Read Order: Yoginder Kumar Sud v. Thakur Rajiv Singh and Another

Monika Rahar

Chandigarh, April 19, 2022: Reiterating that a co-owner in exclusive possession of joint property or its portion can raise construction on the portion in his possession as long as it does not amount to ouster of the other co-owners and the construction would at best be subject to the outcome of the partition, the Punjab & Haryana High Court has opined that once the suit for permanent injunction of the petitioner stood decreed, the Executing Court can not render the said decree nugatory by holding that the petitioner ought to file a suit for partition. 

Additionally, the Bench of Justice Alka Sarin held that without any issues having been framed and evidence being led, the Executing Court can not accept any document merely produced by any party.

Brief facts relevant to the present lis were that the petitioner claiming to be the owner of the suit property (obtained on the basis of a 2000 sale deed) filed a suit for permanent injunction for restraining the first respondent herein from interfering in possession of the petitioner over the suit property. 

The said suit was decreed. Aggrieved, the first respondent filed an appeal which was dismissed, thus leading the first respondent to file a Regular Second Appeal before the High Court. In the meanwhile, one Balwant Singh Goraya through the first respondent acting as his attorney also filed a suit for specific performance/ declaration/ mandatory injunction and alternative relief of recovery averring that the defendants (therein) executed an agreement in 1999 agreeing to sell suit land to Balwant Singh for which sale consideration was paid. 

This suit was dismissed in 2000, inter-alia, on the ground that there was interpolation in the agreement to sell. The appeal by Balwant Singh Goraya was also dismissed in 2014. Thereafter, Balwant Singh Goraya filed a Regular Second Appeal before the High Court. 

The High Court vide a common judgment dismissed both the regular second appeals filed by the opposing parties. The parties also approached the Apex Court before which one SLP was dismissed while the other was dismissed as withdrawn.

It is pertinent to notice that after the passing of the judgment and decree in petitioner’s favour, he filed an application for providing police help for enforcement of the judgment and decree passed in his favour. This application was opposed by the first respondent on the ground that the petitioner was not in possession of any specific area at the spot and in view of the decree passed in his favour, at best, he could be considered as a co-sharer and his remedy in law would be to seek partition of the land. 

Vide the impugned order, the Executing Court dismissed the application while observing that neither Satinder Kaur nor Bhagat Singh, the vendors of the petitioner, were in possession of any specific area and the petitioner would at best be considered as a co-sharer having the remedy of filing a suit for partition of the land and further that the land as described in the plaint was not identifiable. 

Aggrieved, the petitioner filed an appeal which was dismissed, leading to the filing of the present revision petition. 

The case of the petitioner’s counsel was that the executing Court traversed beyond the decree while dismissing the application for providing police help and accepting the objection filed by the first respondent. He contended that the suit land was fully identifiable and was not part of any joint khata. It was further the contention that the Executing Court went beyond the decree inasmuch, as the petitioner, right upto the Supreme Court, was held to be owner in possession of the suit property and the injunction suit of the petitioner was decreed and now the petitioner is running from pillar to post to enjoy the fruits of the decree. 

It was also argued that the Executing Court passed the impugned order by making out a new case in favour of first respondent which was not even pleaded or proved in the suit whose decree was sought to be got executed. 

Per contra, the Counsel for the first respondent argued that it was within the jurisdiction of the Executing Court to decide the nature of the land held by the decree holder. It was further the contention that allowing the application for providing police help filed by the petitioner would lead to the petitioner staking claim over the adjoining land and asserting himself to be co-sharer of a major chunk. And, lastly it was contended that the only remedy with the petitioner is to seek partition of the land. 

At the very outset the Court remarked that the present case had a chequered history and the petitioner, having succeeded in his suit for injunction right up-to the Supreme Court, was “struggling to reap the fruits of the decree” in his favour. After perusing the finding recorded by the Executing Court while deciding the application for police help, the Court opined that the Executing Court found that the first respondent was a co-sharer in the suit property but also that the petitioner ought to file a suit for partition. The said findings, the Court held were perverse and illegal on the face of it.

The Court also noted, from the judgment and decree of the Trial Court that at no point, the first respondent raised the defence that he was a co-sharer in the suit land and that the Trial Court categorically held that the petitioner was in possession of the suit property, which finding was upheld by the Lower Appellate Court as also by the High Court. 

Thus, in view of the above, the Court was unable to accept the findings recorded by the Executing Court that the first respondent was a co-sharer in the suit land. Further, the Court held that once the suit for permanent injunction of the petitioner stood decreed the Executing Court could not render the said decree nugatory by holding that the petitioner ought to file a suit for partition. 

Additionally, showing agreement with the contention of the petitioner’s counsel, the Court opined that the impugned order passed by the Executing Court showed that it (the Executing Court) permitted the first respondent to set-up a case beyond that pleaded by him in the suit itself. 

“The Executing Court clearly traversed beyond the decree dated 24.08.2002 which it was called upon to execute and exceeded the jurisdiction vested in it”, adjudged Justice Sarin. 

Further, the Court also added that even if it was to be assumed and presumed that the land is un-partitioned, which was neither pleaded nor proved in the suit, even then the petitioner would have a right to enjoy the land in his possession to the extent of his share.

Also, it came to the notice of the Court that the Executing Court relied upon certain revenue documents to non-suit the petitioner. These documents, as noted by the Court were not part of any evidence and were merely produced by first respondent. Thus, the High Court held that without any issues having been framed and evidence being led, the Executing Court could not accept any document merely produced by any party. Therefore, while denying to accept the procedure adopted by the Executing Court, the High Court held that the reasoning given by the Executing Court while allowing the objections filed by first respondent was wholly unsustainable in law. 

Additionally, the Court observed that even if it was assumed (as held by the Executing Court) that the petitioner was a co-sharer, it is well settled that a co-owner in exclusive possession of joint property or its portion can raise construction on the portion in his possession as long as it does not amount to ouster of the other co-owners and that the construction, if any, would at best be subject to the outcome of the partition. 

However, in the present case, the Court observed that the petitioner cannot be termed to be a co-owner since the first respondent neither pleaded nor proved this in the suit and neither did he plead or prove his ownership over any part of the suit land. 

Next, on the facet of identification of the land, the Court was of the opinion that the description of the suit land given in the plaint and in the decree was sufficient for it being able to be identified. Hence, it was held that the execution of the decree of 2002 could not be avoided by contending that the suit land was not identifiable. 

In view of the discussion above, the Court found that the Executing Court, while passing impugned order, failed to exercise the jurisdiction which vested in it. The impugned order was thus held to be illegal and accordingly, the present revision petition was allowed.

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