Punjab-Haryana High Court
Rajdip Singh And Anr. vs Smt. Joginder Kaur And Ors. on 10 July, 1990
Equivalent citations: (1991)99PLR365
ORDER A.L. Bahri, J.
1. Hajdip Singh and another objectors have challenged in this revision order dated October 19, 1989, passed by Sub Judge I Class, Dasuya, dismissing the objections filed in the execution
2. Sher Singh owned about 489 Kanals and 11 Marlas of land in 1961. He died leaving a registered will dated December 27, 1955 in favour of Joginder Kaur and Jagdish Kaur, his grand-daughters. Sant Kaur and Balwant Kaur, his daughters got mutations sanctioned in their favours in respect of 1/2 share of land on the basis of another will dated May 3, 1960 Sant Kaur and Balwant Kaur filed a suit regarding remaining half share on the basis of the aforesaid will. The suit was dismissed holding will dated May 3, 1960 to be a forged one and upholding the will dated December 27, 1955. Inspire of that Sant Kaur and Balwant Kaur did not surrender possession of half share of the land which they had obtained. In the meantime, Joginder Kaur and Jagdish Kaur filed a suit for possession of half snare of land which remained with Sant Kaur and Balwant Kaur. The trial Court decreed the suit on November 29, 1973. However, on appeal the said decree was set aside. The High Court in Regular Second Appeal No. 1722 of 1977, while allowing the same, set aside the judgment and decree of the lower appellate Court and restored the judgment and decree of the trial Court. In the meantime Balwsnt Kaur died. Gurbachan Kaur took up the matter in Special Leave Petition before the Supreme Court. It was finally dismissed on September 14, 1987. The decree-holders Joginder Kaur and Jagdish Kaur moved execution application for half share of the land against Sant Kaur and others including Gurbachan Kaur. It was during pendency of this execution application that Gajinder Singh and Rajdip Singh aforesaid filed objections inter alia claiming that they were terants of Sher Singh and that decree could not be executed against them as they were not parties thereto. They further took up the plea that the decree was merely decleratory and possession could cot be obtained in execution of the decree. These objections were dismissed as stated above.
3. The decree passed in the case is not merely decleratory but a decree for possession was passed and hence objection regarding maintainability of the execution application obviously cannot be sustained.
4. The question for consideration is as to whether the objection petition was maintainable at the instance of Gajinder Singh and Kajdip Singh, or they should first surrender possession in execution of the decree and then raise objections or take appropriate remedy since they are not parties in the suit which was decreed. This matter has already been decided on the judicial side by this Court In Harijan Wood Workers Production-cum Sales Co-operative Society Ltd. v. Smt. Maya Wati, A. I. R. 1985 Punj. 181. a Division Bench of this Court held as under :-
"From a bare reading of Rules 97 and 99 of Order 21, it is clear that if a decres-holder is resisted or obstructed by any person in obtaining possession of the property, he can make an application under Rule 97 complaining of the resistance or obstruction The person causing resistance or obstruction is not entitled under that rule to make an application. However, if the decree holder makes the necessary application the person causing resistance or obstruction is entitled to defend his conduct. At that stage he is entitled to be defensive but cannot take an offensive step. In case he wants to take such a step he can do so under Rule 99 but after surrendering possession. The Rule has to be framed to protect the decree- holder from frivolous claims by third persons Therefore, any person other than the judgment-debtor cannot file an Objection petition under Rule 97 on ground that he is not liable to ejectment in execution of a decree obtained by the decree-holder against the judgment-debtor."
The above view was followed in Tara Wati v. Balkishan, 1985 H. R. R. 79. and Gurdial Singh v. Ram Pal, 1985 R. L R. 217. by S S Kang, J. In view of the rule of law as laid down in the aforesaid judgments, objections on behalf of Gajinder Singh and Rajdip Singh were not maintainable.
5. It has further been argued that Gajinder Singh and Rajdip Singh could not be held to be tenants of Sher Singh as a receipt alleged to have been executed by Sher Singh regarding chakota was held to be a forged one by the Revenue Authorities. The contention of the counsel for the petitioners is that the decision of the Revenue Authority in that respect was not binding on the civil Court and independently the evidence produced by the objectors was to be considered. This contention cannot be accepted. When this receipt was produced before the Revenue Authority who was exercising powers under the Land Revenue Act, the decision cannot be held to be without jurisdiction or without only authority of law. Even otherwise, this receipt has been brought to light only after the death of Sher Singh. It is highly improbable that Sher Singh would have got a sum of Rs, 6,000/- from his grand children a chakota and inducted them as tenants The litigation continued for a pretty long time and as already stated above. Gurbachan Kaur had been prosecuting the suit at the stage of Supreme Court. At no stage she disclosed that the land was under tenancy of the present objectors. Much importance cannot be attached to the Khasra Girdawari entries produced in this case. Exs. 0 9 and 0.10 relating to the year 1953-64, to 1967-68 and 1968-69 to 1972-73. respectively, wherein names of Gajinder Singh and Rajdip Singh as tenants on payment of 1/2 batai ware mentioned and subsequently their names disappeared Exhibit 0.12 is Khasra Girdawari for the year 1977-78 and Exhibit 0.13 is for the year 1986-87. The names of Gajinder Singh and Rajpal Singh are not mentioned therein. Furthermore, it has come on the record that Gajinder Singh was merely managing the land of Sher Singh. As manager he could not be treated as tenant. This reference was made in the judgment of Shri A. K. Sharma, Sub Judge I Class, while decreeing the suit in the present case. This observation was made on the statement of Gijinder Singh who appeared as DW 2. He himself stated that he had been managing the suit land after the death of Sher Singh. This Gajinder Singh is son in law of Balwant Kaur aforesaid. Thus on the evidence produced, both the petitioners have failed to prove that they were tenants over the suit land.
6. Finding no merit in the revision petition, the same is dismissed with costs.