The High Court of Himachal Pradesh dismissed a petition seeking execution of a decree for declaration of joint ownership with injunction. The Court held that since the decree-holder was not in possession while respondents were, the injunction decree could not be enforced; the proper remedy was a separate suit for partition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CMPMO No. 140/2021 Decided on : 01.12.2023
Nirmal Jeet Kaur …..Petitioner Versus Manju Mamik and ors. ….Respondents
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge .
Whether approved for reporting?1
| For the Petitioner: | Mr. Romesh Verma, Sr. Advocate with Mr. Sumit Sharma, Advocate. |
|---|---|
| For the Respondents: | Ms. Atul Jhingan, Advocate, for respondents No.1 to 3 |
| Mr. Rajnish K. Lal, Advocate, for respondent No.4. |
Justice Tarlok Singh Chauhan, Judge (oral)
It is not in dispute that the decree for declaration
declaring petitioner/decree holder to be joint owner in possession of the property in dispute was passed and upheld right up to the Hon’ble Supreme Court. However, it is also not in dispute that it had concurrently been found by the learned District Judge as well as this Court that as regards possession, it was the defendants/respondents No.1 to 3, who were in actual and physical possession of the property in question.
2 This is clearly evident from para 12 of the judgment
dated 16.9.2010 passed by the learned District Judge in Civil
1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
2
Appeal No. 7/2009, titled as Harjeet Kaur & ors. vs. Manju
Mamik & ors., which reads as under:-
“12. It appears from the pleadings of the parties that the plaintiffs and the defendants are well settled and educated people but the property has become the bone of contention between the parties and they are contesting the title of the property. It is also clear that at present possession of the suit property is with the defendants No. 1 to 3 and the plaintiffs as well as the defendant No.4 are not coming in its possession. The revenue entries have also been made in favour of the defendants No. 1 to 3 and no revenue entry has come in favour of the defendant No.4 or the plaintiffs.”
3 The aforesaid findings have been affirmed by this Court vide judgment dated 25.4.2013 rendered in RSA No. 460/2010, titled as Manju Mamik & ors. vs. Harjeet Kaur & ors., while answering substantial question of law No.XVI, relevant portion whereof reads as under:-
“Substantial question No. XVI:
Whether the suit was not maintainable as relief of possession has not been claimed in the suit and on the other hand, the possession of the appellants stands admitted in view of the law laid down by this Hon'ble Court and the Hon'ble Supreme Court in Sita Ram Vs. Hari Krishan, 2000 (1) CCC 704 (H.P), Ram Saran and another Vs. Smt. Ganga Devi, AIR 1972 SC 2685 and Vinay Krishna Vs. Keshav Chandra and another, AIR 1993 SC 957?
65. Though admittedly defendants No. 1 to 3 are coming in possession of the suit property through the original defendant, yet the fact remains that the possession of the
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original plaintiff was initially as a lessee under lease deed Ex. DW-5/B dated 07.04.1994 executed in his favour by the testatrix through her attorney DW-5, Shri Gagan Mohan Chhiber. As it has already been held that the testatrix had executed Will dated 16.04.1992 Ex. PW-2/B in favour of the plaintiffs, original defendant (succeeded by defendants No. 1 to 3) and defendant No. 4 Prithvijit Singh and Will dated 12.12.1994 Ex. DW-5/C allegedly executed by the testatrix is shrouded by grave suspicious circumstances, the status of the original defendant as lessee under lease deed Ex.DW-5/B dated 07.04.1994 stood automatically converted to that of a co-owner being one of the beneficiaries under Will dated 16.04.1992 Ex. PW-2/B executed by the testatrix, the plaintiffs and defendant No. 4 Prithvijit Singh being the other co-owners on the basis of the said Will. The settled legal position that possession of a co-owner is for and on behalf of all other co-owners, need not be reiterated. It being so, the suit filed by the plaintiffs for grant of a decree of declaration etc. to the effect that they alongwith defendant No.4 Prithvijit Singh are co- owners in possession of the suit property cannot be said to be not maintainable in the absence of a prayer for grant of relief for possession. The substantial question of law is decided accordingly.”
4 The decree, being one of declaration simpliciter along
with limited relief of injunction, could not have been executed in a manner, as sought by the decree holder i.e. petitioner herein, as admittedly she was not in possession of the property in question.
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5 It needs to be clarified that even though the suit of the petitioner/decree holder was decreed for injunction as aforesaid, but the same was limited to restraining the defendants/respondents No. 1 to 3 from alienating or creating any charge over the suit land or changing nature thereof, however as observed above, the decree of injunction could not have been enforced as sought for by the petitioner/decree holder as she was first required to have got her share determined and along with that she could have sought injunction directing the parties not to create encumbrance thereupon.
6 On the contrary, the petitioner tried to show that she was in physical possession of the property in question and was thus entitled to the injunction, which, to say the least, runs contrary to the judgment that has been passed in her favour as has been discussed hereinabove.
7 The only remedy, if any, available to the petitioner/decree holder was to have filed a suit for partition along with an application for injunction.
8 In such circumstances, the order passed by the learned trial court cannot be faulted with. Consequently, the present petition is dismissed. However, dismissal of this petition shall not come in the way of the petitioner/decree holder in
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case she chooses to avail of such remedy as available to her
under the law.
9 It is made clear that in case the petitioner avails of the alternate remedy of filing suit, then the learned trial court shall make all endeavours to decide the same within a period of two years. Pending application(s), if any, also stands disposed
of.
(Tarlok Singh Chauhan) Judge
01.12.2023 (pankaj/GM)
2 issues framed by the court
Whether the petition for execution of a decree for declaration of joint ownership can be maintained when the decree-holder is not in possession of the property?
What is the remedy available to a decree-holder of a declaration decree who is not in physical possession of the disputed property?
Nirmal Jeet Kaur
Manju Mamik
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
