ESA No.2674 of 1985 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. ESA No.2674 of 1985 Decided on 8 .7.2011. Basant Singh and others ...... Appellants. Versus Sant Singh and others ....... Respondent. CORAM:-HON'BLE MR. JUSTICE K.C. PURI Present :- Mr. G.S.Punia, Advocate for the appellants. Mr. Surender Garg, Advocate for respondent Nos.1 and 2. Mr. Kabir Sarin, Advocate for respondent Nos.3 to 6. K.C.PURI, J. This is execution second appeal against the order dated 24.8.1985 passed by learned District Judge, Faridkot vide which the appeal preferred by the present appellants against the order dated 23.2.1985 passed by Senior Sub Judge, Faridkot was dismissed. The case of the objector/appellant pleaded in the application is that the suit of the plaintiff was dismissed by the trial Court but the learned District Judge, Faridkot passed a decree for possession of 3 kanals and 16 marlas of land out of khasra Nos.1462 and 1474 in terms of the report of the local commissioner in favour of Sant Singh and other decree holders and against Roop Singh and others. Aggrieved by the same, the judgment debtors went up in appeal to the High Court. This Court upheld the decree ESA No.2674 of 1985 2 passed by learned District Judge, after adding the following rider on it :- “that the plaintiff-decree holders shall not be entitled to execute the decree unless they surrender the land measuring 3 kanals 16 marlas comprised of khasra No.1750/1467 and 1472 if they are in its possession.” The decree holders have taken out the execution of this decree passed by this Court. The JDs craved that they may be put in possession of Khasra No.1750/1467 and 1472 measuring 3 kanals 16 marlas which is in possession of decree holders. A warrant of possession of this land was issued in favour of the JDs and against the decree holders. It is against this order that Chand Singh objector has filed this objection petition. For convenience, it is necessary to identify the parties to these proceedings. Chand Singh is the objector hereinafter he shall be called the first party for the objector Sant Singh and Balwant Singh respondents No. 1 and 2 are the decree holders. Hereinafter they shall be called the second party. Roop Singh, Basant Singh and Jaswant Singh respondents No. 3 to 5 are the JDs. Hereinafter they shall be called the third party. Mukand Singh, Jarnail Singh and Jagir Kaur respondents No. 6 to 8 got similar interest in the disputed property as Chand Singh of the first party and hereinafter they shall be called the fourth party. It may be recalled that the first party has filed this objection petition against the order dated 10.9.1983 of the issue of the warrant of actual possession in favour of the third party against the second party, in respect of the land measuring 3 kanals 16 marlas bearing khasra Nos. 1750/1467 (2-9) and 1497/1472 (1-7) situate in the revenue estate of village Dhul Kot Tehsil Faridkot and for setting aside and cancelling the same. Hereinafter this land shall be called parcel A of the ESA No.2674 of 1985 3 land. Para 3-A, it is stated by the first party that the second party and the third party have colluded with each other and that in order to practice fraud they had made a statement that its possession may be delivered to the third party. Actually Chand Singh of the first party and Mukand Singh, Jarnail Singh and Jagir Kaur of the fourth party are in possession of this land. Therefore, it is prayed that the warrant of possession issued by the Court of parcel A of the land, may be set aside and cancelled. As expected, the fourth party has endorsed the case of the first party. In their written reply though the second party have not specifically denied that Chand Singh of the first party is in possession, yet they have stated that the third party has been in possession of parcel A of the land since long. The main contest to this objection petition comes from the third party. It is denied by them that the first party or the fourth party are in possession of the land in question. It is pleaded by him that there is collusion between the first party and the fourth party on one hand and the second party on the other hand and the second party has put the first party and the fourth party in possession with the ulterior object of harassing the third party to deprive them of the actual possession of the parcel A of the land. On the pleadings of the parties, following issues were framed :- 1.Whether the objectors are in possession of Khasra Numbers 1750/1467/2-9 and Khasra Number 1497/1472 measuring 1 kanal 7 marlas of land and whether they are in possession on the day when the order of Hon'ble High Court passed? ESA No.2674 of 1985 4 2. Relief. The learned trial Court, after hearing both the sides, allowed the objection petition. Feeling dissatisfied with the above said order, the objectors preferred the first appeal, which was heard and dismissed by learned District Judge, vide judgment dated 24.8.1985. Therefore, the present execution second appeal has been preferred. I have heard learned counsel for the parties and have gone through the records of the case. So far as the admitted facts are concerned plaintiff filed suit for possession claiming that exchange between the plaintiff/decree holder and defendants is null and void. The trial Court dismissed the suit of the plaintiff. The plaintiff-decree holder, mentioned as second party in the present proceedings, preferred appeal and that appeal was accepted and exchange was held null and void. Feeling aggrieved against the said judgment passed by the First Appellate Court, defendants/judgment debtors now mentioned as 3rd party preferred the regular second appeal and the High Court dismissed the appeal but observed that plaintiffs shall be entitled to the possession in case they surrender the possession of the land said to be received by them in exchange. The warrant of possession were accordingly issued. However, the objections were filed by the First party i.e. Chand Singh claiming ownership right in respect of land measuring 3kanals comprising of khasra No.1472. Their objections were allowed. The appeal preferred by the present appellant was dismissed by the first Appellate Court and both these ESA No.2674 of 1985 5 judgments have been challenged in the present appeal. The following substantial question has arisen in the present appeal :- 1. Whether both the Courts below have misinterpreted and misread the evidence on the file and judgment of both the Courts below is perverse ? The main controversy in the present appeal is whether the objectors have any legal right in the suit property and are entitled to the possession. The main sufferer in the present case is the decree- holder/plaintiff in the original suit for possession. They have not received the possession in spite of the decree which became final between the plaintiff and the defendant. To appreciate the facts of the case, the objections filed by Chand Singh are material. It is pleaded that in report dated 22.8.1983 on the warrant of possession, the Kanungo has mentioned that Chand Singh objector party No.1, Mukand Singh, Jarnail Singh sons of Saudagar Singh, Party No.1 and party No.IV have sown Narma and Dhan crops on the said land. It is further mentioned that counsel for the decree holder Shri K.C.Puri had stated in the High Court that Mukand Singh and Jarnail Singh are in possession of the suit property. (However, it is made clear that Shri K.C.Puri, Advocate was the then another Senior Advocate and not the undersigned). So, it is pleaded in the objection petition that objector party No.1 and party No.4 are in possession of the suit property. Sant Singh and Balwant Singh decree holders have pleaded that judgment debtors Mukand Singh and Jarnail Singh are in possession of the khasra Nos.1750/1467 and 1497/1472. Mukand Singh and Jarnail Singh have pleaded that they are in ESA No.2674 of 1985 6 possession of these khasra numbers for the last 20 years and respondent Nos. 3 to 5 are not in possession. In the revenue record produced before the trial Court Basant Singh, Roop Singh and Jaswant Singh have been shown in possession of Khasra No. 1750/1467/2Kanals 9Marlas and 1497/1472/1-7Marlas hereinafter mentioned as disputed land for the decision of the present objections. The main controversy in the present appeal is whether objector Chand Singh and party and Mukand Singh party No.4 have any legal right in the disputed property. The revenue record constantly produced from 1968-69 i.e. Ex.D-5 jamabandi shows that Basant Singh and Roop Singh and Jaswant Singh are owners in possession of the suit property. Party No.1 and Party No.4 have not been shown in possession in the ownership column or in the column of possession, and these entries continued till the year 1978-79. Party No.1 and party No.4 could not point out any document on the file regarding their legal right in the suit property. The case of the DH set up during the course of argument is that party No.1 and party No.4 might have put in possession by JD party No.3 just to defeat the rights of the party No.2 i.e. decree holder. According to order 21 rules 97 and 99 CPC, all the questions, including the question relating to the right, title or interest in the suit property arising between the parties or their representatives shall be determined by the Court dealing with the application and not by a separate suit. So, the controversy of ownership and possession in respect of the suit property between the parties has to be decided in the present proceedings. ESA No.2674 of 1985 7 In the revenue record Judgment debtors have been shown owners in possession of the suit property and objector Party No.1 and party No.4 have not been shown having any legal right in the property. So, both the Courts below have lost sight of the fact that mere possession is not sufficient to tilt the evidence in favour of objectors. The Full Bench of Kerala High Court in authority Varkey Joseph Pothanikatt v The Board of Revenue, Trivandrum & others AIR1978 Kerala 149 has held that resistance by the 3rd party to the possession can only be maintained if there is element of good faith. In the said case, it was ordered that decree holder shall be entitled to the fruits of the decree. So far are authorities Narayanan Rajenderan and another vs. Lekshmy Sarojini and others (2009) 5 Supreme Court Cases 264 ; Sheel Chand vs. Prakash Chand (1998) 6 Supreme Court Cases 683 and Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others (1999) 3 Supreme Court Cases 722 relied upon by the learned counsel for the respondents are concerned, in these authorities, it has been held that the High Court can only interfere in case substantial questions of law are framed and there is perversity, illegality in the finding recorded by both the Courts below. There is no dispute to that proposition of law. However, when the judgment of both the Courts below are erroneous, perverse in that case, it cannot be said that High Court cannot interfere in view of provisions of Section 100 of the CPC. The Courts are meant to advance the cause of justice and not to thwart it. The judgment of both the Courts below are perverse, illegal in as much as the right of Chand Singh objector has been ESA No.2674 of 1985 8 upheld only on the ground of having been found in possession of the suit property but ignoring the fact that Chand Singh party No.1 and party No.4 have not pleaded any legal right in the objection in the suit property. Technicalities can never be a hurdle in dispensing the real justice to the parties. As observed above, the decree holder has not got the fruits of decree passed on 9.2.1973. The dispute regarding possession of disputed land detailed above, is between the objector and the JD and there is concurrent finding of fact recorded by both the Courts below that JD is not in possession of the disputed land mentioned in the objection petition. The intention of the High Court while making observations referred to in para No.3 of the grounds of appeal were based upon equity. It was observed by the High Court that in case the decree holder has driven any benefit in the exchange in that case he must return that benefit by surrendering the possession of the said land if he is found in possession. The decree holder has not been found in possession of the disputed land in the present case, even according to concurrent finding recorded by both the Courts below. So far as the inter se dispute between the JD and objectors is concerned, the same should have been decided by both the Courts below in an effective manner. Since the objector party No.1 and party No.4 have not pleaded about their rights in the property and as such their objection should not have been upheld by both the Courts below and on that account judgment of both the Courts below accepting the objection are perverse. ESA No.2674 of 1985 9 Consequently, the second execution appeal stands accepted and the orders of both the Courts below stand set aside and the objection filed by the objector stands dismissed with costs throughout. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 8 , 2011 sv