Civil Revision No. 2550 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2550 of 2006 (O&M) Date of decision: 22.10.2009 Kashmiri Lal ....Petitioner Versus Nar Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Rakesh Gupta, Advocate, for the petitioner. Mr. Rajinder Goyal, Advocate, for respondents No. 1 to 3. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of Civil Revision No. 2550 of 2006 titled Kashmiri Lal Vs. Nar Singh and others and Civil Revision No. 2551 of 2006 titled Pawan Kumar and another Vs. Nar Singh and others, as common questions of law and facts are involved. For brevity sake, facts are being taken from Civil Revision No. 2550 of 2006 titled Kashmiri Lal Vs. Nar Singh and others. The plaintiff/respondents filed a suit for possession, in which ex parte decree was passed on 17.2.1988. Decree passed by the learned Court reads as under: - “Claim for a decree for possession in respect of the suit land detailed in para No. 5 of the plaint be passed with costs in favour of the plaintiff and against the defendants. Detailed in Para No. 5 5-7 That the defts have illegally encroached upon a Civil Revision No. 2550 of 2006 (O&M) -2- portion of the suit land measuring about 15 mls. The site plan will be produced lateron stating the exact area in encroachment. Plaint presented on : 11.4.86 This suit is coming on this date for final disposal before me (Sh. Subhash Goyal, HCS, Sub Judge, Ist Class, Kaithal) in the presence of Sh. A.K. Nirwani, Advocate for the plaintiff. It is ordered that the plaintiff is hereby decreed. An ex parte decree for possession is hereby passed in favour of the plaintiff and against the defendants regarding the suit land.” Primary dispute in the case was regarding various shops constructed by different shareholders in khasra No. 463 measuring 9 kanals 10 marlas, which was recorded as gair mumkin rasta in the revenue record. The piece of land in dispute was said to be jointly held by various persons of village Pati Gadar. Though the land in dispute was described as gair mumkin rasta, but only part of the said land was used as rasta. When the land came into municipal limits the passage was metalled and a part was left as berms, whereas remaining part remained in possession of various proprietors, where houses and shops were constructed. The petitioner is in possession of 10 marlas of land in pursuance to the purchase by way of registered sale deed dated 2.12.1986. He purchased the shop from Pirthi S/o Nathu S/o Ramji Lal. Number of shops with land were sold to number of persons out of suit land. After ex parte decree, the decree-holder-respondent filed a fresh suit for permanent injunction. The suit was dismissed vide judgment and decree dated 28.11.1995. Civil Revision No. 2550 of 2006 (O&M) -3- The appeal filed against the said judgment and decree was also dismissed, wherein it was held, that no relief of injunction could be granted against the co-owner. In view of the finding on the injunction suit, the decree passed in favour of the decree-holder became inexecutable, as in absence of partition the possession could not be taken under the decree. Even otherwise, it may be noticed that the suit, in which the decree was passed, was not maintainable in Civil Court as the land was shown as gair mumkin rasta and, therefore, the jurisdiction, if any, was with the Collector under Section 13 of the Punjab Village Common Lands (Regulation) Act and the jurisdiction of the Civil Court was specifically barred. It is also pertinent to mention here that some of the persons in possession were not even party to the suit and, therefore, are not judgment-debtors. Petitioner-Kashmira Lal is one of them. The objections filed by the petitioner were rejected by the learned Executing Court by applying the principle of lis pendens. Learned counsel for the petitioner has challenged the impugned order primarily on the ground that the petitioner was not a judgment-debtor being third party. The objections filed by the petitioner, therefore, were to be treated under Order 21 Rule 97 of the Code of Civil Procedure and, therefore, could not be rejected in a summary manner. It is also contended by the learned counsel for the petitioner, that the execution petition itself was not maintainable, as the decree sought to be executed was passed in the year 1988, but the decree-holder took no steps to execute the decree. The execution Civil Revision No. 2550 of 2006 (O&M) -4- application, therefore, was dismissed in the year 1993 for non-filing of process fee. It is, thus, pleaded that fresh execution application was not maintainable. It was also the contention of the learned counsel for the petitioner, that as the decree-holder could at best claim himself to be the co-owner, therefore, was not entitled to possession in absence of partition. The decree was said to be not executable being vague. Learned counsel appearing on behalf of the respondent, however, supported the order passed by the learned Executing Court on the plea, that the contentions raised by the learned counsel for the petitioner were rightly rejected, as it was not open to the learned Executing Court to go behind the decree. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. Civil Court did not have jurisdiction to adjudicate the claim regarding gair mumkin rasta and the jurisdiction of the Civil Court was specifically barred under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961. Therefore, the decree being nullity, it was open to the petitioner to challenge the said decree in execution application. This view of mine finds support from the judgment of the Hon'ble Supreme Court in Urban Improvement Trust, Jodhpur Vs. Gokul Narain and another, AIR 1996 Supreme Court 1819(1), wherein the Hon'ble Supreme Court was pleased to lay down as under: - “In Jaipur Development Authority v. Radhey Shyam (1994) 4 SCC 370 this Court had upheld the same objection raised under Section 47, C.P.C. when the decree awarding allotment of land in addition to compensation was held to be a nullity. That objection was allowed to be Civil Revision No. 2550 of 2006 (O&M) -5- raised in execution and was upheld. Hiralaj Moolchand Doshi v. Barotraman Lal Ranchhodas, (1993)2 SCC 458: (1993) AIR SCW 1286), relied on by the respondents is of no avail. In that case though nullity of a decree on the basis of a compromise for eviction of a tenant governed by the provision of the Rent Act was pressed for acceptance, this Court had held that the party cannot be permitted to lead fresh evidence as to the existence of statutory ground for eviction. On the facts in that case, it was held that the tenant impliedly admitted existence of statutory ground for eviction. As rgards the nullity or lack of inherent jurisdiction, this Court observed that the decree can be said to be a nullity if it is passed by a Court having no inherent jurisdiction. Erroneous decree cannot be said to be a nullity; nor can a decree based on an error be a nullity. Nullity has to be understood in the sense that it is ultra vires the power of the Court passing the decree and not merely avoidable decree. As stated earlier, if the decree strikes at the jurisdiction of the Court or the Court lacks jurisdiction is strikes at the very root of the authority to pass the order or the decree. As seen, the Amendment Act 68 of 1984 has no application to the lands acquired under the Act. It was amended only w.e.f. August 1, 1987 and it was made applicable only to the pending proceedings. It would, therefore, be clear that the order awarding additional benefits is clearly without jurisdiction and thereby it is a nullity. Its nullity can be assailed at any stage including at the execution or in a collateral proceedings since it strikes at the very jurisdiction and authority of the Court.” The petitioner-Kashmiri Lal was not even party to the suit nor he was successor-in-interest of the judgment-debtors and, therefore, the objections filed by the petitioner having been rejected summarily by the Civil Revision No. 2550 of 2006 (O&M) -6- learned Executing Court, decree could not be executed against third party. Decree is otherwise not executable, as the share of the decree- holder was undefined, therefore, the decree was not executable without ascertaining the rights of all the co-sharers. This view finds support from the judgment of the Hon'ble Supreme Court in Jagdish Dutt and another Vs. Dharam Pal and others, AIR 1999 Supreme Court 1694. For the reasons stated above, the impugned order cannot be sustained. This revision is allowed, the order passed by the learned Executing Court is set aside and the execution application filed by the respondents, who are decree-holder, is ordered to be dismissed but with no order as to costs. Revision allowed. (Vinod K. Sharma) Judge October 22, 2009 R.S.