CR No.6129 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6129 of 2009 (O&M) Date of Decision: 21.09.2010 Nikka Singh ....Petitioner Vs. Smt.Gautam Kaur & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Arun Jain, Sr. Advocate, with Mr.Amit Jain, Advocate, for the petitioner. Mr.Rajesh Gupta, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) The petitioner by way of this revision petition has challenged the order dated 3.8.2009, passed by the learned Civil Judge (Sr.Division), Hisar, vide which two applications – one filed by the objectors/respondents CR No.6129 of 2009 2 and second filed by the decree holder/petitioner for delivery of possession, were ordered to be dismissed. The objectors/respondents filed objections claiming that the execution application is false, frivolous, vexatious and filed in collusion with the Judgment Debtors, to defraud the owners and purchasers of the land bona fide, for consideration. The land in question is situated in Village Simbal Tehsil Tohana District Fatehabad beyond the territorial jurisdiction of the Executing Court. The proceedings for execution or resultant act was said to be null and void and without jurisdiction. Objectors claimed themselves to be the owners in possession of the land measuring 69 kanals 4 marlas situated in Village Simbal Tehsil Tohana District Fatehabad which fell to their share in partition vide mutation No.1053 dated 23.10.2006. Ex parte decree for specific performance dated 2.8.1997 passed by Shri B.L.Singhal, the then learned Additional District Judge was said to be collusive. It was the case of the objectors, that the suit was filed by Nikka Singh on the basis of agreement to sell dated 16.10.1984 allegedly executed by Gurnam Kaur for herself and alleged attorney of Joginder Singh to sell the land measuring 39 kanals 9 marlas, whereas Smt.Gurnam Kaur and Joginder Singh were owners to the extent of 35 kanals 7 marlas of land. Share of Smt.Gurnam Kaur was recorded as 1/4th share, while that of Joginder Singh as 2/21 share out of total land measuring 212 kanals 5 marlas, but the decree holder got the sale deed of 39 kanals 19 marlas. Secondly, it was the case, that during the proceedings, matter CR No.6129 of 2009 3 was settled vide written compromise and the claim of Nikka Singh under the agreement stood adjusted and satisfied, and that he delivered the possession. Nikka Singh by concealing these facts filed an appeal and got ex parte collusive decree of specific performance only to defraud bona fide purchasers for consideration. Other objection raised was, that Amarjit Singh son of Nikka Singh is the attesting witness to the sale deed dated 28.6.1994, whereas Joginder Singh and Gurkirat Singh sold 34 kanals 15 marlas of land to Ranjha Ram etc.. That sale deed was also dated 30.4.2009 which was got executed and registered through the court. Sale deed dated 30.4.2009 which was executed and registered by said Nikka Singh through the court was said to be ipso facto non-est and did not create any interest in the vendees. Execution application was, therefore, said to be collusive between Nikka Singh and other Judgment debtors who had no interest in the suit property, and the suit was merely a mock trial. The case of Nikka Singh in the plaint and agreement to sell was that he was in actual possession of the land and he also led evidence in the shape of agreement and affidavit in support of this stand. The learned court did not pass any decree for actual possession in favour of the decree holder, and as such no possession could be delivered to the decree holder in the execution of the decree. It was also the case that co-sharer had partitioned the joint land and taken possession of specific numbers at the spot and the parties had come in possession of their respective numbers. CR No.6129 of 2009 4 The case set up was, that no execution application, survived as the sale deed was registered in the name of Nikka Singh on 30.4.2009 and earlier to it, objectors were not aware of the decree or execution application. Prayer made was, that the objections be allowed and sale deed dated 30.4.2009 be recalled. In the reply, the decree holder took objection, that the objections were false and vexatious and that the objection petition was barred under Order 21 Rule 102 read with section 151 of the Code of Civil Procedure (for short the Code). Locus standi of the objectors to file the objections was also raised. It was said that the objections have been filed in collusion with the judgment debtors. The case of the decree holder was that the objectors could not claim themselves bona fide purchasers for consideration of the land in question. It was the case of the decree holder that objectors have no title or interest in the land covered by the judgment and decree to be executed. It was also the stand of the decree holder that the land was situated in Village Simbal Tehsil Tohana District Fatehabad, whereas the judgment and decree was passed at Hisar, therefore, the court had no jurisdiction to entertain and try the petition. Decree holder further pleaded that it was not disclosed as to how and when the objectors became owners in possession of the land measuring 69 kanals 4 marlas. Sale by Gurnam Kaur on her behalf and as attorney of Joginder Singh was pressed into service. It was also pleaded, that the sale deed was got executed by the court as per the judgment and decree passed by the CR No.6129 of 2009 5 learned court. It was denied that claim of Nikka Singh was adjusted and settled. It was also denied that Amarjit Singh son of decree holder signed the sale deed as a witness. The sale deed was said to be legal, valid and binding on entire world including the objectors. Partition between the co- sharers was said to have no effect on the right and title of the decree holder as it took place during the subsistence of the judgment and decree for specific performance of agreement to sell. The decree holder claimed that he was entitled to actual and physical possession of the land in suit. It was denied that the objectors only came to know about the impugned judgment and decree on 30.4.2009, therefore, it was prayed that the objection petition be dismissed with costs and warrant of possession be issued in favour of the decree holder. Learned trial court on the pleadings referred to above recorded, that the application for delivery of possession was based on fact that the decree holder filed a civil suit for specific performance of agreement to sell dated 16.10.1984 qua land measuring 39 kanals 19 marlas as detailed in para No.1 of the application. The suit was partly decreed vide judgment and decree dated 10.11.1994 by the learned trial court and in appeal learned Additional District Judge Hisar vide judgment and decree dated 2.8.1997 decreed the suit in its entirety for land measuring 39 kanals 19 marlas. The sale deed was executed and registered, through Shri Rajiv Gupta, execution clerk of the court at Tohana on 30.4.2009. The case of the petitioner is that judgment debtors illegally with a view to cause wrongful loss and harm to decree holder and to delay CR No.6129 of 2009 6 and defeat the decree, transferred the land to some other persons and therefore, the decree holder was entitled to actual and physical possession even from those persons, who were the subsequent transferees and found in possession of the land. The case of the decree holder was that judgment debtors were in actual and physical possession of the land at the time of filing of the suit and at the time of entering into agreement to sell, therefore, the case was that warrant of possession be issued regarding the land measuring 39 kanals 19 marlas. The stand of the objectors was, that the application for delivery of possession was not maintainable because in the suit filed by the decree holder the stand taken was that he was in possession of the suit property and that the court ordered the execution of the sale deed which was executed by appointing an official of the court and therefore, nothing remains in the execution as the execution stood satisfied. Learned executing court further observed that the stand of objector was that the land of which the decree holder sought possession was situated in Village Simbal Tehsil Tohana District Fatehabad and objectors are owners in possession of land total measuring 69 kanals 4 marlas having fallen to their share vide mutation No.1052 dated 23.10.2003. Ex parte decree in favour of the decree holder was said to be collusive and therefore, execution of the sale deed did not create any interest in favour of the decree holder. Decree holder, on the other hand claimed, that as the sale in CR No.6129 of 2009 7 favour of the objectors was after the passing of the decree, therefore, was liable to be ignored and that the objectors had no locus standi to resist or obstruct the execution of the decree. Learned executing court on appreciation of pleadings and the contentions referred to above, came to the conclusion that the objectors have rightly contended that the plaintiff/decree holder in suit for specific performance of agreement to sell, had pleaded that he was already in possession of the suit property. No possession was claimed in the decree. Thus, the court came to the conclusion that on execution of the sale deed decree stood satisfied. The court gave liberty to the decree holders to file a fresh suit to safeguard his interest, if any, as it was not possible for the court to go behind the decree. The objectors were, therefore, given liberty to challenge the aforesaid decree and judgment on the ground of fraud. In view of the fact that the decree was satisfied file was consigned to the record room. Mr. Amit Jain, learned counsel for the petitioner has challenged the impugned part of order vide which the prayer of the petitioner for issuance of warrant of possession was declined by contending, that the learned executing court to execute the decree for specific performance was required to issue warrant of possession. In support of his contention, learned counsel for the petitioner placed reliance on the judgment of Hon'ble Supreme Court in the case of Babu Lal Vs. M/s Hazari Lal Kishori Lal and Ors. AIR 1982 SC 818, wherein Hon'ble Supreme Court was pleased to lay down that Section 22 of CR No.6129 of 2009 8 the Specific Relief Act (for short the Act) which enacts a rule of pleading, provides that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely he may ask for possession or for partition or for separate possession including the relief of specific performance. These reliefs he can claim, notwithstanding contained in the Code of Civil Procedure, to the contrary. Sub section 2 of Section 22 of the Specific Relief Act, however, specifically provides, that these reliefs cannot be granted by the court unless they have been expressly claimed by the plaintiff in the suit. Proviso to this sub rule 2, however, says that where the plaintiff has not claimed a relief in his plaint in the initial stages of the suit, the court shall permit the plaintiff at any stage of proceedings to include the one or more of the reliefs by means of amendment of the plaint, on such terms as it may deem proper. The only purpose of this newly enacted provision was to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications. Hon'ble Supreme Court in the case of Babu Lal Vs. M/s Hazari Lal Kishori Lal and Ors. (supra) further held as under:- “ The expression “in an appropriate case” in S.22 (1) is very significant. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances CR No.6129 of 2009 9 demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Besides, the proviso to sub-sec. (2) of S.22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief “at any stage of the proceedings”. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree- holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of S.55 (1) of the T.P.Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits. The word “proceedings” has not been defined in the Act. That term is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning CR No.6129 of 2009 10 attached to it, but open the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word “proceedings” in S.22 includes execution proceedings also.” The contention of the learned senior counsel was, that in view of judgment referred to above it was open to the executing court to order the warrant of possession. Learned senior counsel for the petitioner also placed reliance on the judgment of this court in the case of Jasmer Singh Vs. Fakiria & Anr. CR No.53 of 2008 decided on 17.9.2008, wherein observations were made by this court that while allowing prayer for specific performance all powers vest with executing court which are required to give full effect to decree for specific performance and the vendor is not allowed to take such objection qua possession after receiving consideration and execution of the sale deed. Reliance on the judgment of this court in the case of Jasmer Singh Vs. Fakiria & Anr (supra) is totally misconceived as the dispute in the said case was as to whether an order and decree passed against the transferor binds the transferee pendente lite and not as to whether in a suit for specific performance the relief of possession was required to be always issued, as contended. Learned senior counsel for the Petitioner thereafter placed reliance on the judgment of Hon'ble High Court of Karnataka in the case of CR No.6129 of 2009 11 Smt.Vasantibai (Deceased) by LR. Vs. Mallappa Narasappa Ramankatti (deceased) by L.Rs. 2003 (1) RCR (Civil) 519, wherein Hon'ble Karnataka High Court was pleased to lay down that decree granting specific performance of the contract includes directions to deliver possession of the property. Reliance thereafter was placed on the judgment of Hon'ble Delhi High Court in the case of Jagdish Chander Sharma Vs. Naresh Chander 2004 (3) RCR (Civil) 81, wherein Hon'ble Delhi High Court was pleased to lay down that in execution of decree for specific performance without any direction to deliver possession the executing court can order transfer of possession to the decree holder even in the absence of specific prayer to this effect in the plaint, as the relief of possession is inherent in a decree for specific performance. Finally, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Usha Sinha Vs. Dina Ram and Ors. 2008 (3) RCR (Civil) 145, wherein Hon'ble Supreme Court was pleased to lay down that in the title suit pending between the plaintiff and defendant, third party purchasing the property from defendant thereafter was bound by the decree and lis pendens itself would be treated as a constructive notice to a purchaser that he is bound by a decree to be passed in the pending suit. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. Judgments relied upon by the petitioner have no application to the facts of the case in hand. It is not in dispute, that the suit filed by the CR No.6129 of 2009 12 plaintiff was for specific performance of agreement to sell and not for possession so that it could be treated to include the claim of possession. The stand of the plaintiff/petitioner in the suit was, that he was already in possession of the property in dispute and therefore, intentionally failed to seek relief of possession. Implied relief of possession was also not in agreement which could attract the judgments referred to above, on which reliance was placed by the learned senior counsel for the petitioner. Hon'ble Supreme Court in the case of Adcon Electronics Pvt. Ltd. Vs. Daulat 2003 (1) RCR (Civil) 806, was pleased to lay down that in a suit for specific performance of agreement for sale of the suit property, wherein relief of delivery of suit property is not claimed, cannot be treated as 'suit for land'. Suit simpliciter for specific performance of contract of sale of land is a suit for enforcement of terms of the contract wherein the title to the land is not the subject-matter of the suit and therefore, the petitioner was not entitled to actual possession of the property. Again Hon'ble Supreme Court in the case of Shankar Popat Gaidhani Vs. Hiraman Umaji More (Dead) by LRs. And Ors 2003 (4) SCC 100, authoritatively laid down that where in a suit for specific performance of contract no delivery of possession was directed to be given to the purchaser and said decree was not challenged by the purchaser as the land was in possession of the tenants who were not represented in appeal before the High Court. Order of High Court modifying the decree so as to construe it to as directing the delivery of possession was ordered to be set aside. CR No.6129 of 2009 13 In the case in hand, the plaintiff had not claimed possession, by claiming that the property was already in possession of the plaintiff/decree holder, the decree, therefore, could not be construed to include a decree for possession, as contended by the learned counsel for the petitioner. In view of the settled law laid down by the Hon'ble Supreme Court referred to above holding therein, that in the absence of a decree for possession the decree holder cannot claim possession, the order passed by the learned executing court is in consonance with settled law, which does not call for any interference by this court in exercise of revisional jurisdiction. No merit. Dismissed. 21.09.2010 (Vinod K.Sharma) rp Judge