SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. S.B. Civil Writ Petition No.1711/08 under Article 226 of the Constitution of India. Date of Order:- 30.1.2009 PRESENT HON'BLE MR.JUSTICE PRAKASH TATIA Mr.Suresh Shrimali for the petitioner. Mr. BL Swami for non-petitioners no.2 and 3. REPORTABLE BY THE COURT: Heard learned counsel for the parties. The present writ petition has been preferred by the petitioner to challenge the part of the order dated 19.2.2008 by which the petitioner's objection petition dated 26.8.2004 has been dismissed by the executing court. Brief facts of the case are that plaintiff Pushpa Devi and Mangi Lal, who is husband of Pushpa Devi, filed a suit for SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 2 permanent injunction against defendants Bhanwar Singh and Sampat Ram with the allegation that the plaintiffs purchased the plot in dispute from defendant no.2 on 18.7.1978 and also took the possession and constructed boundary wall over the property in dispute. Defendant no.1 wants to forcibly dispossess the plaintiffs, therefore, they be restrained from evicting the plaintiffs from the property in dispute. Defendant no.1-objector submitted that land in question is agricultural land and, therefore, suit of the plaintiff in civil court is not maintainable. The defendant stated that he is in possession of the agricultural land. After trial, the trial court- Civil Judge (JD), Sojat District Pali vide judgment and decree dated 19.3.1997, rejected the defendant's plea that the land in question is agricultural land and also rejected the plea of possession. The defendant Bhanwar Singh has preferred Appeal No.5/97 wherein the appellate court confirmed the finding that the plaintiffs are in possession of the property in dispute and the land in question is not agricultural land. S.B. Civil Regular Second Appeal No.390/99 preferred to challenge the first appellate court's judgment and decree dated 17.9.1999, was dismissed by this Court on 7.4.2003 after specifically upholding the finding of the courts below that the SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 3 land in question is not agricultural land and title vests in the plaintiffs for the property in question. After dismissal of the second appeal, on 31.5.2004, the decree holder submitted execution petition and prayed that in view of the decree passed in his favour, the decree holder may be given possession of the plot in dispute. In said execution petition, several objections were filed which are (1) petition under Section 47, CPC, (2) application under Section 44 of the evidence Act, (3) application under Order 21 Rule 97, 99, 107 and 103 read with Section 151, CPC and (4) objection petition dated 26.8.2004. All those petitions have been decided by the executing court by common order dated 19.2.2008. Hence this writ petition has been preferred by the petitioner-objector. The learned counsel for the non-petitioners supported the order of the trial court. I considered the submissions of the learned counsel for the parties and perused the judgments relied upon by the learned counsel for the petitioner. From the bare perusal of the objection petition, it is clear that the contention of the objector-judgment debtor is that the property in dispute is agricultural land. The plaintiff has no title in SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 4 her favour for the property in question. The defendant was in possession of the suit property. He stated that he purchased the property in the year 1981, whereas the plaintiff's claim is that she purchased the property in the year 1978 but since the land was agricultural land and could not have been sold in pieces and, therefore, sale of 1978 set up by the plaintiff is void in view of Section 42 of the Rajasthan Tenancy Act. He also stated that the decree-holder obtained the Patta from Gram Panchayat by fraud. From above facts, it is clear that all above pleas were the pleas which were not only with respect to the facts which were subject matter in the suit itself but also have been decided against the judgment debtor-objector-petitioner by the decree passed by the court and which was upheld ultimately by the High Court. The executing court could not have looked behind the decree and even if the facts are considered then all objections raised by the petitioner are pre-decree matter and already decided matter, therefore, the objection petition was frivolous. Faced with this situation, it has been argued that the decree for prohibitory injunction cannot be converted into mandatory injunction decree, as held by this Court in the case of Sewa Ram SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 5 vs. Devi Lal (1960) ILR (10) Rajasthan 1031). In said case, the decree-holder had decree in his favour which was decree for prohibitory injunction. The operative portion of the decree was as under:- “That the defendant shall leave a gully two feet wide between the northern wall of the plaintiff's house and the defendant;s open land i.e., the land which had not yet been built upon. As to the structure already put up by the defendant touching the two extreme ends of the plaintiff's said wall, the defendant when raising any future building thereon shall leave an open space one and a half feet in width between the plaintiff's said wall and any such future building or buildings.” The decree holder complained that the judgment debtor had carried out certain constructions in the chowk mentioned in the decree after same had been passed and contrary to the directions contained in the decree. The decree-holder, therefore, prayed that the said construction be ordered to be demolished. The executing court after holding enquiry, held as under:- “On considering the evidence as a whole, I am of the opinion that those portions of the judgment- SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 6 debtor's house that are situated on the ground floor and are in addition to the 'Pol' and 'Parchane' in the west and in addition to the room in the east were constructed after the decree. That is all construction which is in addition to that shown in the site plan prepared in the suit was carried out after the decree and should have been in accordance with the terms of the decree. If any portion of this construction violates the directions of the decree, it should be demolished.” When the matter came up before this Court, this Court observed that the executing court has not made any reference in his order to the evidence upon which he came to that conclusion. This Court further observed that the finding given in terms in which it was, was hardly definite and provided a very unsatisfactory basis for an order of demolition. Not only this, this Court found that even the first appellate court before whom the said order of executing court was challenged, also gave unsatisfactory order, rejected the judgment-debtor's objection petition. In that situation, an argument was advanced before this Court that the decree under execution was decree for prohibitory injunction and SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 7 not for mandatory injunction and, therefore, it was not open to the courts below to have converted it into sort of decree for mandatory injunction and ordered demolition thereunder. This Court,in above case, after considering the order 21 Rule 32, CPC, which provides for execution of the decree for injunction, observed that the question which emerges for determination in the facts of the case is whether the decree under execution in the present case falls within four walls of sub-rule (5) of Rule 32 or not, because it is obvious that if the decree fell outside the ambit of rule 32(5) of Order 21, it could only be executed in accordance with sub-rule (1), that is, by the detention of the judgment-debtor in the civil prison or by attachment of his property or both as the case may be. This Court held that sub-rule (5) applies to the decree for mandatory injunction only and not to decrees for prohibitory injunction, while sub-rule (1) applies to the decrees for both the prohibitory and mandatory injunction. Since the question involved in the case of Sewa Ram (supra) was limited to the extent that whether the decree could have been executed as decree for mandatory injunction even when the decree in fact was for prohibitory injunction, this Court held that a decree for prohibitory SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 8 injunction cannot be converted into decree for mandatory injunction by the executing court. The facts clearly reveals that in the judgment of Sewa Ram (supra), the point was not involved whether the executing court has power to pass appropriate order in execution proceedings and under inherent powers so as to give effect to the decree. It is settled law that when there are no powers given specifically by specific provision of law then to do justice, the court may exercise inherent powers under Section 151, CPC even when said prayer is not made by moving application under Section 151, CPC. Coming to the facts of the present case, it is clear that the plaintiff's possession over the suit property has been declared by the trial court, first appellate court and this High Court in second appeal. The executing court had no jurisdiction to entertain any plea of judgment debtor which was pre-decree matter and more, had no jurisdiction to entertain any plea raised by the judgment debtor contrary to finding recorded by court in decree. Therefore, any plea that plaintiff decree holder was not in possession of the suit property was the plea not entertainable. The nature of land has also been declared to be Abadi land and it is not the case of SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 9 the objector-judgment-debtor that he was in possession of any Abadi land. The question raised by the objector could not have been enquired into not only in execution petition but even in any subsequently filed suit (which has not been filed) by the objector as the issues would have been hit by the principles of resjudicata under Section 11 of the Civil Procedure Code. The executing court cannot hold that the judgment debtor was in possession of the property prior to filing of the suit which finding would have been contrary to the finding of the court in regular civil suit maintained upto the High Court. It is also settled law that person, not in possession, could not have been granted decree for prohibitory injunction and even suit for prohibitory injunction itself would not have been maintainable, if the plaintiff would not have been in possession of the property and would not have sought for decree for possession in the suit for injunction. Once it cannot be enquired whether the judgment debtor was in possession over the property in question since before filing of the suit by the plaintiff, then the judicial verdict in the term of decree is required to be given its due respect by throwing out the wrong doer judgment debtor by presuming in the light of finding of the court in main suit that SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 10 judgment debtor after filing of the suit by the plaintiff took over the possession of the property. The judgment debtor took over the possession of the property after filing of suit any time, is required to be presumed because of the reason that the court in main suit has decided the issue that plaintiff was in possession of the property. The finding recorded by the courts, not only binds both the parties but is resjudicata and prohibits the court from holding the trial on such issue. Therefore, the claim of objector-judgment debtor that he was in possession of the property, is liable to be rejected in the light of the binding decision given on issue in the decree. If the proposition submitted by the learned counsel for the petitioner-judgment debtor, is accepted that once the judgment debtor obtains possession of the suit property for which decree for prohibitory injunction has been granted by the court then no relief can be granted to the decree holder by the executing court holding a decree for mandatory injunction, then what will happen if the judgment debtor, who has been found not in possession by the court in decree after trial, comes in the executing court and states that since he took over possession of the property even after the SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 11 decree passed by the court of prohibitory injunction ? Whether the executing court will say that since the petitioner judgment debtor is in possession of the property, therefore, the decree for prohibitory injunction cannot be executed to grant relief of possession because so is not provided in the decree and only relief which can be granted is to put behind the bar the wrong doer or his property can be attached or he may be saddled with consequence of civil imprisonment and attachment of his properties. In my humble opinion, neither Sewa Ram's judgment says so nor that comes from the scheme of the Rules framed under Order 21 sub- rule (1) and sub-rule (5) of Rule 32,CPC. Whenever there are creases in the statute left out by legislation or created by arguments, then it is the duty of the court to iron out the creases so as to serve the justice. Where a decree of prohibitory injunction has been granted and if the judgment debtor takes possession of the property and the decree holder seeks to execute the decree so as to compel the judgment debtor to respect the possession of the decree holder, then that can be given effect to by moving out the obstructions. The such prohibitory decree means that the decree holder should SBC Writ Petition No.1711/08 Bhanwar Singh v. Civil Judge (JD), Sojat City & ors. 12 remain in possession and the judgment debtor should not take the possession of the property. Putting wrong doer judgment-debtor behind the bar and attaching his property, may not be any relief to decree holder but may be to give respect to the court's decree only. The courts are meant for protecting the rights of the parties and giving relief to them from aggressors and not meant only for maintaining respect for court's order but without relief to the citizen. In view of the above discussion, it is clear that the judgment of Sewa Ram(supra) delivered by this Court has been mis- interpreted only. Consequently, the writ petition is dismissed. (PRAKASH TATIA)J mlt.