C.R. No. 5490 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5490 of 2011 Date of Decision: 11.11.2011 Sher Singh ....Petitioner. Versus Mahender and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Shailender Sharma, Advocate for the petitioner. AJAY KUMAR MITTAL, J. 1. In this revision petition filed under Article 227 of the Constitution of India, the petitioner has prayed for setting aside the order dated 23.8.2008 (Annexure P-3) passed by the trial court and order dated 25.1.2011 (Annexure P-4) passed by the appellate Court whereby the application filed by the respondents under Order 21 Rule 32 read with Section 151 of the Code of Civil Procedure (in short “the Code”), was allowed. 2. Briefly stated, the facts necessary for adjudication of the present petition are that the predecessor in interest of respondents No.1 to 6 and respondent No.7-plaintiffs filed a suit on 5.8.1977 for permanent injunction and in the alternative for possession on the ground that they were the owners and in possession of the land in dispute and the defendant had no concern with the same. The C.R. No. 5490 of 2011 -2- defendant filed an application under Section 145 of the Code of Criminal Procedure before the SDM who declared the defendant to be in possession. Thereafter, the suit land was attached and was given on sapurdari to the SHO, Police Station, Palwal. The defendant wanted to take possession of the suit land after the decision by the SDM. The plaintiffs challenged the order of the SDM and having failed in getting the stay order filed the suit. The suit of the plaintiffs was dismissed vide judgment and decree dated 16.2.1978 by Sub Judge II Class, Palwal holding that the plaintiffs had not produced any document of title in order to prove their ownership of the land in dispute. The plaintiffs filed an appeal before the appellate court challenging the judgment and decree dated 16.2.1978. The appellate court vide judgment and decree dated 2.5.1979 allowed the appeal and set aside the judgment and decree of the trial court, against which the defendant filed regular second appeal bearing RSA No. 1505 of 1979 in this Court. This Court vide order dated 15.5.1992 held that the defendant had died in the year 1980 and no application for impleading his LRs was moved and the appeal stood abated. The plaintiffs filed execution application under Order 21 Rule 11 of the Code and the defendant filed objections. The executing court vide order dated 23.1.1998 dismissed the execution application and allowed the objections filed by the defendant. Against the order dated 23.1.1998, the plaintiffs filed revision petition bearing CR No. 2393 of 1998 before this Court which was dismissed vide order dated 20.9.1999. Thereafter, the plaintiffs filed an application under Order 21 Rule 32 read with Section 151 of the Code against the defendant. The trial court vide order dated 23.8.2008 allowed the said C.R. No. 5490 of 2011 -3- application holding that the defendant had committed contempt of court. Against the order dated 23.8.2008, the petitioner filed an appeal before the appellate court, i.e. Additional District Judge, Palwal and the same was dismissed vide order dated 25.1.2011. Hence the present petition. 3. Learned counsel for the petitioner submitted that the trial court had dismissed the suit of the plaintiffs-respondents for permanent injunction, wherein finding had been given that the plaintiffs were not in possession. Though the appellate court vide judgment dated 2.5.1979 reversed the finding of the trial court to the extent that the plaintiffs were co-sharers but it was recorded that the possession of the defendant was nothing more than that of trespasser. In such a situation, the execution of the injunction decree could not be the remedy and only suit for possession had to be filed by the plaintiffs. According to the learned counsel, the decree being unexecutable, the detention/imprisonment for violation of the same was illegal and unjustified. 4. After hearing the learned counsel for the petitioner, I do not find any merit in the revision petition. 5. On the pleadings of the parties, the trial court had framed the following issues:- “1. Whether the applicant is entitled to the relief sought in his application? OPA 2. Whether the application is not maintainable?OPR 3. Whether the applicant has not come to the court with clean hands and its effect? OPR C.R. No. 5490 of 2011 -4- 4. Whether the application is not enforceable?OPR 5. Relief.” 6. The trial court while rejecting the objections filed by the petitioner had adjudicated issue No.1 with the following observations:- “9. After hearing both the learned counsel for the parties and perusing the entire evidence and the record on file, the considered opinion of mine qua this issue is as follows:- It is an admitted case that initially the present petitioners filed a suit for permanent injunction against the present respondents praying a restraint against them from forcibly dispossessing the present petitioners (the then plaintiffs). The then plaintiffs had claimed them to be exclusive owners in possession of the suit property. The said suit was dismissed vide judgment and decree dated 16.2.1978. The copy of the said judgment is placed on record as Mark-A but being an admitted document it is admissible. Perusal thereof reflects that though the present petitioners were not held to be owner in possession, but the judgment had not specifically considered the then defendants/present JDs to be in possession of the suit property, it was appreciated that the Panchayat Deh is shown as owner of the suit land as the property falls within the category of C.R. No. 5490 of 2011 -5- Shamlat Deh. Panchayat Deh only was recorded as owner in possession with respect to Khasra No. 137. It is also an admitted fact that appeal against the said judgment and decree was accepted and allowed in favour of the present petitioners vide judgment and decree dated 2.5.1979, the copy whereof is produced as Mark-B on the record. Perusal thereof reflects that plaintiffs/present petitioners were held to be owners in possession. It is specifically been appreciated that plaintiffs being co-sharers of the suit land are entitled to retain the possession of the same against all except for Gram Panchayat in which the suit land had vested. The learned appellate court had considered the order under section 145 Cr.P.C. as a mere police order holding the then defendants/ present JD as mere trespasser. Local Commissioner's report was also disregarded on the ground that local commissioner has superseded his power for reporting of possession of the defendants upon the suit land. Further it is also an admitted fact that Regular Second Appeal to this judgment was also dismissed vide order dated 15.5.1992 though it was not decided on merits and was dismissed on the ground that the sole appellant has died in the year 1980 still no LRs have been impleaded till the year 1992 but the fact remains that the judgment and C.R. No. 5490 of 2011 -6- decree dated 2.5.1979 holding the present petitioners as owner in possession of the property has attained finality. The defendants have miserably failed to challenge those proceedings at the appropriate stage. 10. In addition the plaintiff has produced Ex.P-4 the copy of judgment dated 22.8.2000 with respect to the suit for permanent injunction as filed by present JD against the present petitioners-DHs. Perusal thereof reflects that the JDs claiming themselves to be owners in possession of the suit property had prayed a restraint against present petitioners from his forcible dispossession. The said suit was dismissed holding the present petitioners as the owners in possession of the suit property. Thus all these civil judgments have denied the defendant to be in possession of the suit property rather have restrained the present respondents-JD from interfering into the peaceful possession and ownership of the present petitioners upon the suit property. But the JD till date are asserting their possession and occupation upon the suit property as has been impressed upon in the reply to the present petition also. In view of the entire previous decisions as mentioned above, the possession of the respondents-JDs upon the suit property if any definitely is in violation of the C.R. No. 5490 of 2011 -7- aforesaid decisions and amounts to contempt of court on their part. 11. The JDs though have relied upon the execution petition vide which the petitioners had prayed for warrant of possession dated 15.6.1996 and that the said petition was dismissed, but the said order of dismissal does not extend any benefit to the present respondents-JDs because execution petition was dismissed on the ground that the execution was for a suit for injunction where no decree of possession was passed in favour of the DH i.e. the alternative prayer of the present petitioners was not required to be considered as present petitioners were held to be owners in possession of the suit property. Thus the petition was dismissed not on the ground that the petitioners were not in possession, but on the ground that they being already in possession the warrant of possession will be wrong order. Revision to this effect was also dismissed for the same reason. The respondents have miserably failed to prove that the petitioners have ever been dispossessed during the pendency of the entire above proceedings. Now if statements of the witnesses of the respondents are perused three of them have reflected their total ignorance about above decision in favour of the petitioners. They have vaguely ignored about the C.R. No. 5490 of 2011 -8- fact that the present petitioners have been held to be owners in possession of the disputed property. Three of them while deposing in favour of possession of JDs have simply submitted about existence of his Bongas and Bitoras upon the suit property which otherwise is contrary to the previous decisions of civil court. In totality of the circumstances and keeping in view that the respondent-JDs are still impressing their possession upon the suit property, they are held to have violated the orders passed by the competent court of law. This issue is, therefore, decided in favour of the applicant/petitioners.” 7. The petitioner remained unsuccessful before the appellate court where the aforesaid findings were affirmed on appeal. The appellate court while dismissing the appeal had recorded as under:- “9. After having heard both the parties I have come to a conclusion that the plaintiffs-appellants- DHs want to enforce judgment and decree dated 2.5.1979 passed by the court of Shri I.M. Malik, the then learned Additional District Judge, Gurgaon on 2.5.1979. The present applicants had filed appeal against the judgment and decree dated 16.2.1978 passed by the court of Shri M.L. Sharma, the then learned Sub Judge, Palwal on 16.2.1978. In appeal, the then learned Additional District Judge Shri I.M. Malik accepted the appeal of the present applicants C.R. No. 5490 of 2011 -9- and decreed the suit as prayed for. The objection taken by the judgment-debtors in this execution petition is that the applicant-decree-holders are not in possession, rather the respondent is in possession. This plea amounts to interference in possession of the plaintiffs after passing of the decree dated 2.5.1979. 10. The argument of learned counsel for the appellants that in another execution petition the present appellants have prayed that they are entitled to take possession of the disputed property, therefore, they cannot be considered to be in possession is not tenable. In execution petition no. 50 which was decided on 23.1.1998 the executing court has held that the present appellants are already in possession. Therefore, when no relief of possession was granted by the court how the decree for possession can be executed. Therefore, in these circumstances the executing court in an earlier execution petition no. 50 of 15.6.1996 decided on 23.1.1998 has again held that the present appellants are in possession. It is quite glaring that the present JDs has filed a suit, the copy of judgment passed in that civil suit dated 22.8.2000 is Ex.P4. The said suit was dismissed against the present respondent. Therefore, it may be very well inferred that in civil suit C.R. No. 5490 of 2011 -10- judgment of which is Ex.P4, it was found that the judgment debtor was not in possession. Therefore, in these circumstances the judgment-debtor cannot say that he is in possession. The respondent has miserably failed to prove that the petitioners have ever been dispossessed during pendency of the civil proceedings. Therefore, it may be very well concluded that the judgment-debtors are claiming their possession against the spirit of judgment and decree dated 2.5.1979 as referred to above. Therefore, in these circumstances I found concurrence with the findings of learned Trial Court regarding issues No.1 and 2. I also found concurrence with the findings of learned Trial Court regarding issues No.3 and 4.” 8. Both the courts below on the basis of material on record concluded that the appellate court in its judgment and decree dated 2.5.1979 had recorded that the decree holders were co-sharers of the suit land and were entitled to retain the possession of the same against all except for Gram Panchayat in which the suit land had vested. It was also noticed that the judgment debtor had filed a suit for permanent injunction which was dismissed vide judgment dated 22.8.2000 (Ex.P4) where it was found that the judgment debtor was not in possession. Accordingly, it was held that the possession of the petitioner-judgment debtor if any as claimed by him would amount to interference in possession of the decree-holders after passing of the decree dated C.R. No. 5490 of 2011 -11- 2.5.1979 and in violation of the decisions of the civil court and, thus, the judgment-debtor was guilty of contempt of court. Under the circumstances, learned counsel for the petitioner was not justified in urging that the possession of the petitioner was of a trespasser in view of judgment dated 2.5.1979 and the suit for possession was the remedy. 9. Further, learned counsel for the petitioner was unable to show any illegality or perversity in the concurrent findings of fact recorded by the courts below which may warrant interference in revisional jurisdiction of this Court. Accordingly, there is no merit in the revision petition and the same is hereby dismissed. November 11, 2011 (AJAY KUMAR MITTAL) gbs JUDGE