ESA No. 26 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ESA No. 26 of 2011(O&M) Date of Decision: 03.11.2011 *** Avinash Kaur & Ors. .. Appellants VS. Anup Kaur & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. M.S. Sachdev, Advocate for the appellants. *** ARVIND KUMAR, J. The present appellants are aggrieved with orders passed by the Courts below dismissing their objections which they filed in the execution petition preferred by decree holder-respondents No.1 to 4 for implementation of decree dated 15.9.2007. The factual matrix, in brief, is that Gurdip Singh(since deceased) son of Sujan Singh, predecessor-in-interest of respondents No.1 to 4 filed a civil suit seeking declaration in respect of house No. 581-L, Model Town, Jallandhar, to the effect that he is absolute owner in possession of the said house and his brother defendant No.1 Harbhajan Singh be restrained from alienating the same or to make addition or alteration in the house and further sought mandatory injunction for issuance of directions to defendant No.1 to withdraw from the portion of the house in his possession as a licensee. The plaintiff staked his claim on the basis of Will dated 21.4.1975 executed in respect of the house in question by Sujan Singh in favour of his wife Vidya Kaur for limited purposes and after her death in favour of the plaintiff. In the said suit appellants who are wife and sons respectively of Harbhajan Singh were impleaded as defendants No.5 to 7, apart from other brothers and sister of Gurdip Singh as defendants No.2 to 4. The suit was mainly contested by defendants No.1, 5 to 7 while defendants No.2 to 4 admitted the claim of the plaintiff. ESA No. 26 of 2011 2 It is apt to mention here that Gurdip Singh died during pendency of the suit and respondents No.1 to 4 were allowed to sue the suit being the legal representatives of Gurdip Singh. The stand taken by contesting defendants was that the Will dated 21.4.1975 was in favour of Vidya Kaur, wife of Sujan Singh and mother of defendant No.1. After the death of Sujan Singh she gets right in the house in question and on 16.10.1996 she executed a legal and valid Will in favour of defendant No.5 bequeathing half share in the house in her favour while some share was given to defendants No.6 and 7. That apart, vide registered sale deed dated 25.10.1996 8 marlas of remaining area of the house in dispute was sold to defendant No.1 for a sale consideration of Rs.2 lacs. Thus, they become the owners of the house in question. It was their further case that defendants No.5 to 7, on the basis of Will dated 16.10.1996, sold their respective shares in favour of Harparkash Singh and Manpreet Kaur vide registered sale deeds dated 14.8.2000 and 14.9.2000 respectively and also delivered the possession to the subsequent purchasers. The learned trial Court held the Will dated 21.4.1975 as a genuine document and observed that by virtue of the same limited rights were given to Vidya Kaur as a care-taker of the property in dispute, which has to devolve upon Gurdip Singh, after the death of Vidya Kaur. So far as Will dated 16.10.1996 in favour of defendants No.5 to 7 and sale deed dated 25.10.1996 in favour of defendant No.1 are concerned, the same were held to be surrounded with suspicion since the executant was not in sound and fit condition and without passing of any consideration. Accordingly, it was held that the same are not binding upon Gurdip Singh, the ultimate beneficiary of Will dated 21.4.1975 executed by Sujan Singh, the original owner. With regard to further sale of the suit property to Harparkash Singh and Manpreet Kaur, it was held that transaction is hit by principle of lis pendens. The suit was accordingly decreed in the following manner:- “In view of my detailed observation given above, I am of the opinion that the suit of the plaintiff requires to be decreed and the same is therefore, decreed with costs declaring that plaintiff Gurdip Singh who filed the suit was the sole absolute owner of House No. 581-l, Model ESA No. 26 of 2011 3 Town, Jalandhar and defendant No.1 who sold the property during the pendency of the suit had no right or interest for the purpose and status of defendant No.1 is that of licensee which stood terminated on filing of the present suit as well as portion in his possession required to be vacated within 2 months from today....” It has come up on record that said findings remained affirm up to the Hon'ble Apex Court. The subsequent purchasers also filed the suit but they failed to get any relief and the suit was dismissed. Later respondents No.1 to 4-decree holders filed an execution petition for execution of decree dated 15.9.2007 wherein the present appellants filed objections on the ground that neither any relief was claimed against them in the suit nor was granted by virtue of the said decree, therefore, the same is not executable against them. The learned Executing Court below dismissed their objections vide order dated 12.8.2011 and the appeal filed by them was also dismissed by the appellate Court below on 23.9.2011. Dis-satisfied with the same, the appellants have preferred the instant execution appeal. I have heard learned counsel for the appellants and have gone through the paper book carefully. Much has been argued by learned counsel for the appellants to contend that since the decree dated 15.9.2007 was passed only against defendant No.1, therefore, the same is not executable against them. He has further contended that the executing Court cannot go beyond the decree and hence, their objections ought to have been considered by the Court below and the rights of the decree holder have to be ascertained by deciding the executing petition as an independent suit. In support of his contention, learned counsel has placed reliance upon State of Madhya pradesh Vs. Mangilal Sharma, AIR 1998 SC 743, M/s Century Textiles Industries Ltd. Vs. Deepak Jain & Anr. 2009(2) Apex Court Judgments 292(SC) and Prem Singh & Ors. Vs. State of Haryana & Ors. 2010(Suppl.) Civil Court Cases 639(P&H). There is no dispute of the fact that the present appellants were being impleaded as defendants No.5 to 7 and they contested the suit. Their ESA No. 26 of 2011 4 claim was based on the Will dated 16.10.1996 purported to have been executed by Vidya Kaur in their favour. It is apparent from the perusal of the paper book that by virtue of Will dated 21.4.1975 Vidya Kaur was given right in the suit property only for limited purpose and the suit property was to devolve upon Gurdip Singh, after the death of Vidya Kaur, as per the wishes of the testator. As per their own stand of the appellants, the share received by them by virtue of Will dated 16.10.1996, was sold out by them to Harparkash Singh and Manpreet Kaur vide registered sale deeds dated 14.8.200 and 14.9.2000. According to them, they delivered the possession of the sold property to the subsequent purchasers. The stand on which they contested the main suit is totally inconsistent with the pleas now taken by them while filing the objections to the effect that they are in possession of the house in dispute as owner. Once they sold away their share, it cannot be said that they are occupying the suit property as owner. Even otherwise, they admittedly stepped into the shoes of Vidya Kaur, who otherwise was found not only incompetent to execute the same, but the same was also found surrounded with suspicious circumstances. The sale deed executed by them in favour of subsequent purchasers was found to be hit by lis pendens. Once this is the situation, their occupation over the suit property can at best be termed as being the legal representatives of defendant No.1 Harbhajan Singh, against whom the decree dated 15.9.2007 was passed. Once defendant No.1 has been ordered to be ousted from the suit property, it does not lie in the mouth of the appellants, who are legal representatives of Harbhajan Singh to say that the said decree is not executable against them and for ascertaining the rights, execution petition is liable to be tried as an independent suit, while decree dated 15.9.2007 is binding upon them. No over-riding effect has tried to be given to the decree dated 15.9.2007 by the Courts below by dismissing the objections of the appellants, as such no benefit could be derived by them from the case laws, referred to above. No fault of ambiguity could be found with the approach adopted by the Courts below. The instant appeal, being without any merit, is accordingly dismissed in limine. (ARVIND KUMAR) November 03,2011 JUDGE Jiten