suit has to be interpreted in conjunction with the findings recorded in the body of the judgment. On the deputed land, there was a Shivala and shops had also been constructed on a part of the disputed land and some area was lying vacant.
4. Order 21, Rules 35 and 36 Civil Procedure Code, point out the mode of executing decree for possession of immovable property. A perusal of the orders under challenge indicates that the Executing Court was not clear as to how the possession has to be delivered to the decree-holder. It thought, that the decree could be got executed by issuing warrants of possession to be executed by Tehsildar, Ludhiana It did not comprehend the correct legal position and the nature of the decree which it was called upon to execute The decree is not for simplicitor possession of agricultural land. The possession of agricultural land can only be delivered after removing the illegal constructions raised thereon. The plaintiffs have not even admitted the existence of the Shivala on the disputed land. The existence of the Shivala and the shops was established on the positive plea of defendant No. 1 - Dhani Ram. The net result is that the possession of the agricultural land has to be delivered to the decree-holders after demolishing the super structures standing thereon. The Tehsildar cannot execute the warrants of possession, as has been ordered by the executing Court. In fact, in the instant case, the proper course for the executing Court will be to appoint a commissioner for delivering possession in execution of the decree. Rule 10-B of Order 26 of the Code of Civil Procedure enables the Court to appoint a Commissioner to do any ministerial act. The executing Court has jurisdiction to direct delivery of possession of the disputed land through the Commissioner. Reliance can usefully be placed on the following observations of the Allahabad High Court in Bhagwati Prasad Hajela v. Bishambhar Nath Singh Kapoor, A. I. R. 1972 All. 552:--
"The question, therefore, is whether irrespective of Section 76 and Order 26, C.PC. the executing Court had jurisdiction to direct delivery of possession through a Commissioner. Order 21 deals with the procedure for executing of decrees and orders. Order 21, Rule 35, C.P.C., authorises the Court to deliver possession of immovable property. Sub-clause 3 of Order 21, Rule 35, C.P.C. reads as under :--
'Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.' 'This sub-clause is indicative of the fact that the executing court is competent to effect delivery of possession through its officers An Advocate is not an officer of the Court till he is appointed a Commissioner and once he is appointed a Commissioner he becomes an officer of the Court as long as his authority to act as a Commissioner continues. Order 1, Rule 105, C. P.C. as amended by this Court is also pointer to the fact that a Commissioner can be appointed for special reasons. It reads as under: --
'Every attachment of movable property under Rule 42, of negotiable instruments under Rule 51, and of immovable property under Rule 54, shall be made through a Civil Court. Amin or bailiff, unless special reasons render it necessary that any other agency should be employed in which case those reasons shall be stated in the handwriting of the presiding Judge himself in the order for attachment.' If, therefore, the attachment could be effected through an officer of the court there is no justification why the delivery of possession which is dependent on the passing of the decree cannot be effected through a Commissioner. There is nothing in General Rules (Civil) or in the Code of Civil Procedure to the contrary. Reliance has been placed by the applicant on the A.I.R. 1961 S.C. 218 wherein it was laid down :--
'Court has no inherent powers under Section 151 to appoint a Commissioner to seize account books in the possession of the plaintiff, upon an application by the defendant that he has apprehension that they would be tampered with."
"The facts of this case are distinguishable from Padam Sen's case."
5. In the instant case, it will be appropriate for the executing Court to nominate two Commissioners--one Sub-Divisional Engineer, P.W.D. (B. & R.), Ludhiana and the other Tehsildar or Naib Tehsildar, Ludhiana to deliver possession of the disputed property to the decree-holders Admittedly, superstruclures are standing thereon. The Tehsildar with the aid of subordinate revenue staff and revenue record will demarcate the disputed land of which possession is to be delivered. The Sub-Divisional Engineer, P. W. D. (B. & R.) will evaluate the super structures If the parties to the lis mutually agree, the possession be delivered alongwith the super structures thereon and the respondents will be compensated with costs of the super-structures, which will be paid by the decree-holders If the parties to the lis do not agree over the costs of the super structures, the possession will be delivered to the decree holders after removing the superstructures. The Local Commissioners' fee will be fixed by the executing Court to be paid by the decree-holders
6. As the execution proceedings in this case are lingering on for a long time, the executing Court shall, as far as possible, dispose of the matter expeditiously, preferably within four months from the date of receipt of this order.
7. For the reasons stated above, the revision petition succeeds, the orders under challenge are set aside and the decree be executed as indicated above.
8. This stands disposed of in the light of the judgment in the main revision petition.