Punjab-Haryana High Court
Suraj Bhan And Anr. vs Smt. Chander Kanta And Ors. on 21 July, 1998
Equivalent citations: (1998)120PLR315
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Suraj Bhan and Jasbir Singh, hereinafter described as the petitioners, directed against the order passed by the learned Civil Judge (Junior Division), Kurukshetra and that of the learned Additional District Judge, Kurukshetra, dated 16.9.1997 and 14.10.1997 respectively. By virtue of the impugned order, the learned trial Court had dismissed the application filed by the petitioners under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short "the petitioners") to restrain the respondents from dispossessing the petitioners from the suit property till the decision of the pending civil suit. The appeal filed by the petitioners was also dismissed by the learned Addl. District Judge.
2. The facts alleged by the petitioners which prompted them to claim ad interim injunction were that Lakhpat, father of the petitioners, was recorded as owner of land measuring 33 Kanals 12 Marias. It was situated within the revenue estate of village Mirkapur, Tehsil Thanesar, District Kurukshetra. It was ancestral joint Hindu Family coparcenary property. Lakhpat was recorded as owner being the Karta of the Joint Hindu Family. Lakhpat had no legal necessity or pressing need to mortgage or sell the said land. Still he mortgaged the land vide mortgage deed dated 5.3.1974 in favour of Sat Pal and Ram Ditta. Though the mortgage was shown to be mortgage with possession, but the same, in fact, remain with Lakhpat. The said Lakhpat wanted to create further mortgage of the land approached respondents mentioned above for executing additional mortgage deed. Satpal got thumb-impressions on the document of sale of land of Lakhpat vide sale deed dated 20.2.1978 showing a false consideration of Rs. 49,000/- by fraud. He got another sale deed showing consideration of Rs. 20,000/- though no amount was paid by the wife of Satpal to Lakhpat. When the alleged fraud came to the notice of Lakhpat, he filed two civil suits for declaration that mutations sanctioned on the basis of sale deeds shall be declared null and void. The civil Court directed status quo to be maintained. Subsequently, Lakhpat died. Petitioners were impleaded as legal representatives of Lakhpat. Meanwhile, Smt. Chander Kanta claiming to be the mortgagor and owner of the said property filed an application under Section 4 of the Redemption of Mortgage (Punjab) Act, 1913 in the court of Collector, Thanesar for the redemption of the mortgage deed dated 5.3.1974. Collector, Thanesar, on 29.7.1997 allowed the application on payment of Rs. 22,000/- as mortgage amount and further allowed Smt. Chander Kanta to take possession of the suit land in execution of the said order. Petitioners filed an application under Section 4 of the Redemption of Mortgage (Punjab) Act, 1913 but it was dismissed by the Collector, Thanesar, petitioners prayed for ad interim injunction to restrain the respondents to execute the order passed by the Collector and that they (petitioners) should not be dispossessed from the suit property.
3. Respondents No. 1 and 2 contested the petition. They alleged that the petitioners have no right, title or interest in the suit property. It was insisted that Lakhpat had mortgaged the land measuring 33 Kanals 12 Marias and subsequently sold the same in favour of Smt. Chander Kanta vide two sale deeds dated 20.2.1978 and 28.6.1978. Mutation was effected in favour of Smt. Chander Kanta. An application was filed for redemption of the mortgage against the petitioners and others. The said land was ordered to be redeemed by the Collector, Thanesar, Respondent No. 1 has taken possession in accordance with law. It was denied that the sale deed so executed was an act of fraud or forgery. It was averred that the petitioners had secured an order of status quo in the civil suits but the said order was modified to the effect that respondent No. 1 could take possession of the suit land in due course of law and the order of status quo will not affect the proceedings of redemption of mortgage pending with the Collector, Thanesar.
4. Learned trial court prima facie concluded that the order passed by the Collector could not be said to be without jurisdiction and further went on to hold that petitioner could be dispossessed in accordance with law or in other words in pursuance with the orders passed by the Collector, Thanesar. The said finding found favour with the first Appellate Court and it was held that the Court will not deprive the respondent the fruits the decree that had been passed. In these circumstances, the application seeking ad interim injunction was dismissed. Hence, the present revision petition.
5. Learned counsel for the petitioners urged that earlier an order was passed directing the parties to maintain status quo regarding possession. On 8.3.1989 the said order was modified to the effect that the order of status quo will not put any hindrance in the proceedings pending before the revenue authorities and that the proceedings shall continue before the revenue authorities. Taking advantage of the same, he emphasised that petitioners could not be dispossessed because only proceedings could continue before the revenue authorities. In answer, the respondents contention was that the proceedings include execution of the result of the proceedings. In this regard, therefore, it becomes necessary to look at what the parties would mean for continuation of proceedings before the revenue authorities. In Webster's Third New International Dictionary at page 1807 the word "proceeding" has been explained to be as," the action of proceeding: a particular way of doing or accomplishing something." In Stroud's Judicial Dictionary of Words and phrases,. Third Edition, at page 2310 the word "proceeding" has been explained to be," any other proceeding in action" (R.S.C., Order 26 Rule 1) means any proceeding with a view to continuing the action, i.e. a step forward, not one backward." Similarly, in Bouviers's Law Dictionary and Concise Encyclopedia, Third Edition, at page 2730 word "proceeding" has been explained to be," In its general acceptation the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments, and of executing. It includes certified copies of pleadings on which the case was tried." Same meaning has been given in Black's Law Dictionary at page 946 which reads as, "In a general sense, the form and manner of conducting juridical business before a court or judicial officer regular or orderly progress in form of law: including all possible steps in an action from its commencement to the execution of judgment. In a more particular sense, any application to a court of justice, however made for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object."
6. It is abundantly clear from the aforesaid that execution is a part of the proceedings. It is a continuing action and reaping the fruits. Once the Court has directed that proceedings can continue with the revenue authorities, it clearly implies that the proceedings with respect to taking of possession in pursuance of order that might be passed would also continue. Therefore, the contention raised by the learned counsel has little merit.
7. There is another way of looking at the same. It is clear from the resume of the facts given above that in the proceedings before the revenue authorities an order has been passed and in pursuance thereto the respondent is taking possession of the property. It shows that the respondent is pursuing his legal remedy in the court of law to eject the petitioner. Once it is so, the civil Court would be reluctant and slow to interfere. In this regard, answer would be provided by the two precedents from this Court. In the case of Madan Lal and Ors. v. Dil Singh, (1982)84 P.L.R. 63. It was held that when a person is taking possession in accordance with law then it is improper to attract Order 39 Rule 1 of the Code of Civil Procedure. In paragraph 2 of the judgment it had been observed as under :-
".....obviously, by pursuing the suit for ejectment, the vendees were neither threatening to dispossess the plaintiff nor to cause an injury to him in relation to the suit property because the threat or the injury necessarily implies the commission of a wrongful act. When a person pursue his legal remedy in a court of law, may be to eject the plaintiff, he cannot by any stretch of reasoning be said to threaten to dispossess or cause injury to the plaintiff in relation to the suit property. The learned counsel for the respondent also did not seriously dispute this proposition and, therefore, laid stress mainly on the inherent powers of the courts under Section 151, Civil Procedure Code."
8. Similarly, in the decision rendered in the case of Piare Lal and Anr. v. Babu Singh and Ors., (1990-2)98 P.L.R. 370, an order was passed by the revenue court. This Court held that defendants should not be restrained from executing such order. The precise findings recorded in paragraph 4 of the judgment are as under :-
"After hearing the learned counsel for the parties, I am of the considered opinion that the whole approach of the lower appellate Court in this behalf was wrong and illegal and that it acted illegally and with material irregularity in the exercise of its jurisdiction. The defendants could not be restrained from executing the decree passed in their favour by the revenue Court. The trial Court rightly observed that the present suit is a clever device to keep possession of their father intact over the property of which he is ordered to be ejected by the revenue Courts."
9. It is, therefore, crystal clear that petitioners were not being dispossessed ex- cept in due process of law. The earlier order directing the parties to maintain status quo with respect to possession of the property had been modified. Th6 respondents had been permitted to continue with the revenue proceedings, ft is in pursuance of that order that they are trying to seek possession. Once it is so, the trial Court and the first Appellate Court have rightly held that the civil Court will not restrict the right of the respondents.
10. No other point, though the same had been urged before Courts below, were not pressed in this Court.
11. For these treasons, the revision petition being without merit must fail and is dismissed,