Himachal Pradesh High Court
Shri Durgesh Narayan & Anr vs Shri Vir Narayan Singh on 24 August, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
HO'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMPMO No.216 of 2017
Reserved on: July 11, 2018
Decided on: August 24, 2018
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Shri Durgesh Narayan & Anr. ..........Petitioners
Versus
Shri Vir Narayan Singh ........Respondent
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes.
For the petitioners : Mr. Virender Singh Chauhan,
r Advocate
For the respondent : Mr. Karan Singh Kanwar, Advocate
Vivek Singh Thakur, J.
This petition, arising out of a dispute from a litigation pending for partition of the property owned and possessed jointly by the parties, has been filed, assailing the impugned order dated 03.05.2017 (Annexure P-7), passed by learned Civil Judge (Sr. Division), Sirmour at Nahan (H.P.) (in short trial Court), in an execution petition, i.e. application filed on behalf of the applicant-decree holder, for issuance of warrant of possession for delivery of possession on the basis 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 2of final decree of partition dated 04.05.2013. Vide impugned order, objections preferred by the judgment debtors for second time, have been dismissed by the trial Court.
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2. Brief facts, as emerge from the record as well as submissions of learned counsel for the parties, are that in a suit preferred by the respondent-decree holder for partition, a preliminary decree was passed on 10.04.2012. It is undisputed that at the time of passing of the said decree parties were duly represented in the trial Court. In pursuance to preliminary decree, Local Commissioner, appointed by the Court, visited the spot, conducted proceedings and prepared his report dated 06.01.2013 (Annexure P-1) and submitted it in the Court. On the basis of the said report, final decree (Annexure P-2) was passed on 04.05.2013. Thereafter, in August, 2013, respondent-decree holder had filed an application for delivery of possession in compliance of final decree, wherein objections dated 07.06.2014 (Annexure P-3) preferred by petitioners-judgment debtors, were dismissed by the trial Court on 14.09.2016.
::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 3Against the said dismissal, petitioners-judgment debtors had approached this Court by filing CMPMO No.446 of 2016, a petition under Article 227 of the Constitution. The said .
petition, lateron, was permitted to be withdrawn vide order dated 03.03.2017 (Annexure P-5) with liberty to file appropriate proceedings in accordance with law including filing a fresh petition before the High Court, if so required.
Thereafter, on 03.05.2017, petitioners-judgment debtors had preferred fresh objections (Annexure P-6) in the execution petition/application which were dismissed by the trial Court on the very same day vide impugned order (Annexure P-7).
3. After submission of the report by the Local Commissioner, at the time of passing of final decree, petitioners-judgment debtors had chosen not to be represented in the Court and as a result thereof, exparte decree for final partition was passed. After one year of filing of the execution petition, petitioners-judgment debtors have also preferred an application under Order 9 Rule 13 of the Code of Civil Procedure (AnnexureP-4) for setting aside the ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 4 exparte decree alongwith an application for condonation of delay (Annexure P-4 colly) in filing the same, which is pending before the trial Court.
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4. It is undisputed that Local Commissioner had visited the property in issue on 13.12.2012 and 06.01.2013 and after recording statements of Vir Narayan Singh decree holder and Durgesh Narayan judgment debtor regarding their presence and assent for conducting proceedings, he had measured the land/property in question in presence of both the parties whereupon he had found that about 10.80 square meters area was in possession of the petitioners-judgment debtors in excess to their share and there was deficiency of almost equal area in the share of property in possession of respondent-decree holder. Thus, he had reported that on giving Khasra No.1242/2 (10.80 square meter) to the respondent-decree holder, both the parties would be in possession of equal shares, i.e. 118.43 square meters and 118.30 square meters, respectively. However, in the report, Local Commissioner had also reported that there was a ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 5 construction raised by the petitioners-judgment debtors on the Khasra No.1242/2, for which they had to be compensated by paying cost of the said construction to them.
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5. After completion of task of Local Commissioner, Vir Narayan Singh, decree holder, had assented to the report prepared by the Local Commissioner, whereas as reported by Local Commissioner in his report, Durgesh Narayan-judgment debtor had not assented to the proceedings of the partition under taken by Local Commissioner and had refused to give statement on behalf of judgment debtor.
6. Despite having knowledge that Local Commissioner had submitted the report to which he had refused to assent, Durgesh Narayan-judgment debtor had chosen not to be represented in the Court and also not to prefer any objection(s) to the said report before or even after passing of final decree for partition based on the said report.
7. In the aforesaid circumstances, final decree was passed and equal share(s) of land/premises was ordered to be allotted to the parties as per report of Local ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 6 Commissioner. The report of Local Commissioner and tatimas prepared by him, were also made part of the decree.
8. In aforesaid background, present petition has .
been filed on the ground that as an application for setting aside the exparte final decree is pending before the trial Court, therefore, before dealing with the objections filed by the petitioners against issuance of warrant of possession, trial Court should have decided the said application first to avoid miscarriage of justice. Another ground put forward is that now dispute is only with respect to area measuring 10.82 square meter, comprised in Khasra No.1242/2, whereupon the petitioners-judgment debtors have raised construction and the same is in their possession as also reported by Local Commissioner and further that Local Commissioner, in his report, has recommended that in lieu of handing over the said area to respondent-decree holder, value of construction of the said structure is to be paid to the petitioners-judgment debtors, but at the time of passing of final partition decree, the said fact was not taken into ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 7 consideration by the trial Court and even at the time of deciding the objections filed by petitioners-judgment debtors, trial Court had ignored the said portion of the report.
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9. According to learned counsel for the petitioners-
judgment debtors, in the objections filed earlier, Khasra Nos.
to the property were mentioned incorrectly and therefore, the said petition, preferred in this High Court, i.e. CMPMO No.446/2016, was withdrawn with liberty and thereafter, fresh objections were preferred with correct Khasra Numbers.
Therefore, it was incumbent upon the Executing/trial Court to consider the objections and decide the same by passing detailed and reasoned order.
10. To the contrary learned counsel for the respondent-decree holder has submitted that Local Commissioner had visited the spot, measured the property and prepared the report in presence of the parties or their representatives, who were actually pursuing the matter and despite that petitioners-judgment debtors had not objected the report in the Court before or even after passing of final ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 8 decree and further that the said final decree has been passed in accordance with law and in consonance with the report prepared made by Local Commissioner. It is further .
submitted that earlier, objections preferred by the petitioners-judgment debtors, were dismissed by the Executing/trial Court and petition preferred against the said dismissal was dismissed as withdrawn and therefore, order passed in those objections had attained finality. It is further submitted that liberty was reserved for petitioners-judgment debtors to file appropriate proceedings in accordance with law, but the same is of no help to petitioners-judgment debtors as successive objections in the execution proceedings are not permissible, particularly when dismissal of the objections filed earlier, has attained finality.
11. It is also argued by learned counsel for the respondent-decree holder that though the Local Commissioner has reported about the construction raised on 10.80 square meters area, proposed to be allotted to the respondent-decree holder, but the said structure was not ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 9 there at the time of filing of partition suit and the said construction was raised by petitioners-judgment debtors during pendency of the suit despite the restraint order .
passed by the trial Court and therefore, the petitioners-
judgment debtors are not entitled for any amount in lieu of the said structure, rather they are liable to pay for removal of the said illegal structure.
12. In present case, preliminary decree was passed on 10.01.2012, in pursuant whereof Local Commissioner had visited spot on 23.12.2012 and 06.01.2013, in presence of decree holder Vir Narayan Singh and one judgment debtor Durgesh Narayan and had undertaken measurement etc. on the spot after recording the statements of Vir Narayan Singh and Durgesh Narayan, endorsing their presence on the spot.
It was specifically observed by Local Commissioner in his report that land measuring 10.80 square meter, comprised in Khasra No.1242/2, adjacent to house of decree holder Vir Narayan Singh, was in possession of judgment debtor Durgesh Narayan and he had constructed room thereupon ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 10 and was not willing to part with the said structure, whereas decree holder Vir Narayan Singh was ready to accept the said proceedings. Thereafter, it is also mentioned in the report .
that if land measuring 10.80 square meter, comprised in Khasra No.1242/2, was allotted to decree holder Vir Narayan Singh, both parties would be having equal share, i.e. 118.43 square meter and 118.30 square meter with each party, but Durgesh Naryan, judgment debtor, would be entitled for cost for construction raised upon Khasra No.1242/2 and Vir Naryan Singh, decree holder, had accepted the report of Local Commissioner, whereas judgment debtor Durgesh Naryan had refused to make a statement for its acceptance.
Report was submitted in the Court. Judgment debtors were proceeded exparte for want of their representation in the Court and ultimately, final decree was passed on 04.05.2013 by allotting the Khasra Numbers to respective parties as per report of Local Commissioner with specific mention that report of Local Commissioner and Tatimas prepared by him, shall become part of the decree.
::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 1113. On 29.08.2013, decree holder filed an application/execution petition No.137/6 of 2013 in the Trial/ Executing Court, whereafter, upon service in application/ .
execution petition, judgment debtors preferred objections dated 07.06.2014 (Annexure P-3), which were dismissed by the trial Court vide order dated 14.09.2016 (Annexure P/3-A).
In these objections, it was contended that Local Commissioner had undertaken the proceedings in absence of one of the judgment debtors, i.e. Poonam, who, as also mentioned in the report of Local Commissioner, was at Dubai at that time and in spite of reluctance of judgment debtor Durgesh Narayan to part with double storey room, being allotted to the share of decree holder Vir Narayan Singh, Local Commissioner had wrongly given the said portion to decree holder and further that it was proposed by Local Commissioner that in the eventuality of allotting the said portion to decree holder Vir Narayan Singh, a value of construction raised on the said portion should be paid to judgment debtor Durgesh Narayan for the construction raised ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 12 on the said portion of the land. These objections were rejected by the trial Court on the ground that objection regarding improper mode of partition was not available to .
judgment debtors at that stage as the Executing Court could not travel beyond decree and had to act upon it according to the affirmed mode of partition specified in the final partition decree.
14. Plea with regard to absence of judgment debtor No.2 Poonam was rejected for the reasons that she was found to be duly represented by judgment debtor No.1 Durgesh Narayan, who was contesting the claim on her behalf also.
15. Dismissal of objections was assailed in this Court vide CMPMO No.446 of 2016. As referred supra, the said petition was dismissed as withdrawn on 03.03.2017 and the objections (Annexure P-6) preferred thereafter, have been dismissed by the trial Court on 03.05.2017 vide impugned order Annexure P-7, on the ground that the objections preferred by judgment debtors were objections to Local ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 13 Commissioner's report which already stood acted upon at the time of passing of final decree and objections, preferred in execution proceedings at earlier point of time, were also .
disposed of on 03.01.2014 and in these circumstances, successive application preferring objections was dismissed as not maintainable.
16. In the successive objections as well as in application for setting aside exparte order, the fact mentioned in the report that after allotment of Khasra No.1242/2, measuring 10.80 square meter to decree holder, both parties would be in possession of equal share in the property, has not been disputed. The crux of these objections is that there is a double storey room constructed on the said land by judgment debtors, in lieu of which, payment of value thereof was proposed to be paid to judgment debtor in the report of Local Commissioner, but the same has not been taken into consideration at the time of filing the final decree.
In objections dated 07.06.2014, it specifically mentioned that decree holder has to pay the expenses incurred upon the ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 14 construction or judgment debtors has to be permitted to remove deficiency in the share of decree holder by other means. Similarly, in successive objection (Annexure P-6), also .
it is averred that decree holder Vir Narayan Singh remained reluctant either to pay cost of the construction or to sell out the land measuring 10.80 square meter to judgment debtors and further that either decree holder be directed to pay the expenses incurred upon the construction of house, as mentioned in the report of Local Commissioner, or judgment debtors would complete the deficit share of decree holder from the other vacant land. It is apparent that admission of deficiency of 10.80 square meter in the share of decree holder is writ large and the main objection, raised by judgment debtors, is that the value of construction is not being paid to them as suggested by Local Commissioner in its report.
17. It is also canvassed on behalf of judgment debtors that the trial Court had rejected their objections on the ground that it cannot travel beyond the decree and as such, ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 15 plea of judgment debtors that a decree passed on the basis of a portion of report of Local Commissioner, but ignoring the another part is not sustainable, has been rejected and .
therefore, construction of the application of judgment debtors filed for setting aside the exparte decree first was imperative before proceeding further.
18. On perusal of final decree (Annexure P-2), it emerges that it has been specifically mentioned in it that report of Local Commissioner and Tatimas prepared by Local Commissioner, shall become part of the decree. Therefore, entire Local Commissioner's report including the portion suggesting the payment of value by decree holder of construction raised upon Khasra No.1242/2 to judgment debtor Durgesh Narayan, is also part of the decree.
Therefore, plea of judgment debtors that portion of Local Commissioner's report has been ignored at the time of passing of decree, is misconceived and also, at the same time, it would be incorrect to say that acceptance of prayer of judgment debtors, seeking direction for payment of cost of ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 16 construction by decree holder to judgment debtors, would amount travelling beyond decree, rather it would be in consonance with the final decree.
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19. The objections preferred by decree holder before the trial Court are to the report of Local Commissioner, whereas the said report has been merged in final judgment and decree passed on 04.05.2013. Such objections could have been preferred after submission of report, but before passing of final judgment and decree, however, certainly not in execution proceedings. The execution is always in consonance with the terms of judgment and decree and thus, the objections against the report of Local Commissioner are not maintainable in execution proceedings, but if there is any lapse on the part of the Court in executing the decree by ignoring the terms of the said decree, the objections in that regard would certainly be maintainable. Condition of payment of value of construction raised upon Khasra No.1242/2, as mentioned in Local Commissioner's report, is also part of final judgment and decree and the trial Court should have adopted ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 17 a legal and reasonable mode to determine the value of said construction and should have proceeded further by issuing warrant of possession in consonance with final decree, .
subject to payment of determined value of the construction, existing upon Khasra No.1242/2, to judgment debtors by decree holder.
20. From the pleadings and submissions in present petition, it emerges that controversy between parties is only with respect to Khasra No.1242/2 and structure standing thereupon, which is in possession of judgment debtors.
Grievance of judgment debtors is that before transferring the possession of the said area, they are not being compensated for value of construction raised upon Khasra No.1242/2 and in alternative they are ready and willing to complete the deficit share of decree holder from another vacant land.
21. Considering aforesaid facts and circumstances in entirety, I am of the opinion that no fruitful purpose will be served by keeping the execution proceedings pending to wait for outcome of application filed by judgment debtors under ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 18 Order 9 Rule 13 of Code of Civil Procedure alongwith an application under Section 5 of Limitation Act for condonation of delay, especially when, as mentioned in the latest .
objections dated 03.05.2017, preferred by judgment debtors that in the said proceedings, application under Section 5 of Limitation Act is yet to be decided.
22. In view of above circumstances, it would not be in the interest of justice and parties so as to wait for outcome of application moved by judgment debtor-petitioner for setting aside final decree, rather it would be appropriate to resolve the same in execution petition itself, as grievance of judgment debtor-petitioner already stands addressed in the report of Local Commissioner which has been made a part of decree. Therefore, trial Court is directed that before proceedings further for transferring the possession, the structure standing upon Khasra No.1242/2, be evaluated through an expert, if possible with consensus of parties, otherwise by order of the Court and issue warrant of ::: Downloaded on - 24/08/2018 23:10:05 :::HCHP 19 possession after payment of the said value by decree holder to judgment debtors.
23. Pending adjudication present petition, an .
unsuccessful attempt was made in the Court for amicable settlement of dispute. Keeping in view subject matter in dispute and fact that parties are closely related to each-
other, it is observed that the parties are still at liberty to resolve the dispute with an amicable settlement, if so advised and intended. But the matter shall not be adjourned or delayed under the garb of effort for settlement.
24. The petition is disposed of in aforesaid terms.
Interim stay also stands vacated. Pending application(s), if any, shall also stand disposed of accordingly, with direction to the parties to appear before trial/executing Court on 31st August, 2018.
(Vivek Singh Thakur)
August 24, 2018 Judge
(Yashwant)
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