Allowed an execution application under Order 21 Rule 32 CPC to be dismissed. This court held the impugned order perfectly legal as the petitioner failed to prove ownership in a merits suit and thus was not in possession.
Petitioner's petition under Article 226 dismissed; impugned order of Executive Court upheld.
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.
#1#
C.R.No.7457 of 2010(O&M)
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
C.R.No.7457 of 2010(O&M) Date of decision: 08.2.2011
Jagjit Singh
….Petitioner
Vs.
Mahabir and others
….Respondents
CORAM: HON’BLE MR. JUSTICE JASWANT SINGH
Present: Mr. Dhirinder Chopra, Advocate for the petitioner.
Jaswant Singh, J
C.M.No.1305-CII of 2011
Application is allowed.
Judgment and decree dated 2.11.2010 (P.7 and P.8) are taken
on record and exemption from filing certified copies of the same is granted subject to all just exceptions.
C.R.No.7457 of 2010
Plaintiff-petitioner has preferred the instant petition under Article 227 of the Constitution praying for setting aside the order dated 21.8.2010 (P.4) passed by the learned Civil Judge (Jr. Division), Abohar whereby his execution application under Order 21 Rule 32 CPC has been dismissed while allowing the objections of the defendants-respondents.
Facts of the case are that the plaintiff-petitioner filed a Civil Suit No.518-1 of 1.12.1987 for permanent injunction and the same was decreed ex parte vide judgment and decree dated 4.12.1989 passed by the learned Additional Civil Judge, Fazilka restraining the defendants-
C.R.No.7457 of 2010(O&M) #2#
respondents from dispossessing the plaintiff-petitioner from the suit land forcibly and without recourse of law. No appeal was preferred by the defendants-respondents. However, an application under Order IX Rule 13 CPC was filed for setting aside the judgment and decree referred above but the same was dismissed. Thereafter, it is alleged that the defendantsrespondents took the possession of land in dispute illegally from the plaintiff-petitioner, therefore, application dated 2.4.2001 (P.1) under Order 21 Rule 32 CPC was filed by the plaintiff-petitioner. Upon notice, the defendants-respondents filed objections (P.2) in response whereof the plaintiff-petitioner filed his reply dated 4.6.2004 (P.3). After hearing both the sides, learned Executing Court dismissed the execution application and sustained the objections filed by the defendants-respondents vide its impugned order, hence the present petition.
Heard learned counsel for the petitioner and perused the paper
book.
Learned counsel for the plaintiff-petitioner argues that the learned Executing Court has committed a gross error of law while dismissing the execution application merely by relying upon the order dated 26.7.1996 passed by the learned Assistant Collector, IInd Grade, Abohar for correction of khasra girdawari against the plaintiff-petitioner. It is further argued that the learned Executing Court was bound to execute the judgment and decree dated 4.12.1989 and ought to have allowed the application for execution as the law is well settled that the Executing Court cannot go behind the decree. It is further argued that the learned Executing Court has wrongly come to the conclusion that the plaintiff-petitioner is not in possession of the land in dispute. Learned counsel in support of his case
C.R.No.7457 of 2010(O&M) #3#
relies on certain judgments but this Court is referring the latest and relevant
judgment on the point in issue reported as Kapoor Singh v. Om Parkash 2009 (4) Civil Court Cases 586 (P&H).
There is no dispute that ex parte decree dated 4.12.1989 was passed in favour of the plaintiff-petitioner and against the defendantsrespondents. Undisputedly, an application for correction of khasra girdawari was made by the defendants-respondents in the court of Assistant Collector, IInd Grade, Abohar, who visited the spot on 11.6.1996 and came to the conclusion vide its order dated 26.7.1996 that the land in dispute is in possession of the plaintiff-petitioner and it is the defendants-respondents, who are in possession of the same and in this regard para Nos.11,12 & 13 of the impugned order discussing the order dated 26.7.1996, which has become
final, are reproduced below:
“11. xx xx Certified copy of order dated 26.7.1996 passed by the court of Sh. Jait Kumar, Asstt. Collector Grade IInd, Abohar on the application for correction of khasra girdawari filed by the Jds Mahavir and Santi against decree holder Jagjit Singh has been produced on record and in the said order, it has been held that disputed property was seen by Asstt. Collector Grade IInd, Abohar on 11.6.1996 in presence of Mahavir, Santi i.e applicants, Rajinder Kumar Son of Pirthi Raj, Khsni Ram son of Harmal, Sukhdev Singh, Harijan Numberdar, Ram Narain, member panchayat, Raipura, Krishan Ram son of Lal, Chander Bhan son of Hanuman, Inderjit son of Hari Ram, Kundna Ram son Jag Ram, Ram Kumar son of Het Ram and statements of the persons present were also recorded and all the persons stated that disputed property is being 16/17 years and on the spot, they are also in possession of the same and respondent Jagjit never cultivated the said land.
#4#
C.R.No.7457 of 2010(O&M)
by the respondent and Assistant Collector Grade IInd, Abohar came to the conclusion that possession of the applicants is proved over the disputed property and ordered to correct Khasra Girdawari and it was further held by the Asstt. Collector Grade II, Abohar that on the spot, possession of respondent i.e Jagjit Singh has not been proved and possession on the spot of disputed property has been proved of the applicants i.e Mahavir and Santi. 13. No document has been produced on record by the decree holder which could show that the decree holder has filed any appeal or revision against the order dated 26.7.1996 passed Sh. Jait Kumar, Assistant Collector Grade II, Abohar correcting Khasra girdawari in favour of the Jds holding their settled possession over the disputed property.”
It is necessary to mention here that the plaintiff-petitioner had
also filed a civil suit No.90-1 dated 31.3.2001 for possession of the land in dispute against the defendants-respondents but the same was dismissed by the learned Civil Judge (Jr. Division), Abohar vide judgment and decree dated 2.11.2010 (P.7 and P.8) by recording a finding that the plaintiffpetitioner has failed to prove that he has become the owner of the suit property and paragraph 18 of the judgment dated 2.11.2010 in this regard is reproduced hereunder:
“The plaintiff has sought possession of the suit property claiming to be owner of the same but as discussed above no title deed or other document vide which the plaintiff became owner of the suit property has been produced on record, hence, I do not find any force in the arguments raised by learned counsel for the plaintiff and all these issues are decided against the plaintiff and in favour of the defendants.”
Keeping in view the findings recorded by the learned civil court
in its judgment dated 2.11.2010 and taking into account the order dated 26.7.1996 passed by the learned Assistant Collector, IInd Grade, Abohar, it is clearly established that the plaintiff-petitioner is neither owner nor in
C.R.No.7457 of 2010(O&M) #5#
possession of the land in dispute. From the perusal of application (P.1), it is amply clear that there is no mention as to when the Jds-respondents dispossessed the decree holder-petitioner from the suit property and it is only vaguely alleged that he has been forcibly ousted from the disputed property and got the khasra girdawari corrected in their names. The proposition of law laid down by this Court in Kapoor Singh's case (supra) is not disputed but the same is not helpful to the petitioner as in the present case, it is the plaintiff-petitioner, who at his own had filed a separate suit for possession and after hearing both the sides, the same has been dismissed on merits by learned Civil Judge (Jr. Division), Abohar by recording a categoric finding that the DH-petitioner has failed to prove the ownership of the suit property and that judgment is certainly binding upon both the parties until and unless the same is set aside by a court of competent jurisdiction.
The learned Executing Court, in my opinion has rightly dismissed the application under Order 21 Rule 32 CPC filed by the plaintiffpetitioner, who has miserably failed to convince this Court to arrive at a different conclusion. Consequently, it is held that the impugned order dated 21.8.2010 passed by the Executing Court is perfectly legal and justified and does not warrant any interference under Article 227 of the Constitution by this Court.
Dismissed.
February 08, 2011 manoj
( JASWANT SINGH ) JUDGE
2 issues framed by the court
Whether this Court should interfere under Article 226 to set aside the Executing Court's order dismissing an execution application for possession of land.
Whether the Executing Court can refuse to execute a decree where the executes failed to prove title and ownership in a subsequent merits trial.
Colour shows how this judgement treated each authority
Kapoor SinghReferred¶26
Kapoor Singh v. Om Parkash 2009 (4) Civil Court Cases 586 (P&H)
2 provisions across 2 enactments
Jagjit Singh
Mahabir
Jaswant Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
