The High Court dismissed a civil revision petition challenging an executing court order. The executing court held a decree holder was entitled only to symbolic possession while admitting tenants' rights were established based on an invalid sale deed. The revision was deemed meritless.
Revision petition dismissed in limine.
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.
Civil Revision No. 1972 of 2011
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 1972 of 2011 Date of decision : January 11, 2012
Mukesh Kumar
....Petitioner
versus
Naresh Kumar and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. BS Jaswal, Advocate, for the petitioner
L.N. Mittal, J. (Oral)
Decree holder Mukesh Kumar has filed this revision petition under Article 227 of the Constitution of India impugning order dated 7.9.2010, Annexure P/5 passed by executing court i.e. learned Civil Judge (Senior Division), Gurdaspur thereby accepting objection petition filed by respondents no. 2 and 3 and holding that petitioner-decree holder is entitled to only symbolic possession and not actual possession.
Facts in this case are not very much in dispute. Decree holder filed suit against defendant no. 1 Naresh Kumar and defendant no. 2 Gurcharan Singh Bedi - father of respondent nos. 2 and 3, for specific performance of agreement to sell dated 12.2.2000 regarding the suit property. Defendant no. 2 Gurcharan Singh Bedi had purchased the suit property from defendant no. 1 Naresh Kumar vide sale deed dated 31.3.2000 i.e. subsequent to the agreement in favour of the petitioner. The
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said sale deed was also challenged by the petitioner in the suit. Defendants were proceeded ex parte in the trial court. Trial court decreed the suit for alternative relief of recovery of money. However, first appeal preferred by the petitioner was allowed and suit was decreed for specific performance of the agreement to sell and sale deed dated 31.3.2000 in favour of defendant no. 2 was held to be not binding on the petitioner.
Petitioner filed execution petition for execution of the decree. Respondents no. 2 and 3 herein filed objections in the said execution petition alleging that they are tenants in one shop out of the suit property since 14.7.1994, in another part of the suit property since 12.9.1998 and in remaining part of the suit property since 13.11.1998 i.e. since before the impugned agreement in favour of the petitioner. It was, thus, alleged by the objectors that they cannot be dispossessed in execution of the decree.
The petitioner decree holder in reply to the objections alleged that the tenancy had been surrendered after defendant no. 2 purchased the suit property. Various other pleas were also raised.
Learned executing court vide impugned order Annexure P/5 upheld the plea of tenancy raised by the objectors – respondents no. 2 and 3 and held that decree holder is entitled to symbolic possession only and not to actual possession. Feeling aggrieved, the petitioner has filed the instant revision petition.
I have heard learned counsel for the petitioner and perused the
case file.
Counsel for the petitioner vehemently contended that respondents no. 2 and 3 – objectors in their regular second appeal arising
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out of suit for specific performance pleaded themselves to be owners in possession of the suit property and therefore, they cannot take plea of tenancy. It was also argued that the rent notes relied upon by the executing court were not proved and therefore, cannot be taken into consideration.
I have carefully considered the aforesaid contentions but the same cannot be accepted being meritless. Respondents no. 2 and 3 – objectors filed regular second appeal as legal representatives of original defendant no. 2 since deceased. There was sale deed in favour of original defendant no. 2 which has been held to be invalid and not binding on the petitioner. Pursuant to the said sale deed, defendant no. 2 had become owner of the suit property and on his death, respondents no. 2 and 3 would have become owners of the suit property. However, sale deed in favour of defendant no. 2 has been held to be invalid. Consequently, neither defendant no. 2 nor his legal heirs respondents no. 2 and 3 became owners of the suit property. This is stand of the petitioner himself. He cannot be allowed to approbate and reprobate. On the one hand, the petitioner himself alleged that the sale deed in favour of the defendant no. 2 was invalid and on the other hand, petitioner on the basis of the same sale deed wants to defeat the tenancy rights of respondents no. 2 and 3. This cannot be permitted. It is all the more so because sale sale deed has been held to be invalid and not binding on the petitioner on the basis of his own version.
Respondents no. 2 and 3 claimed their independent tenancy
rights in the suit property and not as legal heirs of original defendant no. 2. Even otherwise, when sale in favour of defendant no. 2 was held to be
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invalid, rights of respondents no. 2 and 3 as tenants automatically revived. Consequently, petitioner in execution of the decree is not entitled to take actual physical possession of the suit property from respondents no. 2 and 3 and has been rightly held by the executing court to be entitled to symbolic possession only.
As regards proof of rent notes, the petitioner himself alleged that respondents no. 2 and 3 had surrendered their tenancy. This plea means that the petitioner himself admitted that respondents no. 2 and 3 were tenants in the suit property. In view of this admission, no other proof of their tenancy was required.
For the reasons aforesaid, it is manifest that impugned order of the executing court does not suffer from any perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed in limine.
January 11, 2012 'dalbir'
3 issues framed by the court
Whether the High Court should interfere in a civil revision petition challenging an executing court order granting symbolic possession to a decree holder while tenants claim rights based on an invalid
Whether the revision petition is meritless as it seeks to defeat the tenancy rights of respondents which the decree holder himself relies upon.
Whether the executing court's order holding the decree holder to symbolic possession suffers from any perversity or jurisdictional error.
1 provisions across 1 enactments
Mukesh Kumar
Naresh Kumar
Bedi and others
L.N. Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
