Himachal Pradesh High Court
Reserved On: 05.06.2025 vs Rajesh Kumar Sood(Deceased)Through ... on 23 June, 2025
2025:HHC:19367
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.112 of 2018
Reserved on: 05.06.2025
Decided on: 23.06.2025
Ashok Kumar Sood (deceased) through LRs & others
...Appellants
Versus
Rajesh Kumar Sood(deceased)through LRs& others
...Respondents
Coram
Hon'ble Mr. Justice Satyen Vaidya, Judge
Whether approved for reporting? Yes
For the appellants: Mr. Ankush Dass Sood, Senior Advocate
with Mr. Ruchirangad Singh, Advocate.
For the respondents: Mr. Ajay Kumar, Senior Advocate with
Mr. Rohit, Advocate, for respondents
No.1(i), 1(ii) and 1(iv).
Mr. Rajnish Maniktala, Senior Advocate
with Mr.Dinkar Bhaskar, Advocate, for
respondents No.1(iii) and 5.
Mr. Umesh Kanwar, Advocate, for
respondent No.4.
Mr. Ajay Sharma, Senior Advocate with
Mr. Atharv Sharma, Advocate, for the
applicants/respondents.
Satyen Vaidya, Judge:
This Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure (for short, "the -2- Code") against the judgment dated 04.12.2017 passed by learned District Judge, Kangra at Dharamshala in Civil Miscellaneous Appeal No.22-P/XIII/2003, whereby the judgment dated 08.09.2003 passed by learned Senior Sub Judge, Kangra at Dharamshala in Execution Petition No.24/86 has been affirmed.
2. The appeal has been admitted for hearing on following substantial questions of law vide order dated 10.07.2018:
"1. Whether the Ld. Courts below have exceeded their jurisdiction in adjudicating the Notice under Form 40 Appendix (E) contemplated under Order 21 Rule 97 of the Code of Civil Procedure in law and procedure as also in term of the order dated 08.08.2003 passed in Civil Revisions 65, 66, 67 and 68 of 2003respectively?
2. Whether the Ld. Courts below are justified in law in adjudication and confirming the issues, which have attained finality in the previous proceedings as to whether the same were barred under Order 21 Rule 102 of CPC?
3. Whether it were open to the obstructionists as also the legal heirs of the original judgment debtors to take such objections which stood adjudicated in various previous proceedings as also not available in law and contrary to the revenue record which stood rectified in 1993 -3- which had attained finality and whether it was open for the Ld. Courts below to open the same and ignored such record which has attained finality and return such findings which were preserved the law and record?
4. Whether the findings of both the Ld. Courts below as to the co-ownership of the obstructionist are perverse in law and record ignoring the decision of the Ld. Collector dated 18-07-1991 and affirmed in review order dated 11-03-1996 against which no further appeal was preferred by the JD?
5. Whether the Ld. Court below as also the Appellate Court would be justified in reopening the entire issues on merits and trying as a suit in term of the provisions of Order 21 Rule 97, Notice under Form 40 Appendix (E) and ignoring all previous litigations, suits, replies and objections taken in the past?"
3. The background facts of the case are as under:
3.1 Ram Sarup and Amrik Chand, both sons of Lala Chuni Lal entered into an agreement to get all their pending disputes in respect of businesses and properties decided by arbitration. Their paternal uncle Jagat Ram was appointed as Arbitrator. Jagat Ram pronounced the award dated 10.12.1965. It pertained to many pending disputes inter se Ram Sarup and Amrik Chand, however, for the -4- adjudication of instant matter, paragraph 6 of the award needs notice as under:
" 6. Both the parties have other movable and immovable property in their joint ownership and individual ownership. The parties would separately execute regular partition deed in accordance with law on the stamp paper. But I think necessary that this dispute should also be settled. I, therefore, decide that out of the land owned by the parties comprised in Khasra No. 160 situated in Tika and Mauza, Banghiar Khas Tehsil Palampur, 18 marlas will fall to the share of Shri Amrik Chand party no.2 (on this land measuring 18 marlas) there is a residential house and two newly constructed shops owned by Amrik Chand party no.2 and there is land owned by the parties measuring 5K 18M and situated in Tika Rodi, Mauza Khalet, Tehsil Palampur is given to Amrik Chand, party no.2. The mutation about this land on the basis of private partition would be got sanctioned by Ram Sarup, party no.1. The remaining land situated in Tika and Mauze Banghiar Khas including two pucca shops newly constructed and one latrine is given to Ram Sarup, party no.1. The mutation about this on the basis of private partition would be got sanctioned in favour of Shri Ram Sarup. Party No.2 Shri Amrik Chand would be responsible for getting this sanctioned. It is hereby clarified that except 18 marlas of the land as mentioned above, the remaining land situated in Tika and Mauza Banghiar Khas will be in the sold ownership of Ram Sarup party no.1. The parties would get the Tatima of the aforesaid 18 Marias of land prepared by the Patwari Besides this, the land near the shop along with building, its building material situated in Banjar Distt.-5-
Kulu as explained in para no.2 of the award is given to Amrik Chand, party no.2. The parties would get the mutation sanctioned. Both the parties would be bound morally and legally in accordance with the writing dated 10/8/1965. The copies of this decision are given to each of the party."
3.2 The award passed by Jagat Ram was made rule of the Court by learned Senior Sub Judge, Kangra at Dharamshala vide order dated 19.03.1975 passed in Case No.390/68, titled as Jagat Ram vs. Ram Sarup & another. Amrik Chand assailed the aforesaid order dated 19.03.1975, passed by learned Senior Sub Judge, Kangra at Dharamshala, in Civil Appeal No. 5/1975 before learned Additional District Judge, Kangra, which was dismissed vide judgment dated 01.03.1976. The judgment passed by learned Additional District Judge in Civil Appeal No.5 of 1975 was further assailed by Amrik Chand by way of Civil Revision No.21 of 1976 before this Court, but the same was also dismissed on 25.04.1980. Amrik Chand further assailed the judgment passed by this Court in Civil Revision No.21 of 1976 before Hon'ble Apex Court, but again remained unsuccessful. In this manner, the Rule of Court made by learned Senior Sub Judge, Kangra at -6- Dharamshala on 19.03.1975 in Case No.390/68 attained finality.
3.3 Ram Sarup filed Execution Petition No.24 of 1986 on 02.04.1986 in the Court of Senior Sub Judge, Kangra at Dharamshala (for short, "the Executing Court") and sought possession of the property comprised in Khewat No.106/108, Khatauni No.283, Khasra Nos.388 and 389/1, measuring 0-5-10 Hectares in accordance with para 6 of the award. At this stage, it will be necessary to refer to para 6 of the award, wherein 18 marlas of land out of Khasra No.160 situated in Tikka and Mauza Bhangiar, Tehsil Palampur had fallen to the share of Amrik Chand and for identification it was referred to as a residential house and two shops constructed by Amrik Chand. In addition, 5 Kanals 18 marlas of land in Tikka Rodi, Mauza Khalet, Tehsil Palampur was also given to Amrik Chand. The remaining land situated in Tikka and Mauza Bhangiar Khas, including two pucca shops newly constructed and one latrine, was given in the share of Ram Sarup. Khasra Nos.388 and 389/1 in respect of which relief was sought in Execution Petition No.24/86 were the new numbers -7- assigned to part of Khasra No.160 regarding which the reference was made in the award.
3.4 During the pendency of Execution Petition No.24/86 Amrik Chand and Ram Sarup, on 13.11.1987, made a joint statement before the Executing Court to the effect that 18 marlas in Khasra No.160 (old) be handed over to Amrik Chand, after getting the same measured. Accordingly, the Executing Court appointed Sadar Kanungo, Dharamshala as Local Commissioner to measure Khasra No.160 (old) and to prepare Tatima of 18 marlas of land and also to report as to how much land was actually possessed by Amrik Chand. Sadar Kanungo, Dharamshala prepared his report dated 28.02.1988. Along with report, a Tatima of the spot was also prepared by the Local Commissioner. Amrik Chand filed objections to the report of Local Commissioner. Learned Executing Court framed the issues. Before the issues could be adjudicated on merits, on 23.05.1990, the parties i.e. Ram Sarup and Amrik Chand agreed that without deciding the objections, fresh warrant of possession could be issued directing the Tehsildar Palampur to visit the spot; measure old Khasra -8- No.160 (min) and thereafter to find out the land in possession of Amrik Chand. If it was found to be more than 18 marlas, after delivering 18 marlas to Amrik Chand, rest of the land be delivered to Ram Sarup.
3.5 On 01.03.1991 Ram Sarup filed an application under Section 151 of the Code with a prayer to include Khasra No.159 (old) also in the warrant of possession, in addition to the excess area of Khasra No.160. Though, Amrik Chand disputed the prayer, but learned Executing Court on 12.06.1991 allowed the application of Ram Sarup. Consequently, the Executing Court ordered issuance of warrant of possession qua Khasra No.159 (old) corresponding to new Khasra Nos.388/1, 391, 392, 395, 396, 389 and 390 in addition to area allotted to Ram Sarup in the award.
3.6 Amrik Chand challenged the order dated 12.06.1991 of the Executing Court in Civil Revision No.110 of 1991 before this Court but could not succeed and the Civil Revision was dismissed vide judgment dated 26.07.1991. Amrik Chand then filed review petition No.11of -9- 1991 but again remained unsuccessful as the same was dismissed on 05.12.1991.
3.7 At that stage, the judgment debtor Amrik Chand filed fresh objections under Section 47 of the Code, which were dismissed by learned Executing Court vide order dated 14.07.1992. Amrik Chand filed an appeal before Additional District Judge-I, Kangra against the order dated 14.07.1992 passed by the Executing Court. By an interim order passed by the appellate Court on 17.07.1992, the warrant of possession dated 14.07.1992 issued by the Executing Court in Case No.24/86 was ordered to be kept in abeyance. Ram Sarup now challenged the interim order passed by learned Additional District Judge-I, Kangra at Dharamshala by way of Civil Revision No.145 of 1992 before this Court. The said revision was decided on 15.09.1993. Execution Petition No.24 of 1986 was dismissed as not maintainable and consequently the appeal preferred against the order passed by learned Executing Court was also dismissed. Ram Sarup approached Hon'ble Supreme Court against the judgment dated 15.09.1993 in Civil Revision No.145 of 1992. Vide -10- order dated 28.10.1994, Hon'ble Supreme Court allowed Ram Sarup to withdraw his Revision Petition No.145 of 1992 and resultantly the judgment passed by this Court on 15.09.1993 in the said Revision Petition No.145 of 1992 was also set aside. In result, Civil Miscellaneous Appeal No.15 of 1992, titled Amrik Chand vs. Ram Sarup, pending before learned Additional District Judge-I Kangra at Dharamshala, was revived along with interim order passed therein.
3.8 The aforesaid appeal was finally decided by learned District Judge, Kangra vide judgment dated 04.04.1995 and the same was dismissed. Amrik Chand assailed the order passed by learned District Judge Kangra at Dharamshala by way of Civil Revision No.144 of 1995. This Court vide judgment dated 15.10.1996 decided Civil Revision No.144 of 1995 along with Civil Revision No.145 of 1995 and CMP(M) No.193 of 1995 in Civil Revision No.145 of 1995. All the impugned orders were set aside. The Executing Court was directed to take up the proceedings from the stage of hearing arguments in light of order dated 30.10.1987 passed by the Executing Court. -11- 3.9 Thereafter, the Executing Court on 31.03.1997 dismissed the Execution Petition, which again gave a cause to Ram Sarup to approach this Court by way of Civil Revision No.8 of 1998. Learned Single Judge of this Court vide judgment dated 10.06.1998 decided Civil Revision No.8 of 1998. The objections filed by Amrik Chand were held (a) frivolous;(b) wholly devoid of merit and (c) an attempt to put the machinery of law and the impact of judgments and orders passed by the Courts earlier to a grinding halt. The objections were dismissed and the order of the Executing Court was set aside. The Executing Court was directed to proceed with the execution so as to deliver possession of the property being claimed by Ram Sarup in sequence to order dated 12.06.1991 passed by the Executing Court and upheld by this Court by judgment dated 26.07.1991. Specific direction was issued to make all out efforts to deliver the possession to the decree holder without any further delay and in case the police help was required, the Executing Court was to pass orders to that effect.
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4. On addition of land comprised in Khasra No.159 in warrant of possession vide order dated 12.06.1991 of the Executing Court as affirmed by this Court on 26.07.1991, certain other persons also had initiated legal process to halt the execution of decree with respect to Khasra No.159. Three persons, namely, Rajesh Kumar, Sanjeev Kumar and Pratap Chand filed Civil Suits in the Court of learned Sub Judge, Palampur seeking injunction against Ram Sarup from getting possession of Khasra No.159 (old) in execution of decree. All the above persons claimed themselves to be in possession of land in Khasra No. 159 on the basis of titles allegedly acquired by them from co-sharers of said land. Learned Sub Judge, Palampur granted interim stay orders in favour of aforesaid persons. Rajesh Kumar, Sanjeev Kumar and Pratap Chand approached the Executing Court with applications with prayers to stay its hand from Khasra No.159 (old) on the basis of interim order passed by learned Sub Judge, Palampur. The Executing Court faced predicament being under directions of this Court to execute the decree at the earliest and on the other, the interim orders passed by learned Sub Judge, Palampur in favour of -13- Rajesh Kumar, Sanjeev Kumar and Pratap Chand. The Executing Court made a reference to this Court and in response, all the suits filed by Rajesh Kumar, Sanjeev Kumar and Pratap Chand before Sub Judge, Palampur were ordered to be transferred to the Court of learned Senior Sub Judge, Kangra at Dharamshala, which also was the Executing Court in Execution Petition No.24 of 1986. Learned Senior Sub Judge, Kangra at Dharamshala rejected the plaints in Civil Suits filed by Rajesh Kumar, Sanjeev Kumar and Pratap Chand. Orders of rejection of plaints passed by learned Senior Sub Judge, Kangra at Dharamshala were assailed in Civil Appeals before learned District Judge, Kangra, but all the appeals were dismissed, against which, the said persons filed Regular Second Appeal Nos.69 of 2003, 109 of 2003, 110 of 2003 before this Court.
4.1 Simultaneously, in Execution Petition No.24 of 1986, warrant of possession was issued. At that stage, Rajesh Kumar, Sanjeev Kumar and Pratap Chand resisted the delivery of possession in respect of Khasra Nos.159 and 160 on the premise that they held the possession of said -14- lands in their own right having purchased substantial shares from the co-owners. The Revenue Officer, who was assigned the job to execute the warrant, reported accordingly without execution of warrant. 4.2 Noticeably, Amrik Chand had separately written to the Field Kanungo executing the warrant that his 8 marlas of land in Khasra No.160 be delivered to him as he was already in physical possession of about 14 marlas at the spot. According to him, the remaining 21 marlas of land in Khasra No.160 was in possession of remaining 13 co-sharers and the major portion thereof was in possession of Ram Sarup. He specifically submitted that his 18 marlas be delivered to him from old Khasra No.160 in such a manner that in future he should not be answerable to any of the co-sharers.
4.3 On receiving obstruction to the delivery of possession, Ram Sarup filed an application under Section 151 of the Code before learned Executing Court seeking police help. The application was allowed on 11.03.2003. The SHO Police Station, Palampur was directed to assist the field agency in delivery of possession of land to Ram -15- Sarup in accordance with the decree and if necessary to break open the locks and shutters etc. The Tatima annexed with the report dated 08.02.1988 was also sent along with warrant of possession. Aggrieved against the order dated 11.03.2003 passed by the Executing Court, Civil Revisions numbering 65, 66&67 of 2003 were filed in this Court by Rajesh Kumar, Sanjeev Kumar and Partap Chand, respectively.
4.4 As regards the land in Khasra No.159 (old), Ram Sarup and Amrik Chand had jointly purchased 1 Kanal, 9 marlas of land from one of the co-sharers named Ishwari Prashad. Since, the exclusive possession of the land sold to Ram Sarup and Amrik Chand vide sale deed dated 03.08.1960 was with Ishwari Prashad, the same as per recitals in sale deed was also delivered to Ram Sarup and Amrik Chand. However, the entries in records of rights after the sale deed dated 03.08.1960 reflected the name of Amrik Chand only as possessor. Ram Sarup had applied for correction of entries as per the provisions contained in H.P. land Revenue Act. The Collector, Kangra vide order dated 18.07.1991 ordered the correction of revenue entries -16- by incorporation of name of Ram Sarup along with Amrik Chand in the column of possession of land comprised in Khasra No.159 (old). Amrik Chand filed review of the said order, but remained unsuccessful and hence, Civil Revision No.89 of 2003 had been filed in this Court. 4.5 On 08.08.2003, Civil Revision Nos.65, 66& 67 of 2003 came to be decided by this Court. Keeping in view the long-chequered history of the case, Rajesh Kumar, Sanjeev Kumar and Pratap Chand were issued notices in Form 40 of Appendix "E" in terms of judgment passed by Hon'ble Supreme Court in Brahmdeo Choudhary vs Rishikesh Prasad Jaiswal &Anr, AIR 1997 SC 856 with liberty reserved in their favour to file replies/objections to the application of the decree holder Ram Swarup on or before 18th August, 2003. The applicationof Ram Sarup was to be treated under Order 21 Rule 97 of the Code. Rajesh Kumar, Sanjeev Kumar and Pratap Chand (hereinafter referred to as "objectors") were directed to place their entire case before the Executing Court and to also support and submit the same with the help of documents, papers etc. copies whereof to be filed with the replies/objections. -17- Learned Executing Court was directed not to extend the time granted for filing the replies/objections. Further, the directions were issued to the executing Court to take up the matter on 18.08.2003 as the first case of the day and thereafter to take up the same on day today basis without adjourning it even for one day. Further directions were issued that the claim of the objectors was to be dealt with in summary manner. The Executing Court was cautioned that the inquiry could not be and should not be treated to be akin to the trial of a regular suit and being purely summary in nature has to be dealt with accordingly. It was further directed that executing Court, with reference to whatever papers are available before it, either produced by the objectors or by the decree holder, shall examine them and pass a final order, either directing the removal of obstruction in execution of the decree or passing any other appropriate order on the merits of the case and in accordance with law.
4.6 In view of aforesaid orders, RSA No.109, 110 & 69 of 2003 along with Civil Revision No.89 of 2003 were also dismissed.
-18-4.7 In Civil Revision No.68 of 2003, Amrik Chand had raised grievance with respect to execution of warrant without Tatima. This Court vide separate order dated 08.08.2003 in Civil Revision No. 68 of 2003 disposed it of by sending the matter to the Executing court for consideration as the matters in Civil Revisions No.65, 66 and 67 of 2003 were also sent back to the Executing Court. Thus, Amrik Chand was given opportunity to file fresh application before the Executing Court and the Executing Court was directed to decide this application in the Execution Petition provided the application was filed on or before 18th August, 2003.
5. In compliance to the directions issued by this Court vide judgment dated 08.08.2003, the objectors filed their objections before the executing Court as under:-
(i) The objectors were owners in possession of their respective properties i.e. land, shops and industrial shed located on land comprised in Khasra No.159 (old) and 160 (old).-19-
(ii) Objectors claimed themselves to be the co-
sharers and co-owners in possession of the aforesaid land.
(iii) According to objectors, they had not purchased any part of the land comprised in Khasra No. 159 and 160 either from Ram Sarup or Amrik Chand, rather had purchased their respective shares against consideration by way of registered sale deeds from other co- owners of the land.
(iv) Objectors being joint owners in possession, were not bound by the decree, in which neither they nor their predecessors-in-interest were impleaded as parties.
(v) Objector Rajesh claimed that he had purchased total 0-04-41 hectares of land in Khasra No. 159 and his possession on 0-03- 76 hectares of land was since 1976. He had raised construction thereon and had started business which continued till 1992-93. In 1992-93, he had altered the construction and -20- had carved out 5 new shops by dismantling half portion of the industrial shed. According to objector Rajesh, all such things were done in the presence of the decree holder Ram Sarup, who allegedly was residing at a distance of 20-30 meters from the spot.
(vi) It was alleged that the decree holder Ram
Sarup was estopped from seeking the
execution of decree against the objectors for the reason that he had earlier filed Civil Suit No. 452/1992 inter alia challenging the sale deeds by virtue of which the objector Rajesh had purchased the specific portion from Khasra No.159 and the said suit was dismissed in default. The application filed by Ram Sarup for restoration of the suit was also dismissed.
(vii) Further, as per the objectors, the suits filed by them were objected to by Ram Sarup on the ground that the objectors had remedy under Order 21 Rule 97 of the Code.
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(viii) The entire property, in respect of which the execution was filed, was owned by about 15 other co-sharers besides Ram Sarup and Amrik Chand and hence without getting the shares separated by a decree of partition, the decree could not be executed.
(ix) The objectors further alleged that the decree related only to the extent of shares of Ram Sarup and Amrik Chand and hence it could not bind others.
(x) Challenge to Tatima dated 28.02.1988 was also raised particularly in light of subsequent local inspection carried on the spot.
(xi) The reference to Khasra No. 160 in the award and decree was alleged to be vague and incorrect. As per the objectors no such description existed at the time of award or decree or prior thereto. The execution petition was also stated to be wrong and vague in so far as description had been provided by mentioning Khasra Nos. 388 and 389/1.
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(xii) A challenge was also laid to the order dated 12.06.1991 passed by the executing Court, whereby Khasra No. 159/old and 160/old corresponding to Khasra Nos. 3881/391, 392, 394, 397, 289, 390 and 382 were held to be included in the award/decree. According to objectors, their predecessors-in-interest had rights in the said land and without hearing them no award or decree was binding.
(xiv) It was alleged that in Khasra No. 159 Ram Sarup and Amrik Chand had only 24/192 shares whereas remaining 168/192 shares were with the other co-owners.
(xv) Objectors further alleged that the arbitration award was only declaratory in nature wherein the shares were determined. It also had suggested private partition between the parties. Delivery of possession was not the part of the award or decree.
(xvi) Decree was also alleged to be collusive between Ram Sarup and Amrik Chand.
-23-(xvii) Objectors had also raised contention that the judgment dated 15.09.1993 passed by this Court in Civil Revision No. 145/1992 was required to be looked into as issues were framed therein had remained unanswered. (xviii) Lastly challenge was also raised to the order of Revenue Officer, who had ordered the correction in the revenue entries by incorporating the name of Ram Sarup in the column of possession in respect of Khasra No. 159 along with Amrik Chand.
6. Learned executing Court framed the following issues:-
1. Whether the predecessor-in-interest of the objector were co-owners in the land bearing Khasra Nos. 159 and 160 (old) as on 10.08.1965 at the time of reference was made to the Arbitrator, as alleged, if so, its effect? OPO
2. If issue No.1 is proved whether the DH and JD are already in possession of a portion more than their share, as alleged? OPO.
3. Whether the entire land bearing Khasra No. 159 and 160 is not subject matter of the decree as alleged? OPO -24-
4. Whether the decree is not executable qua the shares of objectors, as alleged? OPO
5. Whether the DH is estopped from seeking possession of share of objectors in the joint land bearing Khasra Nos. 159 and 160 (old) by his own act and conduct etc., as alleged? OPO
6. Whether the decree is unexecutable without separating the shares of objectors out of land bearing Khasra Nos. 159 and 160, as alleged? OPO
7. Whether the award/decree is collusive between the DH and JD being a result of fraud, as alleged, if so, its effect? OPO
8. Relief.
6.1 All the issues except issue No.7 were answered in affirmative. Learned executing Court vide order dated 08.09.2003 passed in Execution Petition No. 24/1986 allowed the objections of objectors and the decree has been held to be inexecutable unless the shares of the objectors were separated by way of partition.
6.2 Issues No.1 to 3 were decided together. Learned executing Court held that khasra Nos. 388/1, 391, 392, 394, 397, 389, 390 as entered in the jamabandi for the year 1986-87 were carved out of pre-settlement khasra No.159 and in that regard reference has been made to Missal Hakiyat Bandobast Jadid for the year 1975-76. The -25- older khasra number of Khasra No. 159 was also referred as Khasra No.681/124 by making reference to the Missal Hakiyat for the year 1960-61. Similarly, the land bearing Khasra Nos. 382, 388 and 389/1 was found to have been carved from pre-settlement Khasra No. 160/1 min, 160/1 min and 160/1 min by making the reference to Misal Hakiyat for the year 1975-76. The older khasra number of khasra No. 160 was traced as Khasra No.682/124 by making reference to the jamabandi for the year 1960-61.
6.3 Learned executing Court also made reference tothe entries made in the jamabandi for the year 1953-54 to hold that Bishamber Nath and others were recorded owners of land bearing Khasra No. 681/124 min and 681/124 min measuring 1 Kanal14 Marlas. Beli Ram was stated to be recorded as joint owners to the extent of ¼th share, whereas possession of Beli Ram was reflected on the entire khasra No. 681/124 min, measuring 1 Kanal 9 Marlas through lessees Dulo Ram and Brij Lal. Remaining 3 Marlas of land comprised in Khasra No. 681/124 min was noticed to be recorded in possession of co-sharer Moti Lal.-26-
6.4 Similarly, the learned executing Court found that Abhay Pal etc., were recorded as owners of land comprised in Khasra No.682/124 min and 682/124 min, measuring 1 Kanal, 14 Marlas as per the jamabandi for the year 1953-54. Jagat Ram, Purshottam, Moti Pal and Shiv Prashad were recorded owners in possession of land bearing Khasra No. 682/124 min and Jagat Ram was recorded in exclusive possession of land bearing Khasra No. 682/124 min, measuring 0-10 Marlas.
6.5 Thereafter, the learned executing Court traced the history of purchase of land in Khasra No.682/124 and 681/124 by Ram Sarup and Amrik Chand. Both were found joint owners to the extent of 19 Marlas in Khasra No. 682/124 (new Khasra No. 160) and 3 Marlas in khasra No. 681/124 (new Khasra No. 159). In addition, they were held to have purchased only possessory rights in land comprised in Khasra No. 681/124 min (new Khasra No.
159) to the extent of 1 Kanal and 9 Marlas from Ishwari Prasad. In addition, 4 ½ Marlas of land in Khasra No.682/124 (160) and 1 Marla land in Khasra No. 681/124 (159) has been found to be exclusively purchased and -27- owned by Amrik Chand. Learned executing Court came to the conclusion that since Ram Sarup and Amrik Chand had purchased only possessory rights form Ishwari Prasad vide sale deed dated 03.08.1960 in Khasra No. 681/124, the 1/4th share of land held by Ishwari Prasad remained intact, which was later sold by Ishwari Prasad to objector Rajesh Kumar.
6.6 It was held that since neither Ishwari Prasad was a party to the award or decree nor Rajesh Kumar was impleaded, therefore, the decree that was passed behind their back was not executable against Rajesh Kumar. 6.7 Further, the executing Court held that the estate of Jagat Ram was also not the part of award or decree. After Jagat Ram, his estate was inherited by his legal heirs, who further had sold their respective shares in favour of objectors.
6.8 On such premise, the learned executing Court held that Ram Sarup was not entitled to possession of the land in question by way of execution of decree dated 19.03.1975 unless the shares of the objectors were separated by way of partition.
-28-6.9 As regards issue No.2, it was held that the extent of exclusive possession of shareholders in the land in question was not ascertainable, which could be done only after the partition was effected. Issues No.4, 5 and 6 were also decided in light of the findings recorded on issues No. 1 and 3. Issue No.7 was decided by holding that there was no collusion between Ram Sarup and Amrik Chand.
7. Ram Sarup assailed the order passed by the learned executing Court by filing an appeal before the learned District Judge, Kangra, who has also affirmed the findings recorded by the learned executing Court vide impugned order. It has been held that the land was owned by various co-sharers including the decree holder, judgment debtor, objectors and others and each of the co- sharers was entitled to possession of every inch of joint land and on such premise the decree held by Ram Sarup was held to be inexecutable.
8. In the instant appeal, the appellants/decree holders have inter alia raised the following grounds:-
(i) The executing Court could not have reopened those questions which had attained finality -29- during the course of series of orders passed by various courts including this Court and Supreme Court from time to time.
(ii) Under Rules 98 and 102 of Order 21 of the Code, objections of the objectors should have been dismissed summarily as all the objectors were thriving on the fact that they were co-
owners in possession. The sale deeds on which the objectors had placed reliance have been executed after 1992 i.e. after passing of the decree.
(iii) The executing as well as Appellate Court had failed to ascertain the bonafidewith which objectors were claiming their possession on the land in question. According to the appellants, the learned executing and appellate courts had failed to answer the material question as to how the objectors had entered and held possession of the land in questions.
(iv) The findings of learned executing Court and
Appellate Court to the extent that only
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possessory title was transferred in favour of Ram Sarup and Amrik Chand by sale deed dated 13.08.1960, has also been challenged. According to appellants, the recitals in sale deed dated 13.08.1960 clearly amounted to transfer of entire share of Ishwari Prasad in land comprised in Khasra No. 159 and possession of 1 Kanal and 9 Marlas of land included therein.
(v) The impugned orders have further been challenged on the ground that the impact of order dated 18.07.1991 passed by the Collector, Kangra on the application of Ram Sarup for correction of entries and the dismissal of the review filed by Amrik Chand against the said order on 11.03.1996 had remained without consideration.
(vi) It has also been alleged that Rules 97 to 106 of Order 21 of the Code provides for protection of bonafide possessors of decretal land. They should have independent right to protect such -31- possession and the same should not have been claimed under any of the litigating parties. The possession must also be one which require protection of law. Objectors should not have acquired the possession during the pendency of action. Without making adjudication on all above material aspects, the impugned orders are sought to be set aside.
9. I have heard learned counsel for the parties and have also gone through the entire record carefully.
10. For the sake of convenience, the land which is subject matter in issue shall be referred to by Khasra Nos. 159 and 160 and their past or subsequent identification numbers will be referred only when the context may demand.
11. At the outset the following few facts, with respect to which the issues stand finally determined during the long-drawn proceedings of the case, are being noticed as under:
(a) The award dated 17.8.1965 of the Arbitrator and the decree of Civil Court dated 19.3.1975 have -32- attained finality. Amrik Chand had challenged the decree dated 19.3.1975 in appeal before the learned Additional District Judge, Kangra at Dharmshala in Civil Appeal No. 5 of 1975. The appeal was dismissed on 1.3.1976. Amrik Chand had further assailed the judgment of learned Additional District Judge before this Court in Civil Revision No. 21 of 1976 in which also, he remained unsuccessful, as the Civil Revision was dismissed on 25.4.1980. Amrik Chand had filed Special Leave to Appeal before the Hon'ble Supreme Court but there again he remained unsuccessful.
(b) Thereafter, Amrik Chand being the judgment debtor has repeatedly filed objections and all his objections have been dismissed. Reference can be made to the judgment passed by the learned Single Judge of this Court on 10.6.1998 in Civil Revision No. 8 of 1998.
(c) The issue with respect to Khasra No. 159, being part of the award dated 10.12.1965, and decree dated 19.03.1975, has attained finality in -33- the order of Executing Court passed on
12.06.1991, and affirmed by this Court vide order dated 26.07.1991, passed in Civil Revision No. 110 of 1991. Khasra No. 159 has been held to be an integral part of award dated 10.12.1965 and decree dated 19.03.1975.
(d) The award dated 7.8.1965 and decree dated 19.3.1975 have been held to be a decree of possession in respect of land comprised in khasra Nos. 159 and 160, out of which, Amrik Chand is entitled to 18 marlas of land on which his house and shop are constructed in khasra No. 160 and the remaining land in khasra No. 160 and the total land in khasra No. 159 has to fall in the share of Ram Swarup.
11.1 This Court has been constrained to observe so with a specific purpose to shun any misconception as to the dispute now subsisting in the matter.
12. The dispute now is confined only to the right, title and interest allegedly claimed by the objectors i.e. Rajesh Kumar, Sanjeev Kumar and Partap Chand.
-34-12.1. At this stage, it will be relevant to make a reference to the judgment dated 8.8.2003, passed by this Court in Civil Revision No. 65 of 2003 along with connected matters, whereby the objectors were given right to be heard by the Executing Court, within the declared and specified restrictive arrangement of the provisions of Order 21 Rules 97 to 106 of the Code.
12.2 Equally important is the view with which said order was passed. While passing the aforesaid order, this Court had recorded its strong concern on a dispute between two real brothers having not come to an end despite passage of decades at a stretch. It was in this context that the Executing Court was directed to take up the matter on day- to-day basis and try it summarily on the basis of documents/papers provided by the parties in time bound manner and definitely not as a trial on regular suit.
13. In addition, in Civil Revision No. 68 of 2003, decided on the same day i.e. 8.8.2003, this Court had granted an opportunity to the judgment debtor Amrik Chand to raise his grievance with respect to Tatima dated 28.2.1988 before the learned Executing Court and the Executing Court was directed to decide the same. Noticeably, Amrik Chand -35- was also granted limited time to file application on or before 18.8.2003 and not thereafter.
14. Thus the Executing Court, after passing of the aforesaid orders dated 8.8.2003 by this Court, was to confine itself to the issues firstly, relating to the right, title and interest, if any, held by the objectors in the land comprised in khasra Nos. 159 and 160 with its effect on the executability of the decree dated 19.3.1975 and secondly, the issue raised by Amrik Chand with respect to Tatima dated 28.2.1988. 14.1 In the order passed by the Executing Court nothing has been stated with respect to Tatima dated 28.2.1988 and the grievance, if any, of Amrik Chand in respect thereto. It appears that Amrik Chand did not raise the issue before the learned Executing Court and he has also not challenged the order of the learned Executing Court. Thus, all the issues, so far as Amrik Chand is concerned, stand finally settled.
15. As regards the pleas raised by objections as to their right, title and interest in the land in Khasra Nos. 159 and 160, it is first necessary to have a word on the scope of jurisdiction of learned Executing Court. -36- 15.1 In Silverline Forum Pvt. Ltd vs.Rajiv Trust & another, 1998 (3) SCC 723, the Hon'ble Supreme Court has held as under: -
"The words "all questions arising between the parties to a proceeding on an application under Rule 97"
would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree- holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructer must legally arise between him and the decree- holder in the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructer legally arises between the parties. An -37- answer to the said question also would be the result of the adjudication contemplated in the sub- section".
(Emphasis added) 15.2 In Usha Sinha vs. Dina Ram & others, 2008 (7) SCC 144, the Hon'ble Supreme Court has held as under:-
"24. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
25. For invoking Rule 102, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order XXI".-38-
15.3 In RSA No. 292 of 2015 Shanti Devi & another vs. Kamal Kant & others, this Court has held as under: -
"8. Rule 99 of Order XXI provides that where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the Court complaining of such dispossession and where any such application is made, the Court has to adjudicate upon the application in accordance with the provisions contained in succeeding rules. Rule 101 of order 21 further provides that all question (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit. Rule 102 provides that nothing in rule 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Rule 104 further provides that every order made under rule 101 and rule 103 is subject to the result of any suit that may be pending on the date of commencement of the -39- proceedings in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.
9. It is by virtue of the judicial precedents that the provisions of Rule 99 of Order XXI have been interpreted in such a manner that a person can approach the Court even before dispossession. Under this rule, the obstruction raised by third party can be countenanced and adjudicated only if the third party asserts its independent right to hold possession of the property i.e., subject matter of execution. Sine qua non for maintainability of objections under rule 99 is existence of an independent right. In H. Seshadri v. K.R. Natarajan, (2003) 10 SCC 449 Hon'ble Supreme Court observed as under:
"13. For the purpose of considering an application under Order 21 Rules 99 and 100 of the Code of Civil Procedure what was required to be considered was as to whether the applicant herein claimed a right independent of the judgment-debtor or not. A person claiming through or under the judgment-debtor may be dispossessed in execution of a decree passed against the judgment-debtor but not when he is in possession of the premises in question in his own independent right or otherwise.
15.4 In Shamsher Singh v. Nahar Singh, (2019) 17 SCC 279 it was observed as under: --40-
"16. There is a marked difference between Rule 101 as it existed prior to amendment and as it now exists after the 1976 Amendment. Earlier a person who was a bona fide claimant and who satisfied that he was in possession of the property on his own account or on account of some other person than the judgment-debtor could have been put in possession of the property on an application under Rules 100 and 101, whereas now after the amendment for putting back into possession an applicant has not only to prove that he is in bona fide possession rather he has to prove his right, title or interest in the property. What was earlier to be adjudicated in a suit under unamended Rule 103 is now to be adjudicated in Rule 101 itself, thus, for being put in possession, an applicant has to prove his right, title or interest in the property and by simply proving that he was in possession prior to the date he was dispossessed by decree-holder, he is not entitled to be put back in possession.
(Emphasis added) 15.5 Independent right cannot be claimed in vacuum. There has to be some factual foundation. Any claim of right despite its earlier adjudication to the contrary by Court of -41- competent jurisdiction cannot qualify the test of maintainability of objection under said rule.
16. The above noticed exposition of law makes it clear that the scope of inquiry under Order 21 Rules 97 to 106 of the Code is limited and restrictive to the following parameters: -
i) The obstruction is caused to delivery of possession to the decree holder under a decree for possession of immoveable property by a third party i.e. a party other than the judgment debtor.
ii) The third party is not claiming under the judgment debtor.
iii) The obstructionist has an independent right, title or interest to hold possession.
17. Thus, the objectors could succeed in defeating the claim of Ram Sarup on proof of above parameters. 17.1 The Arbitration award was passed on 10.12.1965.In its paragraph-6 it was clearly held that out of the land in Khasra 160 of Mauza Bhangiar Khas only 18 -42- marlas of land would go to Amrik Chand and remaining would be that of Ram Sarup. By addition of land comprised in Khasra No. 159 as decretal land the same has also to be read as part of the award and decree by implication. 17.2 An issue that arises in the instant case specifically is whether a decree of possession passed against one co-owner favouring another co-sharer in respect of part of joint land can be defeated by other co- owner(s) merely on the basis of their claim as co-owners in possession especially when such co-owners have acquired title and possession after the passing of decree? 17.3 In a decree for possession it is not necessary that the claim of decree holder is based on his title only. The decree of possession can be passed on proof of possessory title i.e. right to possess until dispossessed as per law. Therefore, in the instant case the adjudication is required to be made in case specific facts. There exists a decree of possession which is final and it has to be executed as it is in order to uphold the authority of law. It is sought to be defeated by persons other than the judgment debtor by claiming their independent right to -43- hold possession as co-owners, which they have acquired after passing of the decree.
17.4 In their struggle to defeat the decree, the objectors have raised an objection on the title of Amrik Chand and Ram Sarup with respect to land comprised in Khasra No. 159. The objectors have anxiously argued as to nature of the transaction by virtue of which Ram Sarup and Amrik Chand had jointly got interest of Ishwari Prasad in Khasra No. 159 to the extent of 1Kanal 9 marlas. 17.5 The document has the nomenclature of sale deed. It was registered on 03.08.1960. Learned Executing Court has held that Ram Sarup and Amrik Chand had got transfer of only possessory rights and title was retained by Ishwari Prasad. The contemporary revenue record reveals that Ishwari Prasad was owner to the extent of ¼ share. The objectors have supported such findings of learned Executing Court with vehemence.
17.6 The findings recorded by learned Executing Court is merely on an opinion formed on bare reading of the document. Admittedly, no evidence has been led on this issue, save and except, the production of the documents. -44- 17.7 The objectors have also tried to take benefit of the mutation attested on the basis of aforesaid deed dated 03.08.1960, wherein the changes were made only in column of possession. Similar reliance has been placed on subsequent revenue entries incorporated in the records of rights.
17.8 The entries in the records of rights are not the documents of title. The deed through which the transfer is made only has the relevance. In the case in hand, deed dated 03.08.1960, prima facie appears to have transferred the title alongwith possession for there was no requirement to register a deed of transfer in respect of possessory rights only. As per Section 54 of the Transfer of Property Act, sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Such transfer, in the case of tangible immovable property of the value of Rs. 100/- and upwards, or in the case of a reversion or other in intangible things, can be made only by a registered instrument. Thus, the sale is of ownership and the concept of ownership cannot be attached to the right of possession -45- only. It has to subsist alongwith the title in case the sale is made of a tangible immovable property.
17.9 In the context of the issue arising herein, as noticed above, assumingly the title had not passed to Ram Sarup and Amrik Singh from Ishwari Prasad in Khasra No. 159, there was a valid transfer of possession with right to hold the same and hence, the lack of title of Ram Sarup in Khasra No.159 will otherwise also not make any difference and the burden required to be discharged by the objectors will remain unchanged.
18. Now reverting to the facts of the case, first, it will be necessary to ascertain the position qua the right, title and interest of Ram Sarup and Amrik Chand in the land comprised in Khasra Nos. 159 and 160 of Mauza Bhangiar Khas, Tehsil Palampur, District Kangra, H.P on the date of award i.e. 10.12.1965.
19. As noticed earlier also, on facts learned Executing Court has found that before the passing of award dated 10.12.1965, Ram Sarup and Amrik Chand had jointly purchased 19 marlas of land in Khasra No. 160. In addition, Amrik Chand had individually purchased the -46- share of two marlas in the said land besides another 9 marlas of land purchased in Khasra No. 160 by Amrik Chand jointly with Jagat Ram. Thus, besides the joint share of 19 marlas of land of Ram Sarup and Amrik Chand in Khasra No. 160, Amrik Chand had another share of 6 ½ marlas and Jagat Ram had share of 4½ marlas. 19.1 In Khasra No. 159 Ram Sarup and Amrik Chand had jointly purchased 3 marlas of land besides purchase of 1kanal 9 marlas of land from Ishwari Prasad. Even if the transaction between Ishwari Prasad, Ram Sarup and Amrik Chand is construed to have transferred property rights only,Ram Sarup and Amrik Chand were already co-owner in the said land.
20. The factual position reflected by the Jamabandi for the year 1953-54 shows that the land comprised in Khasra No. 681/124 (Khasra No. 159) and 682/124 (Khasra No. 160) were part of a joint Khewat and as a matter of fact the land comprised in both these Khasra numbers was just a fraction of a composite Khewat having more than 98 khataunis.
-47-
21. It is not in dispute that all the above sale transactions with Ram Sarup and Amrik Chand had taken place before the arbitration award dated 17.08.1965. It being so, Ram Sarup and Amrik Chand had become co- sharers in the joint land alongwith the others.
22. Perusal of the sale deeds by virtue of which Ram Sarup, Amrik Chand and Jagat Ram had purchased lands reveal that these were with respect to specific Khasra Nos. 159 and 160. Similar is the case with the sale deeds through which objectors have purchased their shares in the land comprised in Khasra Nos. 159 and 160.
23. Learned Executing Court has given the benefit to the objectors of the purchases of shares by them from different co-sharers of Khasra Nos. 159 and 160, whereas it has failed to apply the same parameters to the case of Ram Sarup and Amrik Chand. Learned Executing as also the Appellate Courts have completely missed out at an important aspect of the matter. They have not been able to appreciate the legal position holding the field in right perspective. In a land jointly owned by co-sharers, it is not necessary that in the entire land actual physical -48- possession is also held jointly. Though, conceptually the possession is deemed to be joint, yet one or more co- owners can be in physical possession of a specific area of the joint land under some express or implied mutual arrangement inter-se the co-sharers. In such situation, the co-owner(s) holding possession of a specific area are permitted to sell his/their share(s) including such specific area and in that event the vendee steps into the shoes of such co-sharer and becomes a co-sharer with possession of specific portion of land. Indisputably, such arrangement holds good till the partition is effected between the co- owners of entire joint land.
24. Clause 8.37, Chapter 8 of the Himachal Pradesh Land Records Manual, reads as under:-
"A co-sharer in a joint holding, cannot transfer by way of sale, gift, mortgage or otherwise specific khasra number or its shares which is not in his possession. The Revenue Officer shall refuse mutation of such nature."
Emphasis added
25. It is clear from above provision that the bar to transfer any specific khasra number or a share in a joint holding operates only if such khasra number or share is -49- not in possession of the co-owners/sellers. As necessary corollary it will mean that in case a co-owner is in possession, he can sell a specific khasra number subject however to right of partition available to other co-owners. 25.1 The above concept has its genesis in Section 44 of the Transfer of Property Act, which reads as under: -
"Where one or two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and sofaras is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the condition and liability effecting, at the date of transfer, the share of interest so transferred."
Where the transferee of the share of dwelling house belonging to an undivided families not a people of the family, nothing in the Section shall be deemed to entitle him to a joint possession or other common or part enjoyment of the house"
26. Thus, the purchaser of share in a joint land, steps into the shoes of his predecessor and in such capacity can claim the right, title and interest including common or part enjoyment of the property. It needs no emphasis that all such rights exist till the partition of the -50- joint land between the co-owners at which stage all the rights, title and interest inter se the joint owners are finally settled.
27. Mr. Ajay Kumar and Mr. Rajneesh Maniktala, learned Senior Advocates have tried to place the above concept in a different context. According to him, there cannot be any transfer from joint land by a co-owner with specific portion. He would submit that if it is done it become antithetic to the concept of jointness of holding. He has placed reliance on the paragraphs 9 and 10 of the judgment passed by Hon'ble Supreme Court in Jai Singh and Ors. Vs. Gurmej Singh (2009) 15 SCC 747, which reads as under: -
"9. It is to be noted that the subsequent Full Bench judgment in Bhartu's case (supra) the earlier decision in Lachhman Singh's case (supra) was distinguished on facts. The principles relating to the inter-se rights and liabilities of co- sharers are as follows:-
(l) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.-51-
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies, that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.
10. It is thus evident that when a co-sharer is in exclusive possession of some portion of the joint holding, he is in possession thereof as a co-sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. Vendor cannot sell any property with better rights than himself. As a necessary corollary when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into -52- possession of the land in his possession what he transfers is his right as a co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all co-sharers."
27.1 Mr. Ajay Kumar and Mr. Rajneesh Maniktala, learned Senior Advocates have further placed reliance on Ramdas Vs. Sitabai and Others (2009) 7 SCC 444, which reads as under:-
"16. It is settled law under the Transfer of Property Act, that a purchaser cannot have a better title than what his vender had. The possession which is claimed by the defendant No. 3-Ramdas (appellant herein) in respect of the entire land bearing Gat No. 19 area admeasuring 2.56H of Mouza Padoli was also illegal and without proper sanction of law. So long as the property is joint and not- partitioned, the defendant no. 3-Ramdas (appellant herein) is not entitled to get possession of the said land. Even otherwise, the appellant herein having purchased the land from defendant No.1- Sudam could be entitled to be declared at the most to the extent of half share of the said piece of land having stepped into the shoes of his vendor and could not have asked for and claimed ownership and possession over the entire land of Gat No. 19 admeasuring 2.56 H.R.
17. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. -53- Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966 SC 470], wherein this Court stated as follows:
"5. Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co- parcener whose share he had purchased."
18. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under:-
"All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour."
(Emphasis added)
28. In Jai Singh's case (supra), the factual back ground was that right was claimed under Punjab Preemption Act in a joint land. It was held that even if a -54- specific portion of joint land possessed by vendor was transferred to the vendee, the rights are transferred as it is i.e. whatever right the vendor had, the same would be acquired by vendee and would be subject to final partition of Khewat in accordance with law. In this background, the right of a co-sharer, who had purchased the share in joint land under the Punjab Preemption Act, was upheld. 28.1 Even the proposition of law laid down in Jai Singh (supra) in paras 9 (7) & 10 the right of a co-owner in possession of specific portion of joint land to legally hold such possession till partition has been upheld. Similarly, the right of such co-owner in specific possession of part of joint land to transfer it to other as it is, has also been recognized.
28.2 In Ramdasscase (supra), the facts were that a property was joint between brother Sudam and Sister Sitabai which they had jointly inherited from their father Sukha in equal shares. The joint land was in four different parcels meaning thereby that Sudam and Sitabai had equal shares in all the four parcels of joint land. In the facts of that case, Sudam sold one of the complete parcels to Ram -55- Dass. The sale was challenged by Sitabai and it was held that Sudam could not sell more than his share in each parcel of land and hence, the sale to the extent it exceeded the share of Sudam was held to be bad in law. It will be relevant to reproduce paragraph-15 of the said judgment, which reads as under: -
"15. It could not also be disputed that all the aforesaid 4 plots of land which are the suit property were joint property and therefore, the plaintiff-Sitabai and defendant No. 1-Sudam owned and possessed half undivided share each in all the 4 properties. The defendant No.1- Sudam who is the brother of the plaintiff-Sitabai could not have therefore sold the entire Gat No. 19 area admeasuring 2.56H of Mouza Padoli in favour of the defendant No. 3- Ramdas (appellant herein) in as much as the aforesaid land was undivided and the plaintiff-Sitabai and defendant No. 1-Sudam were two co-sharers in the said property. In that view of the matter, the High Court was correct and legally justified in declaring the plaintiff- Sitabai as the owner and holder of half of the shares in all the four aforesaid properties which are undivided. The defendant No.1-Sudam being a co-sharer could not have sold by a registered sale deed more than his share nor could he have delivered possession till the said property is partitioned by the partiesamicably or through the intervention of the Court according to their share."
28.3. Thus, though in Ramdass (supra) the peculiar facts were the basis for observation made by Hon'ble Supreme Court, -56- yet it cannot be taken to have formulated a proposition antithetic to right of one of co-sharer to hold and protect his settled possession on specific part of joint land until disturbed by partition.
29. As noticed above, Ram Sarup and Amrik Chand had purchased shares from co-owners. It is not the case that vendor/co-owners had exceeded their shares. Even if any of such purchase is in excess of the share of the seller or even without right to do so, the same cannot be subject matter of adjudication in these proceedings. All such rights, title and interest of parties are determinable at the final partition of the joint land. Nothing has been brought on record to show that any of the contesting parties herein or any other joint owner has got the joint Khata partitioned, at any stage. Thus, the issues involved in the instant litigation are to be confined to specific limits and relevant to the context only.
30. With respect to the right, title and interest of the objectors on the land comprised in khasra Nos. 159 and 160, it can be seen that the learned Executing Court has exceeded its jurisdiction, in not only reopening the issues already -57- decided but also has entered into such arena, which was not relevant to the controversy.
31. The case of the objectors simpliciter was that they were holding possession of the lands comprised in khasra Nos. 159 and 160 in their own right. Such right was claimed by the objectors by virtue of having purchased shares in the land comprised in khasra Nos. 159 and 160 from their predecessor-in-interest.
32. At this stage, it will be necessary to notice the position of possession in respect of khasra Nos. 159 and 160 at the time when award dated 17.8.1965 was passed. As noticed above, Ram Sarup and Amrik Chand had acquired the status of co-sharers before the pronouncement of award. Till 3.8.1960, the possession of khasra No. 159 was with Sh. Ishwari Prasad. After execution of deed dated 3.8.1960, the possession was transferred in favour of Sh. Ram Sarup and Amrik Chand. Admittedly, before Ishwari Prasad, his father and predecessor-in-interest Beli Ram was in possession of khasra No. 159 through lessee and the lease was said to have been executed for fifteen years between 1953 to 1968. On execution of deed dated 3.8.1960, Ram Sarup and Amrik Chand had acquired the possession of khasra No. 159 -58- though only name of Amrik Chand was reflected in the records of right as possessor of the land. Similarly, in khasra No. 160, after the pronouncement of award dated 17.8.1965, Amrik Chand was recorded in possession, though it had to be the possession of both i.e. Ram Sarup and Amrik Chand.
33. Ram Sarup having noticed the discrepancies in the records of right had approached the Collector Kangra for correction of the entries. His application was allowed in the year 1991. Amrik Chand filed review petition against the order of Collector but remained unsuccessful as it was dismissed in the year 1996. Even otherwise, it was recorded in the award dated 17.8.1965 that 18 marlas of land in khasra No. 160 which included the house and shops of Amrik Chand would go to the share of Amrik Chand and the balance land in said khasra No. on which two shops and one latrine existing would fall to the share of Ram Sarup. None of the co-sharers have ever disputed the said factual position.
34. Hence, the question arises as to how the objectors have been successful to get the possession of the land comprised in khasra Nos. 159 and 160. As discussed above, under the decree, Amrik Chand was liable to hand over the possession of balance land of khasra No. 160 and entire -59- khasra No. 159 to Ram Sarup. Objector Rajesh Kumar is none else than the son of Amrik Chand. It has also come on record that subsequently, both the objectors i.e. Sanjeev Kumar and Partap Chand had transferred their respective shares in the land comprised in Khasra Nos. 159 and 160 in favour of objector Rajesh Kumar. As I have already held above that the transfer of share in joint land with possession of a specific khasra number or part is permissible. On such analogy, the decree holder Ram Sarup and judgment debtor Amrik Chand were holding lawful possession of khasra Nos. 159 and 160 and none of the other co-sharers were holding such possession. That being the factual position, the objectors though had purchased certain share in the land comprised in khasra Nos. 159 and 160, but they cannot be said to have been put in possession thereof, as none of the other co-sharers were in actual possession. The possession was only with Ram Sarup and Amrik Chand and hence the necessary inference is that Amrik Chand had transferred the possession to his son Rajesh Kumar and other associates namely Sanjeev Kumar and Pratap Chand. This hypothesis is corroborated by an entry in the remarks column of jamabandi 1975-76 in which, it is mentioned that Amrik -60- Chand had leased out the land in khasra No. 159 to Rajesh Kumar for a period of twenty years. In the objections filed before the learned Executing Court by Rajesh Kumar, it has specifically been mentioned that he had been holding the possession of land in khasra No. 159 since 1976 and had developed the same thereby raising constructions from time to time. Objector Rajesh Kumar though has not rendered any explanation as to how he had acquired the possession of khasra No. 159 or 160, but the same gets clarified by the aforesaid entry recorded in remarks column of the jamabandi for the year 1975-76.
35. Thus, it can be safely held that the objectors had entered into the possession over land in khasra Nos. 159 and 160 in connivance with Amrik Chand against whom a decree for possession had been passed on 19.3.1975 and this decree was nothing but the affirmation of arbitration award dated 17.8.1965. In this view of the matter, the possession of objector cannot be said to be lawful and they cannot protect it under the provisions of Order 21 Rules 97 to 106 of the code. Even otherwise, the holding of such possession by the objectors is hit by Rule 102 of Order 21 according to which, nothing in Rules 98 to 100 applies to resistance or -61- obstruction in execution of decree for possession of immoveable property by a person to whom the judgment debtor has transferred the property after the institution of the suit in which, the decree was passed or to the dispossession of any such person.
36. The learned Executing Court has also failed to take notice of provisions of Rule 98 (2) of Order 21 of the Code, wherein the resistance or obstruction, if is occasioned by a third person at the instigation or on behalf of judgment debtor or by any transferee where such transfer was made during the pendency of the suit or execution proceedings. Since, in the facts of the instant case, the obstructionists/ objectors were clearly working on the instigation of the judgment debtor and even if they were held to be transferees, such transfers were made during the pendency of the executing proceedings, the objectors were not entitled to any relief in the proceedings before the Executing Court. Needless to say that the only remedy available to them is to seek partition of joint land in accordance with law.
37. Accordingly, the substantial questions of law at serial Nos. 1 and 4 are answered in affirmative and all other questions are decided in negative.
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38. In light of above discussion, the appeal is allowed. Judgment and decree dated 4.12.2017, passed by the learned District Judge, Kangra at Dharmshala, H.P. in Civil Miscellaneous Appeal No. 22-P/XIII/2003, whereby the order dated 8.9.2003, passed by the learned Executing Court was affirmed, are set aside. The objections of the objectors under Order 21 Rules 97 are dismissed. The Executing Court is directed to execute the decree strictly in accordance with law.
39. The appeal stands disposed of in above terms so also the pending application(s) if any.
(Satyen Vaidya) 23rd June, 2025. Judge (kck)