Punjab-Haryana High Court
Dhian Chand And Anr. vs Parkash Kaur And Ors. on 18 August, 1977
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 221
ORDER
1. This litigation relates to land comprised in three khasra numbers, i.e., five marlas in khasra No. 1021, two marlas in khasra No. 1023 and 11 marlas in khasra No. 1019 situate in village Batala Gharbi. The decree--holder respondents obtained a decree for possession of the entire land in dispute against the judgment--debtor--respondents. The suit in which the decree was passed had been based on the allegation that the sale of different pieces of land in favour of Gurdial Singh and Ajaib Singh judgment--debtor--respondents by Harbans Lal respondent in this purported capacity of an attorney of the then owner of the land were unauthorised as the power of attorney in favour of Harbans Lal had been cancelled before the sales were effected. Harbans Lal attorney appeared in the suit and admitted the allegations of the plaintiff--decree--holders. Gurdial Singh vendee did not appear in spite of service and the suit proceeded against him ex parte. Ajaib Singh vendee put in appearance but did not contest the suit. These were the circumstances in which the decree now under execution was passed. When the decree was sought to be executed, it was reported that the petitioners before me were in possession. These petitioners filed objections against the execution of the decree on or about July 25, 1976. Objections against the execution of the decree are reproduced below:
"(a) that the suit between the parties is a collusive one and the J. D. defendants had suffered a decree in respect of the property in which they have got no right, title or interest. This was a fraudulent device of the parties to the present suit to arm the plaintiffs D. Hs. with some sort of authority to take possession of the suit land either with the help of force or illegal police help on the basis of the warrant of possession issued by this Hon'ble Court.
(b)That the present objectors are not a party to the suit and are not bound by the decree passed in favour of the plaintiffs D. Hs. They being rightfully in possession of the suit property cannot be ejected therefrom on the basis of a decree passed against some third person. The present objectors are in actual possession in their own right.
(c) That the factum of the possession of the present objector is well within the knowledge of the present decree--holders. In fact they had filed "a suit No. 240 in the Court of Shri O. P. Garg, Sub Judge IInd Class, Batala, for the possession of land comprised in Khasra No. 1019 against the present objectors. The suit of the present plaintiffs as against the present objectors was dismissed with costs by the said Court on 20-8-1975.
Similarly a suit for possession of land comprised in Khasra No. 1023 was filed by the present plaintiffs against the present objectors in the Court of Sh. M. S. Chawla. Sub Judge IInd Class, Batala, and the same was also withdrawn by the present plaintiffs on 16-1-1976.
(d) That the plaintiffs D. Hs. have got no right, title or interest in the suit property."
In the corresponding paragraph of the written reply (to the objections) filed by the decree--holders it was contended as below:--
"(a) Sub--para (a) is totally incorrect. It is denied that the suit was collusive between the parties. It is further denied that there was any fraudulent device between the parties to file the present suit. The rest of the sub--para contains wrong allegations and is denied by the decree--holder.
(b) Sub--para (b) is also absolutely wrong. The objectors are neither in possession nor they have got any interest or title to the decreed land. It is denied that the objectors are in actual possession of the land in dispute in their own right. It appears that the previous J. Ds. have colluded with the objectors and they have set up the present objectors to cause harassment and delay to the execution of the present decree as well as to the decree--holder.
(c) Sub--para (c) of the objection petition is wrong. It is denied that the objectors are in possession of the property in dispute. As submitted above, the objectors have absolutely no connection with the land in dispute. The alleged suit was not decided on merits by Shri O. P. Garg and the same was simply withdrawn by the plaintiffs in that case. The decision of that suit has absolutely no effect on the present decree. The said suit was filed out of sheer mistake and under wrong impression. Similarly the other alleged suit was also wrongly filed due to mistake and hence the same was also not decided on merit but was withdrawn.
(d) Sub--para (d) is also incorrect. The objectors have no right to question the title of the decree--holder."
2. From the above--quoted objection--pleadings of the parties, the executing Court framed the following issues:--
"(1) Whether the objectors are in actual possession of property in dispute in their own right? If so, since when and to what effect? OPO.
(2) Whether the decree is collusive as alleged in the objection petition?"
3. Subsequently the objectors filed an application dated Oct. 23, 1976, under O. 14 R. 5 of the Code for recasting and amending the issues already framed by the Court. They prayed that the issues already framed by the court should be substituted by the following issues:--
"(1) Whether the objectors are in possession of the suit property under some arrangement with the J. Ds. as alleged? OPDH.
(2) Whether the decree--holders are entitled to get the decree in dispute executed against the objectors? O. P. D. H. (3) Whether the application for getting of fresh warrant of possession is maintainable in view of the execution of the previous warrant?"
By the order under revision the executing Court partially allowed the application of the objector--petitioners and without making any change in the two issues already framed added a third one thereto in the following language:--
"(3) If issue No. 1 is proved, whether decree--holder is entitled to get the decree executed against the judgment--debtor?"
4. Not satisfied with the order of the executing Court, the objectors have come up in revision to this Court. Mr. Dharam Vir Sehgal, the learned counsel for the objector--petitioners, has no objection to issue No. 2 as originally framed and issue NO. 3 as now framed and issue No. 3 as now framed remaining intact subject to what he has argued on the matter relating to issue No. 1. He has also not pressed the prayer in the original application for framing the third suggested issue relating to the claim that fresh warrant of possession could not be issued in view of the report on the previous warrant. Counsel has, however, contended that framing of issues is not a pure matter of law but depends on the facts, circumstances and pleadings of given case. His main submission is that, in the light of the undisputed or admitted facts of the present case, the burden of proving the executability of the decree against the objectors should be placed on the decree--holders and not on the objectors who were admittedly not parties to the present litigation. In order to appreciate the detailed submissions of the learned counsel and to notice and deal with them, it appears to be proper to briefly survey the relevant part of the previous history of the litigation relating to the land in dispute or different parcels thereof.
5. It is the admitted case of both sides that on or about Dec. 6, 1974, the decree--holders filed a suit against the objectors for a mandatory injunction directing them to remove and demolish the existing structure on the land demarcated as AB CD in pink colour in the map attached with the plaint of that suit of which the detailed boundaries were mentioned in the plaint of that suit of which the detailed boundaries were mentioned in the plaint and which was described as part of khasra No. 1019 as entered in the copy of the jamabandi for the year 1969-70, which land admittedly formed part of the land covered by the present suit. It was further claimed in that suit. It was further claimed in that suit that the defendants (present objectors) be directed by injunction to restore the said land to its original position. Perpetual prohibitory injunction was also claimed against the present objectors restraining them from changing the nature of the said land by raising any construction on the same. It is admitted that the present plaintiff--decree--holders represent the estate of late Mohan Lal son of R. R. Bhalla, resident of Batala. In the plaint of the suit for mandatory injunction it had been alleged that Mohan Lal aforesaid was the owner of 111/119 share along with the share in the shamlat of the said khasra number and that the remaining 8/119 share of the suit land belonged to the defendants i.e., the present objectors, that the defendants were the co--sharers in the said land to the extent of 8/119 and an area of about six marlas came to their share, as the remaining portion of the land comprised in the said khasra number was stated to be already in the possession of the defendants whereby they (defendants) were alleged to be in possession of more than their share in khasra number 1019. By its judgment and decree dated Aug. 26, 1975, the Court of the Subordinate Judge, Batala, dismissed the said suit of the decree--holder--respondents as being not maintainable. A certified copy of the judgment of the trial Court in that suit has been shown to me by the counsel for the parties. That was Suit No. 240 of the Court of Shri O. P. Garg, Sub Judge Second Class, Batala, instituted on Dec. 6, 1974, and decided on Aug. 26, 1975.
Sometime later, the decree--holder respondents filed a suit against the present objectors for possession of the land comprised in Khasra No. 1023. That suit was, however, withdrawn by the decree--holder--respondents on Jan. 16, 1976, and was, therefore, dismissed. Execution of the decree obtained by the decree--holder--respondents against the judgment--debtor--respondents was then taken out in the present case in March, 1976. The only other thing which has to be kept in view while deciding this petition is that it is the common case of both sides that these proceedings have to be decided under the old amended Code of Civil Procedure of 1908. The relevant facts which are very vocal in this case and which emerge are that, according to the decree--holder--respondents themselves, the objectors were in possession of part of Khasra No. 1019 and of Khasra No. 1023 when the earlier two suits were filed, that, according to the report of the bailiff on the warrant for possession issued against the judgment--debtor--respondents, the objectors are in actual possession of the entire land in dispute, that the decree--holder--respondents had themselves claimed that the objector--petitioners were co--sharers in Khasra No. 1019, that the petitioners were not impleaded as parties to the present suit and are not, therefore, bound by the decree under execution and that, notwithstanding the knowledge of the above--mentioned facts and the report of the bailiff, the decree--holder--respondents did not choose to make an application in the executing court under O. 21, R. 98 but created a situation in which the objectors were forced to approach the Court under R. 99 of O. 21.. Even now the stand taken by the learned counsel for the decree--holder--respondents is that his clients are not executing the decree against the objectors but are simply executing the decree against the judgment--debtor--respondents.
6. Rules 98 and 99 of O. 21 of the unamended Code provide as below:--
"98. Where the Court is satisfied that the resistance or obstruction was occasioned without and just cause by the judgment--debtor or by some other person at his instigation, it shall direct that the appellant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment--debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days.
99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (Other than the judgment--debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment--debtor, the Court shall make an order dismissing the application."
A mere reading of the aforesaid two provisions makes it clear that a person of immovable property can be dispossessed by the decree--holder in execution of his decree if the person in possession is either the judgment--debtor or represents the estate of the judgment--debtor or if he, though not a judgment-debtor, is resisting the execution of the decree at the instigation of the judgment--debtor. Possession cannot be obtained by decree--holder from a third person obstructing the execution of the decree if the Court is satisfied that such third person is claiming in good faith to be in possession of the property either on his own account or an account of some person other than the judgment--debtor. Since no application has till now been made by the decree--holders alleging that the objectors are obstructing the execution of the decree at the instigation of the judgment--debtors, the main question that will have to be directly determined in the present application is whether the objectors, who are prima facie in possession of the property, are bona fide claiming to be in such possession on their own account or on account of some person other than the judgment-debtors. This is no doubt something in the knowledge of the objectors. Learned counsel for the respondents has in this respect invited my attention to the judgments of the Calcutta, Allahabad and Madras High Court in Deo Karan Agarwalla v. Satyendra Ghosaul AIR 1959 Cal 621; Hira Lal v. Hari Narain, AIR 1964 All 302; and Ramaswami Nadar v. Shanmugha Malavarayan, AIR 1928 Mad 909(1). The ratio of the judgments in all these cases is that all that the Court has to see in an obstruction proceeding like the present one is whether the resistance occasioned by the objector can be said to be by a person who claims in good faith to have a right to be in possession on his own account or on account of some person other than the judgment--debtor. There is no quarrel with this proposition of law. In almost all the above--mentioned cases, however, the learned Judges have made it clear that the matter has to be viewed in the background of all the circumstances of a given case and that it is not lightly that a Court should allow its coercive process to be utilised by a decree--holder without considering seriously the nature of the objections raised by the resister. It has also been held (in Deo Karan Agarwalla's case (supra)) that in order to succeed in defeating the attempt of the decree--holder to get delivery of possession through the coercive process of the Court. It is not necessary that the objector must establish definitely his right to be in possession of the property on his own account or on account of some person other than the judgment--debtor.
7. Applying this state of law to the facts of the present case, it appears to me that the order of the Court below has been passed with material irregularity and illegality. In exercise of its jurisdiction under Order 14 rule 5 of the Code. It appears that the learned Subordinate Judge looked only to the provisions of O. 21 R. 99 divorced from the pleadings of the parties. The admitted history of the litigation and the pleading of the parties contained in the objection petition and the reply thereto are to be kept in view. It appears to be necessary to recast all the issues that have been framed in these proceedings by the trial Court so far. I accordingly allow this revision petition, partially grant the application of the objectors and substitute for the three issues framed by the trial Court the following issues:--
(1) Whether the objector--petitioners claim to be in possession of the land covered by the decree under execution in good faith on their own account or on account of some person other than the judgment--debtors? If so can possession be delivered from them to the decree--holder in execution of this decree?
(2) Whether the judgment--debtors have colluded with the objectors and the judgment--debtors have set up the objectors to cause harassment and to delay the execution of the decree and, therefore, the objectors are obstructing the execution of the decree at the instigation of the judgment--debtors? If not, can the objectors be dispossessed of the land in dispute in execution of this decree?
(3) Whether the decree is collusive, as alleged in the objection petition?
(4) What, if any, is the effect of the dismissal of the two previous suits filed by the decree--holders against the objectors?
(5) Relief?
8. The executing Court shall now proceed to record evidence on the above issues and decide them in accordance with law after hearing the parties. The parties have been directed to appear in the executing Court on Sept. 5, 1977,. They are left to bear their own costs in this Court.
9. Order accordingly.