Punjab-Haryana High Court
Mohinder Kaur And Others vs Mohinder Singh And Others on 19 May, 2010
Civil Revision No. 864 of 2010 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 864 of 2010
Date of decision : 19.5.2010
Mohinder Kaur and others ....Petitioners
Versus
Mohinder Singh and others ...Respondents
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. Pawan Kumar, Senior Advocate with
Mr. Saqib Ali Khan, Advocate for the petitioners.
Mr. K.S.Dadwal, Advocate for the respondents.
S. D. ANAND, J.
The petitioners herein had filed objections before the learned Executing Court which (objections) came to be negatived by that Court, vide order dated 5.11.2009. The view obtained by the learned Executing Court came to be affirmed by the learned Ist Appellate Court.
It would be appropriate to notice the facts, culminating in the impugned controversy, in the first instance.
The respondents-landlords filed an application for ejectment of Kashav Ram and 17 others (non parties to the cause before this Court) from "the rented land bearing Khasra No.105/1 and 105/2 detailed in its heading and situated on Railway Road, Hoshiarpur after removal of the construction raised thereon." The application came to be granted by the then learned Rent Controller, vide order dated 28.2.1987 (Annexure P-1). The following order Civil Revision No. 864 of 2010 -2- ***** came to be granted in decretal of that petition:-
"In the light of my findings on the above issues, this application succeeds and consequently accepting the same with costs. I I make an order directing the respondents to put the applicants in possession of the rented land within one month from today after removal of the superstructure/construction raised thereon".
The order was affirmed in Ist appeal and also by this Court in Regular Second Appeal.
Thereafter, the petitioners herein filed an objection petition to resist the execution of the impugned judgment and decree on averments which may be indicated as under:-
The land in suit was initially jointly owned by Gurdit Singh son of Bhola Ram and Gurnam Kaur alias Ram Pyari daughter of Gurdit Singh, the latter being co-owner to the extent of 5 kanals and one Sarsahi . The total land was 2 kanals 11 marlas. Gurnam Kaur alias Ram Pyari sold her share to Surinder Pal Singh (predecessor- in-interest of petitioner-objector), vide sale deed dated 19.8.1998. Surinder Pal Singh aforementioned was already in possession of that land. There was a cinema building in existence over that land which (cinema) was being run under the name and style of M/s New Raj Theatre. Cinema building was jointly owned by Keshav Ram and seven individuals (Sansar Chand, Tirath Ram, Ram Nath, Narotam Pal, Narinder Nath, Ved Parkash, Hem Raj and the firm M/s New Raj Theatre). The firm M/s New Raj Theatre held 1/7th share in the Civil Revision No. 864 of 2010 -3- ***** building, machinery and other fixtures of M/s New Raj Theatre; while remaining 6/7 share was owned by the persons aforementioned.
Surinder Pal Singh purchased share of Jagdish Ram on 20.9.1991. His co-objector Mohinder Kaur purchased the share of Sansar Chand, Tirath Ram, Ram Nath, Narotam Pal, Narinder Nath, Ved Parkash and Hem Ram on 15.5.1992. The share of M/s New Raj Theatre was purchased by Surinder Pal Singh in a court auction on 26.5.1993. The sale certificate dated 27.3.2002 came to be issued on the basis of that transaction dated 26.5.1993. The individuals aforementioned were also partners of firm M/s New Raj Theatre. The petitioners-objectors resisted the execution of the ejectment order aforementioned by averring that they were not made parties to the ejectment action and, thus, they are not bound by the ejectment order aforementioned. Further plea raised by them was that they are in possession of the land in question as co-owners and cannot be ejected in execution of the ejectment order which never ever came to be granted against them.
The objections were resisted by the respondents who averred that the petitioners herein having purchased the property in suit long after the adjudication by the learned Trial Court and learned District Court could not be heard to raise a claim of title to resist execution. Qua the transaction, as between Gurnam Kuar @ Ram Pyari and the petitioners-objectors, it was averred that the vendor had delivered only symbolic possession of the land sold by her. The plea, raised on their behalf, was that the objectors are, Civil Revision No. 864 of 2010 -4- ***** thus, bound by the impugned decree and they cannot be heard to contest the title of the landlords.
In revision before this Court, the plea raised on behalf of the petitioners-objectors is that with the acquisition of title of a part of property in suit, the petitioners-objectors have become co-owners and that, on that account, the only remedy available to the respondents-landlords was to get the joint property partitioned. Reliance, in support of the advocated view, was placed upon Jagdish Dutt and another Vs. Dharam Pal and others AIR 1999 Supreme Court 1694 .
The plea was resisted by the learned counsel appearing on behalf of the respondents who relied upon T.Lakshmipathi and others Vs. P. Nithyananda Reddy and others 2003(2) RCR 117, Smt. Inderjit Kaur and others Vs. Baij Nath 2003(2) R.C.R. 242 and M/s India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla 2004(1) Supreme Court Cases 412 in support of the plea raised that even if the tenants have acquired partial interest, the co- owners/landlords can be evicted from the tenanted premises as their title would not impede the implementation of the impugned judgment and decree which came about in the year 1998; whereas the impugned order came to be granted on 28.2.1987.
There being no controversy about the factual scenario, it is only the legal aspect which needs to be considered.
It is apparent from the record that the total land, qua Civil Revision No. 864 of 2010 -5- ***** which the relevant suit had been decreed, was 2 kanals 11 marlas. The ejectment action by the respondents-landlords against the respondents came to be initiated in the year 1983; whereas the petitioners-objectors purchased a part of the tenanted premises in the year 1998 (1/7th share of the property in the suit came to be purchased by the predecessor-in-interest at a court auction held on 25.5.1993). There is no documentation to prove that the actual possession of the premises had been handed over by Gurnam Kaur alias Ram Pyari to the petitioners-objectors. As already indicated, the plea filed by the decree holder was qua specified land comprised in Khasra No.105/1 and 105/2. In that view of things, it was inappropriate for the petitioner-objector to raise a plea valid enough to resist eviction and to uphold their contention that the respondents ought to go in for partition proceedings to get the total land partitioned on the premise that the plea raised that impugned decree cannot be implemented presently by the respondents-decree holders.
Reliance placed by the learned counsel for the petitioners upon Jagdish Dutt's case (supra) is misconceived inasmuch as the decree in that case, which had been granted in favour of the joint family was held to be a decree in favour of all the members of joint family. That decree thereby became a joint decree. The Apex Court held that in such an eventuality, if one coparcener assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the claim by the decree holder gets Civil Revision No. 864 of 2010 -6- ***** extinguished to the extent of the interest so assigned. There is no parallel of the facts as between that case and the case before this Court.
On the other hand, reliance placed by learned counsel appearing on behalf of the respondents T. Lakshmipathi's, Inderjit Kaur's and Bhagabandei Agarwalla's cases (supra) is appropriate. In T. Lakshmipathi's case (supra), five out of which a large number of co-owners sold off their undivided shares to the tenant who thereby acquired interest in the property. The Apex Court held that their tenancy would not merge with ownership . In Inderjit Kaur's case (supra), the Apex Court categorically held that status of a tenant cannot merge with that of a landlord. A similar view was obtained by the Apex Court in Bhagabandei Agarwalla's case (supra).
As already noticed in an earlier part of the order, the impugned judgment and decree was for specified khasra Nos. 105/1 and 105/2 and it (decree) also ordained the delivery of possession to the decree holders. In that view of things, it was illogical for the petitioners-objectors to resist the implementation of the decree.
The petition shall stand dismissed accordingly.
May 19, 2010 (S. D. ANAND) Pka JUDGE