Himachal Pradesh High Court
All Residents Of Village vs Mohinder on 7 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 7th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
REGULAR SECOND APPEAL No.537 of 2008
Between:
MOHINDER SINGH
SON OF SH. SUNAKI RAM, R/O
VILLAGE SOHARI, MAUZA BEH,
TEHSIL BANGANA, DISTRICT UNA,
H.P. SINCE DECEASED THROUGH
HEIRS AND LEGAL
REPRESENTATIVES:-
1(a). SMT. SARWANI DEVI WIDOW OF
LATE SH. MOHINDER SINGH,
1(b). SMT. ASHA DEVI DAUGHTER OF
LATE SH. MOHINDER SINGH,
1©. SMT. PUSHPA DEVI DAUGHTER
OF LATE SH. MOHINDER SINGH,
1(d). SMT. ANJU DEVI DAUGHTER OF
LATE SH. MOHINDER SINGH,
1(e). SH. DEVI RAJ SON OF LATE SH.
MOHINDER SINGH,
1(f). SMT. SEEMA DEVI DAUGHTER
OF LATE SH. MOHINDER SINGH.
ALL RESIDENTS OF VILLAGE
SOHARI, MAUJA, BEH, TEHSIL
BANGANA, DISTRICT UNA, H.P.
....APPELLANTS
(BY SH. K.D.SOOD, SENIOR
ADVOCATE WITH SH. HET RAM
THAKUR, ADVOCATE).
AND
1. GURDASS RAM (SINCE DECEASED) THROUGH HIS LRS:-
1(a). KUSHAL SHARMA
SON OF LATE SH. GURDASS RAM,
1(b) RAMESH CHAND,
S/O LATE. SH. GURADASS RAM,
::: Downloaded on - 31/01/2022 23:02:07 :::CIS
2
1(c) NARESH CHAND
S/O SH.LATE SH. GURDASS RAM.
1(d) SAROJ KUMARI
D/O LATE SH. GURDASS RAM.
.
1(e) SANTOSH KUMARI
D/O LATE SH. GURDASS RAM.
1(f) SUMANA DEVI
D/O LATE SH. GURDASS RAM.
ALL RESIDENTS OF VILLAGE AND P.O.
SOHARI, MAUZA BEH, TEHSIL BANGANA,
DISTRICT UNA, H.P.
....RESPONDENTS
(BY.SH.N.K.THAKUR, SENIOR
ADVOCATE WITH SH. DIVYA RAJ
SINGH, ADVOCATE). r
RESERVED ON: 4.9.2021
Whether approved for reporting? Yes.
__________________________________________________________
This Appeal coming on for orders this day, the Court passed the following:
JUDGMENT
Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, lays challenge to judgment dated 6th September 2008, passed by learned Additional District Judge-I, Una, District Una, Himachal Pradesh in Civil Appeal No.79 of 2005, affirming the judgment and decree dated 31.08.2005, passed by learned Civil Judge (Senior Division) Una, District Una, Himachal Pradesh in Civil Suit No.95 of 2000, whereby suit for possession having been filed by the respondents (hereinafter referred to as the plaintiffs), came to be partly decreed.
2. For having bird's eye view, certain facts, which are relevant for adjudication of the case are that the plaintiff filed a suit for possession ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 3 by removal of structure denoted by letters A B C D E F G H shown in red colour in the site plan, standing on the land measuring 0-0-47 hectares, .
Khewat No.60min, Khatauni Nos.79, 83 Khasra Nos. 705 and 707 to 711 as per jamabandi for the year 1995-96 situate in Village Sohari, Tehsil Bangana, District Una, District Una, Himachal Pradesh (hereinafter referred to as the suit land). In the aforesaid suit, plaintiffs claimed that suit land is owned and possessed by them, but defendant being head strong person raised construction over part of the suit land under the pretext that land belongs to him and he is in illegal possession of vacant and constructed portion without their consent. Plaintiffs averred in the plaint that prior to filing of the suit at hand, they had filed a suit for injunction against the defendant qua the land comprised in Khasra No.4403/2234, measuring 1 kanal 7 marlas titled as Gurdas Ram versus Mohinder Singh being civil suit No.32/88, wherein defendant by way of written statement had admitted that Khasra No.4402/2234 belongs to him and thereupon he had made Khurlies cups on 5 marlas, which are of temporary nature and he has nothing to do with the remaining land in Khasra No.4403/2234. Aforesaid civil suit having been filed by the plaintiff was dismissed on 17.5.1993, as the plaintiffs were found to be out of possession. Though, plaintiff laid challenge to aforesaid judgment and decree dated 17.05.1993, but before same could be decided on its own merits, plaintiffs were permitted to withdraw the suit with liberty to file afresh in respect of the same subject matter subject to cost of Rs.250/.Plaintiffs claimed that since possession of the defendant over the ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 4 suit land is illegal and he is trespasser, they are entitled to possession after demolition of the structure. Since defendant failed to accede to the request .
of the plaintiffs to handover the vacant possession of the suit land, they were compelled to approach the competent court of law by way of civil suit.
3. Defendant by way of written statement refuted the aforesaid claim of the plaintiffs and claimed before the court below that the earlier part of the suit land was owned by the plaintiffs but w.e.f.1970, he is coming in possession over such part of the suit land and since his possession is open, continuous and hostile to the knowledge of the plaintiffs, he has perfected his title and has become owner in possession of such part of the suit land, upon which he has constructed 'Khurlies' and cattle-shed. Defendant also claimed that in previous suit the plaintiffs in their statement had admitted his possession over the part of the present suit land for the last 15 years. In nutshell, defendant claimed himself to have become owner in possession of part of the suit land by way of adverse possession.
4. Plaintiffs by way of replication refuted the claim of the defendant that defendant has become owner in possession of the suit land by way of adverse possession.
5. Learned trial Court on the basis of the pleadings adduced on record by the respective parties framed following issues:-
1. Whether the plaintiffs are entitled to a decree for possession of the suit land? OPP.
2. Whether the defendant has become owner in possession of suit land by way of adverse possession OPD.::: Downloaded on - 31/01/2022 23:02:07 :::CIS 5
3. Whether the suit is not within time? OPP.
4. Relief.
.
6. Learned trial Court on the basis of the pleadings as well as evidence adduced on record by the respective parties, decreed the suit of the plaintiff partly and passed the decree of possession of the suit land after removal of superstructure of any kind existing thereover as shown by letters A B C D E F G H in red colour in the site plan Ex.PW2/A ,except the construction/ super structure existing on the portion of Khasra No.705 in the shape of Tin Posh Veranda, Tin Posh Cattle-Shed, Slate Posh Shed and Slate Posh Pucca Construction as shown in the site plan Ex.PW2/A.
7. Though, plaintiffs accepted the aforesaid judgment and decree passed by learned court below, but appellants/defendants (hereinafter referred to as the defendant) filed an appeal under Section 96 of CPC in the court of learned Additional District Judge, Una, District Una, Himachal Pradesh. Record reveals that during the pendency of the appeal before learned Additional District Judge, Una, defendant filed an application under Order 6 Rule 17 CPC, seeking therein permission of the court to amend the written statement on the premise that defendant has purchased the share one of the plaintiff Bidhi Chand alias Prakash Chand vide registered sale deed dated 26.4.2006 and as such, he has become a co-sharer in the suit land. Aforesaid application was allowed by learned First Appellate Court on 25.3.2008, whereafter defendant also filed amended written statement.
::: Downloaded on - 31/01/2022 23:02:07 :::CIS 68. On the basis of amended pleadings adduced on record defendant, filed an application, praying therein to frame additional issues .
as reproduced herein-below:-
"Whether the defendant is a co-sharer and is in exclusive hissadari possession of the suit land as alleged? OPD".
9. Aforesaid application also came to be heard along with the main appeal. Learned First Appellate Court besides dismissing the aforesaid application, also dismissed the appeal, as a consequence of which, judgment and decree dated 31.8.2005 passed by learned trial Court, came to be upheld. In the aforesaid background, defendant has approached this Court in the instant proceedings, with a prayer to dismiss the suit of the plaintiffs after setting aside the judgment and decree passed by learned Courts below.
10. Aforesaid appeal having been filed by defendant came to be admitted on following substantial questions of law:-
1. Whether the findings of the courts below are perverse, based on misreading of oral and documentary evidence as also pleadings of the parties and drawing of wrong inferences from the facts proved on record particularly the documents Exhibit. DA, DB, D1 to D4 and PW2/A.
2. Whether in view of the fact that the plaintiffs have been denied the decree for possession of portion ABCDEFGH in red colour in respect of the constructed por-
tions in the site plan PW2/A on the ground of adverse pos- session, the land appurtenant thereto in the shape of khur- li and kups, the decree could be passed.
3. Whether in view of the fact that the appellant had purchased the share of Bidhi Chand alias Parkash Chand plaintiff had become owner, the decree of the trial court had become un-executable and the provisions of Section 44 and 52 of the Transfer of property Act have been mi- sread and misconstrued which was vitiated the findings.
4. Whether the judgment of District Judge is vitiated for non- consideration of oral and documentary evidence of non-
::: Downloaded on - 31/01/2022 23:02:07 :::CIS 7compliance of the provisions of Order 20 Rule 5 CPC and the judgment of this Hon'ble Court in case reported in AIR 2001 Himachal Pradesh 18.
11. Since all the substantial questions of law, as reproduced .
hereinabove, are inter-connected and interrelated, they are taken up together for consideration.
12. Having heard learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned by learned First Appellate Court while upholding the judgment and decree passed by trial court, this Court finds no reasons to agree with the contention of Sh. K.D.Sood, learned Senior Advocate representing the defendant that both the courts below have failed to appreciate pleadings as well as evidence led on record in its right perspective, as a consequence of which, erroneous findings to the detriment of the defendant has come to fore. Rather, this court having carefully scanned the material available on record finds that defendant in earlier Suit bearing No.32/1988 titled as Gurdass Ram versus Mohinder Singh having been filed by the plaintiff had admitted in his written statement (Ex.D-2) that he is owner in possession of land measuring 1 Kanal, comprised in Khasra No. 4402/2234 and the abadi of the defendant is situate in this Khasra number only. Besides above, defendant in the aforesaid suit had categorically claimed that the suit land i.e. Khasra No.4403/2234 is adjacent to the abadi of the defendant, which is measuring 1kanal 12 marlas and defendant has constructed 'khurlies' and 'koops' over the suit land adjacent to his own Khasra no. 4402/2234 to the extent of 0-5 marlas.
::: Downloaded on - 31/01/2022 23:02:07 :::CIS 813. Plaintiff while deposing as witness in earlier suit (Ex.D3) admitted that the Teen posh veranda was raised by the defendant on the .
suit land 15 years back. Plaintiff in aforesaid suit also admitted Slate Posh Portion to be in ownership and possession of the defendant. Though, documentary evidence available on record clearly establishes the ownership of the plaintiff over the suit land, but since plaintiff in previous suit admitted that Tin Posh Veranda raised by the defendant is on the suit land for the last 15 years, claim of the defendant that he is in possession of land and construction thereupon in the shape of shops, 'Khurlies' and 'koops' since 1970, was rightly accepted by the courts below. Besides claiming that cattle-shed and Veranda were constructed in the year 1970, defendant also claimed that the houses were kacha and at that time he had raised two cemented shops in the year, 1970, but aforesaid claim of him with regard to construction of two cemented shops never came to be proved in accordance with law. With a view to prove his aforesaid deposition though defendant claimed that persons namely, Jagdish, Nanku and Situ were employed by him for construction of the shops and he had been also paying electricity bills, but such plea of him rightly was not accepted by the courts below for the reason that in earlier Civil Suit No. 32/1988 (Ex.DB) he claimed that construction was got done by him through mason namely, Mehar Chand. Record reveals that apart from solitary statement of defendant that he had raised two cemented shops in the year 1970, there is no evidence, be it oral or documentary and as such, claim of adverse possession qua the entire suit land rightly came to be not ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 9 accepted by the courts below. Sole testimony of the defendant is not sufficient to prove adverse possession, especially qua two shops in .
question. Moreover, when documentary record is totally against the defendant, mere long possession does not entitle party to claim adverse possession, rather it is required to be specifically pleaded and proved on record that from what point of time a person is in adverse possession.
14. Claim qua the possession vis-à-vis the Khurlies, koops and the veranda of defendant has been duly proved by DW-2, Sh. Banta Singh, who deposed that defendant had raised construction in the year, 1970 at the spot comprised of 'koops Khurlies and veranda. Though, aforesaid witness has not fully supported the case of the defendant that he is in adverse possession of the entire suit land, but it can be safely inferred from the statement of DW-2 that defendant had constructed Khurlies koops and veranda in the year 1970 and since than he is in possession of the same.
15. Leaving everything aside, cross-examination of plaintiff Gurdas Ram conducted on 17.3.1990 in the earlier civil suit No.32/88, having been filed by him, clearly reveals that plaintiff admitted that there is a road on the western side of the suit land and three rooms of Mohinder Singh are constructed alongwith such road. Though, aforesaid deposition made on behalf of the plaintiff is not sufficient to establish that such construction was raised 12 years back, but this witness in his cross-examination has categorically admitted that Slate Posh portion of the house of Mohinder Singh is under his ownership and part of Tin ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 10 structure Posh thereof is in the suit land, which makes it amply clear that Slate Posh Construction is in Khasra No.705 as shown in the site plan .
Ex.PW2/A has been admitted by the plaintiff Gurdas Ram in earlier proceedings to be belonging to the defendant, whereas Tin Posh construction has been admitted by him to be existing on the suit land.
Plaintiffs in the aforesaid suit have also admitted that Tin Posh Veranda belongs to the defendant and same was constructed 15 years back.
Though, plaintiff in the aforesaid suit denied that defendant Mohinder Singh is in possession over 5 marlas of Khasra No.4403, but self-stated that he is in possession of 10 marlas of such Khasra number. This witness also admitted in his earlier statement recorded in Civil Suit No.32/88 that Tin Posh Veranda in Khasra No.4403 is in the suit land. From the aforesaid statement made by the plaintiff in earlier suit having been filed by him, it becomes clear that though the defendant has not been able to establish that construction over the whole of the suit land was made in the year, 1970, but it has been successfully proved/established by him that Tin Posh Veranda over the suit land was constructed 15 years back. Needless to say that possession cannot be treated to have become adverse unless it is proved to be in express or implied denial of the title of the true owner.
16. Even if the defendant is assumed to be coming in possession over the part of the suit land on account of construction as has been shown in site plan Ex.PW2/A, but same is not sufficient to conclude that predecessor-in-interest of defendants was in adverse possession over such part of the suit land. To constitute adverse possession, it is ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 11 specifically required to be proved that possession is open, without any attempt of concealment and it is not necessary that such possession must .
be so effective so as to bring it to the specific knowledge of the owner.
17. Since plaintiff Gurdas Ram himself admitted that Slate Posh construction belongs to the defendant and tin posh construction existing on the suit land is in the shape of veranda etc., is there for the last 15 years, meaning thereby, plaintiffs were aware of the existence of tin posh veranda over the suit land as shown in the site plan Ex.PW2/A to be existing on Khasra No.705 and as such, learned courts below rightly held aforesaid construction sufficient to constitute adverse possession without any concealment thereof on the part of the defendant. Since, construction in the shape Tin Posh Veranda is more than 12 years old, as has been admitted by the plaintiff Gurdas Ram himself, learned courts below rightly held defendant to have become owner of the same by way of adverse possession.
18. Since plaintiffs by way of oral as well as documentary evidence successfully established their title over the whole part of the suit land, except the land comprised in Khasra 705, where Slate Posh Construction, Tin Posh Veranda and cattle shed of the defendant exist as shown in site plan Ex.PW2/A, learned trial court rightly decreed the suit of the plaintiff for possession of the suit land after removal of super structure of any kind existing thereover as shown by letters A B C D E F G H in red colour in the site plan Ex.PW2/A, expect construction/ super structure existing in portion of Khasra No. 705 in the shape of Tin Posh Veranda, Tin ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 12 Posh cattle-shed, Slate Posh Shed and Slate Posh Pucca construction as shown in the site plaint Ex.PW2/A. Since, plaintiff Gurdas Ram himself .
admitted that slate posh pucca construction and shed belong to defendant, as is evident from his statement given in cross- examination (Ex.D3), learned courts below rightly held him not entitled for decree of possession over the suit land over which defendant has raised aforesaid construction.
19. Claim of the defendant as has been raised in the instant appeal is that decree of possession by removal of super structure on the remaining portion of the land could not have been passed by the courts below once it stood established on record that defendant is in possession of the same for 30 years back and he was found to be in adverse possession over some portion of the land. However, such plea/stand taken by the defendant cannot be accepted being totally untenable. Though, defendant claims himself to have become owner of the entire land by way of adverse possession, but since he was only able to prove construction, if any, raised by him 15 years back prior to filing of the suit on some portion of land comprised in Khasra No. 705, Courts below rightly passed decree for possession by removal of super structure of any kind existing thereon as shown by letters ABCDEFGH in red colour except the construction/super structure existing on the portion of Khasra No.705.
20. Though, Mr. K.D.Sood, learned Senior Counsel representing the appellant-defendant vehemently argued that ingredient of adverse possession had been pleaded or proved and as such, learned court below ought to have held that defendant has become owner of the entire suit land ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 13 by way of adverse possession, but pleadings as well as evidence led on record nowhere suggests that defendant specifically pleaded all the .
ingredients required to claim adverse possession. Mr. Sood, vehemently argued that once factum with regard to purchase of share of one of the plaintiff Sh. Bidhi Chand alias Prakash Chand by registered sale deed stood admitted by the plaintiff, no decree for possession of the land could have been passed. He argued that decree of trial court, dated 31.8.2005 had become un-executable with the purchase of share of Bidhi Chand alias Prakash Chand by defendant and as such, findings of the court below could not have been upheld by the First Appellate Court. However, this court finds it difficult to accept aforesaid contention raised by defendant for the reason that right of defendant as co-sharer was fructified on 22.6.2006 that too during the pendency of the first appeal having been filed by him. It cannot be disputed that at time of filing of the suit defendant was not a co-sharer. It is also not in dispute that share of Bidhi Chand, which ultimately came to be purchased by the defendant was a part of the suit land.
21. No doubt, as per Section 44 of the Transfer of Property Act, any co-owner of immovable property legally competent in that behalf can transfer his share and transferor's acquire such share or interest, but the transferor's right to joint possession or part enjoyment of the property shall be subject to the conditions and liabilities affecting on the date of transfer of the share or interest so transferred. Section 52 of Transfer and Property Act, clearly suggests that suit property cannot be transferred or otherwise ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 14 dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made .
therein, except under the authority of the court and on such terms as it may impose.
22. In the case at hand, share of one of the plaintiff Bidhi Chand came to be purchased by the defendant by way of registered sale deed on 28.1.2006 that too without the permission of the court, where dispute interse parties involving portion of the land purchased by defendant from Bidhi Chand was also involved.
23. At this juncture, Mr. K.D.Sood, learned Senior counsel representing the appellant-defendant placed reliance upon the judgment rendered by Hon'ble Apex Court in Thomson Press (India) Ltd. versus Nanak Builders and Investors Private Limited and others, AIR 2013 Supreme Court 2389, to claim that doctrine of lis pendens as contained under Section 52 of Transfer and Property Act does not annul transaction/transfer made during the pendency of lis, rather merely makes such transfer subject to rights of the parties to the suit .
24. Having perused aforesaid judgment, this Court is of the view that there cannot be any quarrel with the aforesaid proposition of law laid down by the Hon'ble Apex Court, but definitely transaction/transfer made during the pendency of the suit shall be subject to the outcome of the suit, meaning thereby purchaser of the property, which was subject matter of the suit cannot claim himself to be exclusive owner till the time rights of the parties are settled in the suit.
::: Downloaded on - 31/01/2022 23:02:07 :::CIS 1525. Admittedly, in the case at hand, defendant was not a co-owner in the suit land in the year 2000 when the suit was filed, rather as .
per his own pleadings (amended till statement) he became a co-share on 22.6.2006 by virtue of registered sale deed and as such his right at best can be relegated back to 26.6.2006 and not beyond that time. Definitely, not to 2.5.2000, when the suit has been filed.
26. Since subsequent purchase of the share of one of the plaintiff by defendant had no bearing in the suit filed by the plaintiff in the year, 2000, application having been filed by him, praying therein to frame additional issue rightly came to be rejected. Precisely, the grouse/claim of the defendant, as has been raised in the instant appeal, is that since defendant has become one of the co-owner after purchase of share of one of plaintiff Bidhi Chand, he has become one of the co-sharer of the land alongwith other plaintiffs and as such, cannot be dispossessed from the suit land on the strength of judgment and decree passed by trial court till the time land jointly owned and possessed by all co-sharers is not partitioned in accordance with law. No doubt, it is well settled that possession of one of the co-sharer is the possession of all, but once it is admitted case of the parties that all the co-sharers of the land in question are in possession of their respective shares, coupled with the fact that defendant has only purchased one of the share of plaintiff Bidhi Chand, defendant cannot be allowed to defeat the mandate of judgment and decree passed in favour of the plaintiffs on the ground that he cannot be dispossessed till the time suit land is partitioned interse parties by metes ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 16 and bounds. Since all the plaintiffs and other co-sharers are in specific possession of their specific shares, mere purchase of one share of .
plaintiff Bidhi Chand by defendant would not make him entitled to claim that the judgment and decree passed by learned court below is not executable, especially when the shares of the parties are distinct and separable. Mere transfer of one share by decree holder to judgment debtor would not make the decree in-executable as a whole, but can be executed by one of the decree holder under Order 21 Rule 15 CPC.
27. Hon'ble High Court of Allahabad in case titled Smt. Lalita Devi versus Smt. Kamla Devi, AIR 1995 Allahabad 21 has categorically held that in case of a joint decree where the shares of the parties are distinct or separable and even though some of the decree holders have transferred their shares to the judgment debtors, the decree does not become in-executable as a whole but can be executed by one of the decree holders under the provisions of Order 21, Rule 15 CPC at least to the extent of the share of the decree holder. The relevant para No.9 to 11 of the judgment is reproduced as under:-
"9. In the case of Kudhai v. Sheo Dayal reported in ILR 10 All 570, it was held by Mahmood, J, that where subseqeunt to a decree a portion of the rights to which the decree relates devolves either by inheritance or otherwise upon the judgment debtor, or is acquired by him under a valid transfer, the decree does not become incapable of execution, hut is extinguished only protanto. In the case of Peria Sami v. Krishna Ayyan reported in ILR 25 Madras 431 (FB), it was observed that a joint decree may no doubt sometimes becomes divisible and executable inpart to the extent of such severence when by operation of law or by act of parties, the judgment debtor has acquired the interest of one or some of the decree holders in the decree and thus, a partial satisfaction or extinguishment of a decree takes place. In the case ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 17 of Smt. Champak Devi v. Rekhal Chandra Sen Gupta reported in AIR 1964 Pat 363, it was held by a Division Bench that where a decree for eviction is passed in favour of several decree holders against the lessee and the decree holders hold separate shares in the house porperty the subject of lease, then an adjustment .
between some of the decree holders and thejudgment debtors lessee whereby lessee steps into the shoes of those decree holders should legally be taken as satisfaction of the eviction decree portanto. In such a case one of the remaining decree holders can execute the said decree with respect to his shares only in the leasehold property. The decree does not become entirely inexecutable. From the decisions referred to above, the law appears to be settled, that in case of a joint decree where the shares of the parties are distinct or seperable even though some of the decree holders have transferred their shares to the judgment-debtor, the decree does not become inexecute-able as a whole but can be executed by one of the decree-holders under the provisions of Order 21, Rule 15, C.P.C. at least to the extent of the share of the decree-holder. However, in the present case at hand it is noteworthy that in the decree the share of the plaintiff have not been specified and it is a joint decree passed in favour of the decree holders. Such a decree in my opinion can be executed as a whole by one of the joint decree-holders, specially when the other decree-holders who have allegedly transferred their shares in the property have not come to oppose the application or denied that the same are not for their benefit. It will also be noticed that the decree passed in the present case was not only for the possesison but for recovery of mesne profits and damages. The sale deed has not been filed by the judgment-debtor to show that the rights under the decree has been transfereed in her favour by some of the decree holders. Situation in the present case, is, therefore, somewhat different. It has been held by the Bombay High Court in the case of Val Chand Gulab Cahnd Shah v. Manek Bai Hira Chand Shah and another reported in AIR 1953 Bombay 137 that where the shares of the respective decree-holders are not apparent on the face of the decree, either expressly or by necessary implication, the decree which is sought to be executed is a joint decree and the judgment-debtors must render satisfaction to the whole body of the decree-holders. Order 21, Rule 15, C.P.C. does not contemplate the splitting up of a joint decree into one in favour of individual decree-holders in respect of their own shares. Such a procedure would mean permitting the executing court to go behind the decree as such. Ascertaining the respective shares of the decree holders in a joint decree is thus foreign to the nature of the execution proceedings. Following the aforesaid decision in the case of Val Chand Gulab Chand Shah (supra), a learned single Judge of the Calcutta High Court in the case of Mihir Bose v. Jobeda Khatun reported in 63 Cal Weekly Notes 570 took the view that a joint decree for khas possession of certain premises stood on a different footing than that of a decree for payment of money, and adjustment of ajoint decree of this ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 18 nature by some out of the entire body of the decree holders is not valid in law. It was further held that the remaining decree-holders were entitled to execute the whole decree as it was originally passed. In the facts of the said case a suit for eviction was brought against the tenant-judgment debtor jointly by seven .
respondents which was decreed. The said decree was put in execution on behalf of the decree holders but an objection was raised to the execution of the decree on the ground that two of the decree holders had adjusted the decree with the judgment-debtor and allowed him to continue as tenant in occupation and they were receiving rent from him. Hence, the remaining decree holders were not entitled to khas possession of disputed premises by evicting the appellant. This objection was rejected by the learned single Judge as mentioned above and the decree was found to be executable.
10. In almost similar facts as in the case at hand our High Court in the case of Bansraj Singh v. Krishna Chandra reported in AIR 1981 All 280 held on the facts of the said case that such a joint decree was executable on behalf of the other decree holders. The facts of the said case were that a decre for possession over the vacant land and constructed portion after demolishing the same, and for mesne profits was passed in favour of the decree holders who were brothers. It appears that one of the decree holders transferred his share in the property in dispute in favour of wife of one of the judgment debtors. The remaining decree-holder put the decree in execution on behalf of all the decree-holders for the benefit of all of them. The wife of the judgment-debtor who was the transferee from one of the decree-holders and her transferor filed objections that the execution was not for their benefit and was liable to be dismissed.
The executing court dismissed the execution application for mesne profits and for possession of the property and held that the constructions in dispute could not be demolished as the execution was not for the benefit of all the decree-holders. On the said facts it was held as follows at page 283:---
"On the consideration of the arguments of the learned counsel for the parties and after going through the authori- ties cited by them I am of the view that the dispute between the co-decree-holders is foreign to the scope of Section 47, Civil P.C. and one of the decree-holders can execute the decree for the benefit of all of them even without impleading them and without mentioning this fact in the execution application that the decree is being ; executed for their benefit as an execution of the decree is permissible always for the benefits of all the decree-holders unless it is proved otherwise. This is based on a very sound principle, otherwise any one of the decree-holders on account of some malice with the other decree-holders or in collusion with the judgment debtors can make the decree un-executable. As a ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 19 joint decree is a executable as such and the execution court cannot go behind the decree, a decree can be executed in part only where the share of the decree-holders are defined or can be predicted or where the share is not in dispute. In that case a separate execution for the respective shares of .
the decree-holders is permitted under the law, otherwise it is beyond the scope of the execution court to find out the shares of the decree-holders in the execution proceedings. A joint decree is not divisible and can be executed and is always executable as joint decree. The view of the execution court that as Smt. Rajni Singh has opposed the execution of the whole decree so it is not for the benefit of Thakur Shiv Raj Singh, is illegal and cannot be maintained in law."
11. I am in respectful agreement with the view expressed by this Court in the aforesaid case of Bansraj Singh supra). In the facts of the instant case at hand, the Supreme Court while dismissing the S.L.P. had observed that the transferees cannot claim any better right than those of the transferors and they may either choose to take benefit of the decree in question or to forego the same. It appears that the judgment debtor-revisionist has chosen to take the benefit of the decree by filing an execution case No. 14 of 1992 in the court of Civil Judge, Gorakhpur. The decree-holder-respondent has filed objection to the same and is contesting the said execution. Be that as it may and without expressing any final opinion on the status of the judgment-debtor- applicant, I am of the view that if the judgment-debtor is claiming the right of a decree-holder on the basis of the alleged sale deed in her favour, her objection under Section 47, C.P.C. will not be maintainable as held by this Court in the case of Bansraj Singh (supra) within the scope of Section 47 C.P.C. The first submission, therefore, made by the learned, counsel for the judgment-debtor- revisionist cannot be accepted.
28. Leaving everything aside, this court finds that entire documentary evidence available on record clearly suggests that the plaintiff is the exclusive owner of the property in question, but since possession over the some portion of Khasra No.705 of defendant has been found to be 15 years old, Courts while accepting plea of adverse possession raised by the defendant over aforesaid specific portion of land passed decree for possession in favour of the plaintiff after removal of super structure of any kind existing on the suit land, save and except construction on the portion ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 20 of Khasra No.705 in the shape of Tin Posh Veranda, Tin Posh Cattle Shed, Slate Posh Shed, Slate Posh Pucca Construction as shown in site plan .
Ex.PW2/A. Even if plea of defendant is accepted that he has become one of the co-sharer on account of his having purchased the land from plaintiff Bidhi Chand, he can only be held co-owner alongwith other plaintiffs qua the share of Bidhi Chand, which otherwise does not come out to be more than 5 marlas, over which defendant has already raised construction and he has been held to be owner of the same by way of adverse possession.
29. Reliance placed upon the judgment passed by Hon'ble High Court of Orissa in Bhismadev Taria and another versus Radhakishan Agarwalla and others, AIR 1968 Orissa 230 (V 55 C 66) by learned Senior counsel representing the appellant-defendant has no application in the case at hand because in that case Hon'ble Court held that co-sharer's suit for possession must either be for benefit of entire body of co-sharers or for possession of the plaintiff's share. However, in the case at hand, it is not in dispute that at the time of filing of the suit, defendant was not a co-sharer, rather he after having suffered decree from trial court purchased share of one of the plaintiff. Since at the time of filing of the suit, defendant was not a co-sharer in the suit property, there was otherwise no occasion, if any, for the plaintiff to file suit for possession for the benefit of entire body of co-sharers, rather at that time plaintiff filed suit for possession on behalf of all the share holders in the suit property.
::: Downloaded on - 31/01/2022 23:02:07 :::CIS 2130. Having perused the material available on record, this Court is fully satisfied and convinced that both the Courts below have very .
meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Substantial questions of law are answered accordingly.
31. Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein it has been held as under:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
32. Aforesaid exposition of law clearly suggests that High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless the same are shown to be perverse. In the case at hand, this Court while examining the correctness and genuineness of submissions having been made by the parties, has carefully perused evidence led on record by the respective parties, perusal whereof certainly ::: Downloaded on - 31/01/2022 23:02:07 :::CIS 22 suggests that the Courts below have appreciated the evidence in its right perspective and there is no perversity, as such, in the impugned judgments .
and decrees passed by both the Courts below. Moreover, learned counsel representing the appellant- defendant was unable to point out perversity, if any, in the impugned judgments and decrees passed by both the Courts below and as such, same do not call for any interference.
33. Consequently, in view of the detailed discussion made hereinabove, the impugned judgments and decrees passed by the courts below are upheld and present appeal fails and same is accordingly dismissed. Interim directions, if any, are vacated. All miscellaneous applications are disposed of.
7th September, 2021 (Sandeep Sharma),
(shankar) Judge
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