Punjab-Haryana High Court
Baje Singh And Another vs Gaje Singh And Others on 4 August, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR No.2187 of 2014 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.2187 of 2014 (O&M)
Date of Decision: 04.08.2014
Baje Singh and another ..... Petitioners
Versus
Gaje Singh and others
... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. M.L. Saggar, Sr. Advocate,
with Mr. Sunny Saggar, Advocate,
for the petitioners.
Mr. Anil Malik, Advocate,
for respondent Nos.1 to 6.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
By consent, the stay application and the main petition are taken up for final disposal by advancing the date from July 28, 2014 to a shorter date. The petitioners are judgment debtors.
Heard Mr. M.L. Saggar, learned Senior counsel appearing for the petitioners and Mr. Anil Malik, learned counsel appearing for respondent Nos.1 to 6.
On March 24, 2014 this Court had issued notice of motion to the respondents in the main petition and had stayed dispossession of the petitioning judgment debtors over the land in dispute till further orders. The decree holders put in appearance and filed an application placing on record the order dated March 13, 2012 passed by this Court and the orders dated May 07, 2012 and September 20, 2012 respectively passed by the Supreme Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh CR No.2187 of 2014 (O&M) -2- Court. It was the contention of the decree holders that the judgment debtors are unnecessarily protracting and delaying the execution of the decree.
The brief facts are that Gaje Singh etc. are decree holders in Civil Suit No.278 of 1981. The suit was for possession by exercise of right of pre- emption in respect of the suit land. The decree was passed in 1982 in favour of Gaje Singh & others subject to payment of Rs.47,973/- including 1/5th pre-emption money already deposited in the Court on or before February 04, 1983 failing which the suit would stand dismissed. Admittedly, the remaining amount of Rs.40253/- was deposited on February 03, 1983. The civil appeal filed by the petitioners failed before the learned Additional District Judge, Jind on August 08, 1984. RSA No.2645 of 1984 was filed before this Court. In the appeal, dispossession of the petitioners was stayed. However, they were left free to withdraw the pre-emption money deposited without prejudice to their rights in appeal. The appeal was ultimately dismissed in view of the law laid down in Atam Prakash vs. State of Haryana and others, AIR 1986 SC 859. Baje Singh and Kitab Singh (minor) the defendant-appellants had challenged the decree holding Baje Singh etc. to be co-sharers of the suit property entitled to rights of pre- emption. The argument raised was that the sale being by a female the same was covered by Section 15(2) of the Punjab Pre-emption Act, 1913. Since the provisions of Section 15(2) of the aforesaid Act had been struck down in Atam Prakash case this was a subsequent legal development, the challenge was not accepted and the appeal failed by order dated August 27, 2004. The SLP carried to the Supreme Court resulted initially in a status quo order to be maintained by the parties as on January 02, 2006 when notice issued to Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh CR No.2187 of 2014 (O&M) -3- the respondents was made returnable.
After hearing both sides, the Supreme Court was pleased to dismiss the Special Leave Petition finding no ground to interfere with the impugned order of the High Court. The order of Supreme Court is dated January 02, 2009.
In parallel proceedings before the trial Court, decree holder respondents Gaje Singh etc. filed an application on November 05, 2005 praying for leave to deposit the amount of Rs.47,973/- in the Treasury. The application was contested by filing reply on June 05, 2006. However, the application was dismissed by the Additional Civil Judge (Senior Division), Narwana on April 28, 2010. Aggrieved, CR No.5462 of 2010 was filed before this Court which was allowed on March 13, 2012. Gaje Singh and company were permitted to deposit the amount within a period of two months from April 02, 2012. The decree was set at rest in view of the aforesaid proceedings and open finally to execution to obtain the fruits of the decree after long drawn out litigation.
Consequently, execution case No.14 dated April 16, 2012 was filed by decree holders Gaje Singh and company for executing the decree dated December 15, 1982 after final clearance to the execution proceedings was given by the passing of the order dated March 13, 2012 in CR No.4172 of 2010. The Court held that on deposit of pre-emption money within the period specified i.e. two months from March 13, 2012 the respondents will be entitled to execute the decree. Gaje Singh and company prayed for delivery of possession. Against the order dated March 13, 2012 the judgment debtors carried an SLP to the Supreme Court which was dismissed Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh CR No.2187 of 2014 (O&M) -4- on May 07, 2012. Still dissatisfied with the order, they filed a review petition which was also turned down on September 20, 2012 by the Supreme Court. It is not disputed that the respondents decree holders Gaje Singh and company deposited the amount of Rs.47,993/- etc. on April 07, 2012. In the execution proceedings, objections were filed by the JD on February 02, 2013. It was now argued that the DH Gaje Singh etc. are only entitled to joint possession i.e. symbolical possession but not actual physical possession of the property. These objections have also been dismissed by the learned Executing Court vide order dated February 18, 2014. The Executing Court had held that there is no need to get the suit land partitioned and actual physical possession has to be delivered to the decree holders.
Aggrieved by the order dated February 18, 2014 (P-6) the petitioners have approached this Court through the present petition.
Mr. Saggar in his challenge to the order submits that Order 21 Rule 35(2) CPC provides for only delivery of symbolical possession and not actual physical possession. Order 21 Rule 35(2) CPC heavily relied upon is reproduced:-
"35(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree."
Therefore, in the present case, it is argued that the procedure laid down in the above rule has deservedly to be followed and the Executing Court could not have straightaway ordered delivery of possession. The other contention of the learned Senior counsel is that in case of agricultural lands, Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh CR No.2187 of 2014 (O&M) -5- possession is not necessarily to be claimed by a co-sharer and a mere suit for declaration is maintainable and such suit cannot be dismissed except after contest. The decree holder is alone entitled to get his share in the agricultural land by filing an application under Section 111 of the Punjab Revenue Act, 1887. This legal position canvassed is on the strength of Section 34 of the Specific Relief Act, 1963.
It is further urged that sale of a specific portion of land described by particular khasra numbers by a co-owner out of a joint khewat would be a sale of share out of the joint land and pre-emptible under Section 15(1) (b) of the erstwhile Punjab Pre-emption Act. It is said that this legal position flows from the authority of this Court sitting in Full Bench in Bhartu vs. Ram Sarup, 1981 PLJ 204. It is the further contention of the learned senior counsel for the petitioners that a co-sharer is entitled to a decree for declaration only and not for possession in view of the law laid down in Pritam Singh vs. Tara Singh, 1986 PLJ 177 of this Court while relying upon the decision of the Lahore High Court in Sukhdev vs. Parsi plaintiff and others, AIR 1940 Lah. 473 where it was held that a co-sharer in possession of any portion of a joint khata can at best transfer that portion subject to the adjustment of the rights of other co-sharers determined at the time of partition. In reaching this conclusion, the Lahore High Court followed the earlier law laid down in Saad Ullah v. Ibrahim, AIR 1925 Lah. 518, Harnam Singh v. Jagat Singh, AIR 1929 Lah. 168 and Sripal Singh v. Mata Badal, AIR 1939 Oudh 243.
The Court in the said cases was of opinion that this legal position was consistent with the principles embodied in Section 44 of the Transfer of Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh CR No.2187 of 2014 (O&M) -6- Property Act regarding transfer of interest in joint property by a co-sharer.
On facts, it is urged for the petitioner that the Head Note of the suit as well as in the Head Note to the execution application, khasra numbers of the entire land are not mentioned much less of the suit land measuring 33K-17M. Thus, respondents were fully aware that only joint symbolical possession is to be delivered in execution of the decree. It is pointed out that there is no averment in the execution application that the actual physical possession of 33K-17M be delivered without partition of total land measuring 304K 18M of which 33K-17M represented 4/36th share which became the subject matter of the pre-emption suit.
For these reasons, it is urged that the impugned order of the Executing Court is liable to be set aside. It is said that the Executing Court cannot go behind the decree which has attained finality. In order to examine this issue and in the absence of a copy of the decree sheet on the record of this case, this Court called upon the petitioners to place on record a copy of the decree sheet in order to know what is decreed, that is, whether joint possession or possession. That order was passed on July 10, 2014.
The petitioners have filed CM No.13564-CII of 2014. The decree sheet has not been filed with the application but a photocopy has been produced in Court from where it is found that the suit was decreed for 'possession' by way of pre-emption of the suit land described in the head note of the plaint passed in favour of the plaintiffs and against the defendants subject to payment of Rs.47,973/- including 1/5th pre-emption money already deposited in the Court on or before February 04, 1983 failing which the suit of the plaintiffs shall be deemed to have been dismissed with Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh CR No.2187 of 2014 (O&M) -7- costs. The fact of the matter as now revealed is that a decree of possession was granted. There is no dispute that the amounts do not stand paid as called upon to be done by the Court and the amount withdrawn under Court orders was re-deposited on April 07, 2012 after 30 years of litigation. Having lost the suit, the petitioners cannot be considered joint owners of the suit land as title of the suit property passed to the decree holders. The decree is final.
This Court does not accept the argument of Mr. Saggar that the petitioners can be evicted or dispossessed only upon a separate suit brought for mandatory injunction and not otherwise. The law cannot be made a mockery of. One has to put the man first and then the law.
The right of pre-emption is not a right of re-purchase but it is a right of substitution and pre-emptor stepped into the shoes of the vendees. By operation of Court orders, the name of the vendees, the petitioners before this Court stands erased from the sale deed and instead the names of the pre-emptor stand inserted in their place and nothing more is required to be done in law for the petitioners to assert a right of execution of sale deed or of partition or mutation of the property in the name of the decree holders. When the decree is not for joint possession but for possession of immovable property, Order 21 Rule 35(2) cannot come into play or in aid of the petitioners. The decree cannot be re-written. It is one for possession and not for joint possession. The decree says so clearly. Photo copy of the decree sheet is taken on record.
Thereby, I do not find any sufficient reason to interfere with the impugned order. The petitioners have ceased to be co-sharers with the passing of the decree and their rights remain subordinate to those of the Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh CR No.2187 of 2014 (O&M) -8- decree holders determined after many layers of long-drawn-out legal battles spanning 30 years. I marvel at the litigative stamina of the parties. Nevertheless, the respondents cannot be denied of their right to the fruit of litigation at the end of the day or in its further postponement to the Greek calends. It is the cardinal rule of jurisprudence that litigation must come to an end. It is no argument that legal recourse must be had to Section 111 of the Punjab Revenue Act, 1887 which appears to be an argument of desperation made to further frustrate the decree and cling to property. Pre- emption money deposited is free to be withdrawn by the petitioners from the Treasury.
For the foregoing reasons, I find no merit in this petition which is ordered to stand dismissed. No costs.
(RAJIV NARAIN RAINA) 04.08.2014 JUDGE manju Mittal Manju 2014.08.06 12:41 I attest to the accuracy and integrity of this document Chandigarh