Singh (D) By Lrs Vs. Gurbhajan Singh & Ors  Insc 195 (23 February 2007)
S.B. Sinha & Markandey Katju
[Arising out of SLP (C) No. 1636 of 2006] S.B. SINHA, J :
Interpretation of a decree passed as far back on 14.01.1953 falls for
consideration in this appeal which arises out of a judgment and decree dated
21.10.2005 passed by the High Court of Punjab and Haryana in Civil Revision No.
1186 of 1984 whereby and whereunder the order dated 30.01.1984 passed by the
Additional District Judge, Patiala was set aside.
The subject matter of the suit filed by one Sampuran Singh was in respect of
2 bighas 17 biswas in Khasra No. 2057 to 2059. A decree for recovery of
possession was passed. The present dispute revolves round the question as to
whether actual possession in execution of the said decree was granted or not.
The contention of the decree holders had been that actual delivery of
possession was confined only to 10 biswas only in the execution proceeding and
only symbolic possession of 2 bighas 7 biswas on 5.03.1954 was given, and,
thus, the actual possession thereof remained with the judgment debtors appellants.
A fresh suit for possession was filed in respect of the said lands which
although was dismissed by the learned Trial Judge but a decree for 10 biswas
was passed by the learned District Judge on 16.01.1960. It was held that the
subsequent suit was not maintainable stating:
"It would, thus, appear that the plaintiff had not taken possession of
the land measuring 2 bighas and 7 biswas in accordance with law under the
previous decree and the subsequent suit is, therefore, not competent in
accordance with the Mohan Maitra (AIR 1925 Privy Council 34) as held therein
that it was on executable decree and precluded a fresh suit for the possession
of the properties concerned by one of the parties.
Consequently, the subsequent suit is not competent."
The decree holder in execution of the decree dated 14.01.1953 prayed for
delivery of possession of the said lands. The court passed the following order
"The warrant of possession has been received back. It has been reported
that the site plan was not attached with the warrant of possession but this
appears to be incorrect. The D.H. is hereby directed to file a fresh site plan
of the disputed property excluding the portion of 10 Biswas which may be
clearly shown in the site plan that may be got filed and this 10 Biswas is out
of land bearing khasra no. 2059 and the Patwari while giving possession
according to the decree should ascertain that possession is given to the Decree
Holder of the land etc. excluding the 10 Biswas of land. This 10 Biswas of land
has been shown in the site plan today filed by the J.D. and has been marked A,
B, C & D. The Patwari should ascertain whether this plot of land is out of
Khasra no. 2059 or not? Warrant of possession be issued on payment of process
fee etc. Now case to come up on 15.2.63.
It should also be mentioned that possession of portion marked E, F, G, H be
also not given to the D. Holder. Warrant of possession be given dasti
In terms of the said order, warrant of possession was issued wherein it was
"In respect of possession of land as per site plan attached in the
above noted suit by fixing the peshi 6.7.63, you are hereby ordered that the
possession of the land bearing khasra numbers except mark A, B, C, D & E,
F, G, H be delivered to the decree holder along with the standing crops which
are duly shown marked as red in colour with police force and in this respect
the report be submitted.
For the sanction of help of the police force, the proceedings have been
Delivery of possession pursuant to the said warrant of possession was given
upon publication of notice by beat of drums on or about 29.06.1963.
Thereafter, the decree holders respondents applied for mutation of their
names which was said to have been granted. Entire khasras were recorded in the
names of the decree holders. Allegedly, the decree holders had also
transferred the lands in question to outsiders and the vendees are in
possession of their own purchased lands.
The question which arose in the second execution case was as to whether a
portion of the property delineated with the words 'EFGH' in the plan formed
part of the decretal property or not. The matter came up to the High Court in
Execution Second Appeal No. 718 of 1967. On an application filed under Section
151 of the Code of Civil Procedure, by an order dated 31.07.1967, Grover, J.
while issuing a notice of early date of hearing directed that the judgment
debtors should not be dispossessed from the portion marked 'EFGH' in the plan.
The said Execution Second Appeal was disposed of by Tuli, J. on 13th
January, 1971. In the said appeal, correctness of the finding recorded in
paragraph 8 of the order of the appellate court was questioned on the ground
that the decree holder was not entitled to possession of land shown in 'EFGH'
of plan as the 'Kothas' of the judgment debtors were situate therein.
In the said Appeal, observations of Mahajan, J. in his order dated
13.10.1965 were noticed in the following terms:
"In the present execution application, claim is made to some kothas on
the ground that they are situate in the land in dispute. According to the
judgment debtor, this claim is made to the kothas which were the subject
matter of the earlier suit. It cannot be disputed that the decree-holder is
entitled to the possession of 2 bighas 7 biswas under the decree dated 14th
January, 1953 and 10 biswas under the decree dated 16th January, 1960.
I have already dealt with the total measuring 10 biswas in Execution Second
Appeal No. 760 of 1964 today. Possession of this land has been taken by the
decree holder. It is not clear whether the possession of land measuring 2
bighas 7 biswas subject matter of the decree dated the 14th January, 1953 has
been taken possession of or not. If there is any kotha in the total land of
which the decree holder is entitled, namely, 2 bighas 17 biswas, the decree
holder will be entitled to any kothas, outside this land."
On the basis thereof, it was opined:
"The learned counsel for the decree-holder respondent states that in
accordance with the observations made by Mahajan J. he will only obtain the
possession of 2 bighas 7 biswas of land under the decree dated January 14, 1953
and of the kothas, situate on that land. There can be no dispute with regard to
this position of the learned counsel but the Executing Court, while giving
possession of that land to the decree holder respondent, will keep out the
kothas which were the subject matter of the suit which was decided in appeal by
Shri H.S. Bhandari, District Judge, by his decree dated January 16, 1960. The
possession of those Kothas will not be delivered to the respondents in any case
as it has already been held that they are not situate on the land which forms
the subject matter of the suit which had been decreed in favour of the decree holder
on January 14, 1953 Mahajan J. also made it clear that the decree holder will
not be entitled to any kothas outside this land. As it has already been
determined by a competent court that the kothas to which the judgment debtors
are laying claim as having been rebuilt are not situated on the land measuring
2 bighas 7 biswas which formed the subject matter of the suit decreed in
January 14, 1953, it will not be open to the Executing Court to deliver
possession of those kothas to the decree holder while giving him possession of
the land which forms the subject matter of the suit decreed on January 14,
1953, the execution of which is being sought.
The appeal is accordingly accepted in part as observed above. The parties
are left to bear their own costs."
However, a second execution case was filed including the 'kothas' which
were, as noticed hereinbefore, delineated with in the area marked with the
words 'EFGH' in the plan. An objection to the said execution application was
filed by the appellants on 10.06.1971. The Executing Court framed the following
"Whether the decree dt. 14.1.53 and decree dt. 16.1.60 have been fully satisfied?
Whether the objection petition is not
Whether the decree holder is estopped by his act and conduct to seek
possession of the land after 29.6.63?"
The decree holders moved an application for issuance of warrants of
possession on 23.06.1971 in the aforesaid execution petition. The Executing
Court opined that the possession of the portion of the decretal property marked
as 'ABCD' had already been given to the decree holders. By an order dated
30.01.1984, it was held:
"1Now the sole question is as to whether kothas shown at EFGH are
included in the decreed property or not. In that behalf the order of the
Hon'ble High Court Ex. 013 would clearly show that these kothas are outside the
scope of the decree. The concluding words of His Lordship Mr. Justice Balraj
Tuli are that it will not be open to the executing court to deliver possession
of those kothas while giving him possession of the land which is the subject
matter of the suit decreed on 14.1.53, the execution of which is being sought.
The kothas have been found to be situated at portion marked EFGH. This
portion was excluded by the executing court by the warrant of possession in the
presence of both the parties. The line depicted EFGH was drawn by the court
with the consent of the decree holders even. That being the case no claim
regarding EFGH can be made by the decree holders now.
The learned counsel for decree holders states that his decreed land
measuring 2 B 17 biswas has not been made good and some portion of land still
remains to be delivered to him. That contention is belied by looking to the
Jamabandi of 1981-82 which is to the effect that 2 B 17 biswas of land in
khasra No. 2057 to 2059 is in possession of the decree holders. In view of
these reasons and consideration, I would hold that both the decrees have been
fully satisfied on 29.6.63 when the report of delivery of possession has been
made to the court. Therefore, these issues are decided in favour of the
The revision petition filed thereagainst by the decree holders respondents
have been allowed by reason of the impugned judgment.
Mr. P.N. Mishra, learned senior counsel appearing on behalf of the
appellants, would submit that in view of the clear finding of fact arrived at
by the executing court, there cannot be any doubt whatsoever that the decree
passed in favour of the decree holders was satisfied and as such the fresh
execution petition was not maintainable.
Mr. Pradeep Gupta, learned counsel appearing on behalf of the respondents,
on the other hand, would contend that the High Court by reason of the impugned
judgment took into consideration the entire aspect of the matter and having
come to the conclusion that the 'kothas' form part of the decretal land, and
the actual delivery of possession having not been granted in relation thereto,
a fresh execution petition was maintainable.
It is not in dispute that the subject matter of the dispute is 'kothas'.
Judgment Debtor had all along taken the stand that the 'kothas' are outside
the decretal land. Even if they had not raised the contention that the decree
stood satisfied, it was for the Executing Court to arrive at the said decision.
Appellants are admittedly in possession of the 'kothas' in question. In the
first execution case, therefore, the decree holders were required to file
application not only for actual delivery of possession of agricultural lands as
also non-agricultural lands as directed in terms of warrant of delivery of
possession but also for the said 'kothas'. The warrant of delivery of
possession issued by the executing court has been noticed by us hereinbefore.
No direction therein was issued while directing the authorities to render all
assistance to the bailiff of the court to evict the judgment debtors from the
'kothas'. It is expected that such a direction would be given by the Executing
Court while issuing warrant of delivery of possession.
We may also notice the report of Assistant Collector, Patiala dated
29.06.1963 which reads as under:
"It is requested that as per order, I reached the spot today, the land
as per site plan attached which was found vacant at the spot, that land after
getting it ploughed by the D.H. and the land in which the crops are standing,
by getting its round of the D.H.
around four sides of that land in satisfaction of the D.H. as per order, the
possession of the D.H. with police force under the supervision of Sh. Surjit
Singh ASI Incharge Division no. 2 Patiala in presence of Halqa Patwari and the
below noted witnesses, was delivered. At the spot only 5 Biswas of land was
found vacant, in the remaining land there are crops of tomato, chilies, lobia
and torian. Regarding the delivery of possession its Munadi was made in the
adjoining land. The Patwari Halqa was directed that the report of this
proceeding be made in the Roznamcha. There is a well in this land also on which
the machinery for pulling water (Halt) is also fitted. Accordingly, the report
is submitted after compliance. Dated 29.6.1963"
It was not stated therein that only symbolic possession was delivered.
Decree Holder accepted that delivery of possession had been given.
We have noticed hereinbefore that delivery of possession of the 'kothas'
delineated in the plan and marked with the letters 'EFGH' was a contentious
issue in the Execution Second Appeal as also in Civil Revision filed before the
High Court. It had categorically been held that the 'kothas' did not form part
of the decree and, thus, the possession thereof cannot be delivered. It has
also been found by the learned Subordinate Judge in the suit that as actual
delivery of possession having been effected, the suit was not maintainable.
Appreciation of evidence on the basis of the materials brought on record by
the parties was within the domain of the Executing Court. By reason of the Code
of Civil Procedure (Amendment) Act, 1976, an appeal thereagainst does not lie.
Revisional jurisdiction of the High Court, thus, could be exercised only on
The High Court, therefore, in our opinion, was, thus, not correct in
interfering with the said findings of fact. It was exercising its revisional
jurisdiction. It had not found that the Executing Court committed any
illegality or material irregularity in passing the order impugned before it. It
proceeded on a presumption that merely symbolic possession had been delivered.
The contentions raised in this behalf by the respondents were not borne out of
There cannot be any doubt whatsoever that if the 'kothas' formed part of the
decretal land, the decree holder was entitled to possession thereof but the
question was whether the kothas in question were part of the decretal land or
not. The High Court had referred to an order dated 13.10.1965 passed in civil
revision No. 470 of 1964 wherein it was held:
"In the present execution application, claim is made to some kothas on
the ground that they are situated in the land in dispute. According to the
judgment debtor, this claim is made to the kothas which were the subject matter
of the earlier suit. It cannot be disputed that the decree holder is entitled
to the possession of 2 Bighas 17 Biswas, 2 Bighas 7 Biswas under the decree
dated 14th January, 1953 and 10 Biswas under the decree dated 16th January,
1960. I have already dealt with the land measuring 10 Biswas in Execution
Second Appeal No. 60 of 1964. Possession of this land has been taken by the
decree holder. It is not clear whether the possession of land measuring 2
Bighas 7 Biswas subject-matter of the decree dated the 14th January, 1953 has
been taken possession of or not. If there is any Kotha in the total land of
which the decree holder is entitled, namely, 2 Bighas 17 Biswas, the decree
holder will be entitled to that; but decree holder will not be entitled to any
Kotha outside this land."
The question was not as to whether the principles of res judicata would be
applicable but the question which was required to be posed and answered was as
to whether the kothas marked 'EFGH' formed part of the decretal land or not.
It, having regard to the orders passed in the earlier proceedings, cannot be
said that the Executing Court acted illegally or without jurisdiction in
arriving at the conclusion, it did.
The finding of the Executing Court essentially was a finding of fact.
The High Court has not assigned sufficient or cogent reasons to conclude
that the finding of the executing court in that behalf was factually incorrect.
Revisional jurisdiction as is well-known is very limited. The High Court, in
our opinion, in the facts and circumstances of the case, exceeded its
jurisdiction in passing the impugned judgment.
The High Court referred to an order dated 13.10.1965 but the effect thereof,
as noticed hereinbefore, has not been considered in its true perspective.
We may now deal with the application for impleadment as also application for
substitution filed by the applicant and the appellant respectively.
Gurbachan Singh, Respondent No. 4 herein died on 19.11.1999. In terms of the
Punjab and Haryana High Court Amendment to Order 22, Rule 3 of the Code of
Civil Procedure, the appeal shall not abate. A statement was made before the
Registrar on behalf of the appellant that the name of Respondent No. 4 be
deleted. An order was passed to that effect on 19.09.2006. An application for
impleadment has been filed by the legal representatives of Gurbachan Singh,
Respondent No. 4. An affidavit has also been filed for revocation of the said
order dated 19.09.2006. The relationship between the applicants and the
deceased Respondent No. 4 is seriously denied and disputed. The Executing
Court had also in its order dated 5.06.2006 concluded:
"The best course to be adopted by the L.Rs of Decree-Holder Gurbachan
Singh, Gurmukh Singh applicant and the JD/ Objector is to raise the alleged
objection by seeking declaration from the court by filing a separate suit or to
obtain the succession certificate."
This Court at this stage does not intend to determine the said question
particularly in view of the statement of the respondents and in particular for
the reason that it is not necessary for the purpose of disposal of this appeal.
These applications for impleadment as also for substitution, therefore, are
We, for the reasons stated hereinbefore, are of the opinion that the
impugned judgment cannot be sustained which is set aside accordingly. The
appeal is allowed. No costs.