Daljit Singh & Ors. v. Sher Singh & Ors.

reference, vide order dated 31.03.2009. The order was affirmed by the learned Appellate Court vide the order under challenge. It is apparent from a conjunctive perusal of the judgment rendered by the learned Trial Court and also the learned Appellate Court that the petitioners herein obtained the possession of the land under reference in execution of decree dated 28.08.1970 which was, later on, adjudged to be a nullity. The alternative plea raised by the petitioners herein that they are in possession of the land on the basis of the purchase of mortgagee rights from mortgagee Dhani Ram etc. was also found to be Civil Revision No.3469 of 2009 -2- without substance and the finding of fact recorded was that the appellants indeed had purchased it under the decree dated 28.08.1970 only, which (decree dated 28.08.1970) had been declared to be a nullity. It is further apparent that the controversy with regard to the entitlement of the respondents had been adjudicated upon right up to the Apex Court and the finding was in favour of the respondents herein. The following facts noticed by the learned Appellate Court are extracted hereunder for facility of reference: - “12. The factual scenario of the controversy regarding the suit land between the parties is not an issue. Admittedly, Laxman, predecessor-in-interest of the appellants won a case of possession by way of pre-emption of the suit land but failed to honour the decree and did not pay the full decreetal amount that led to the filing of an application under section 47/144 CPC for restoration fo the possession of the suit land by Sher Singh etc.; the respondents. Laxman the predecessor-in-interest respondents resisted application and took plea that he had purchased the suit land by making payment of mortgagee amount and application as such was not maintainable. Learned lower Court framed the issues and on appraisal of facts, vide order dated 27.07.1972 allowed the application in favour of Sher Singh etc. and ordered for the re-delivery of the possession of the suit land in their favour.

13. On reversal of the findings of learned lower Court in first regular appeal; Sher Singh etc. preferred RSA before the Hon'ble High Court. The averments of the parties were again Civil Revision No.3469 of 2009 -3- re-appreciated and the Hon'ble High Court negated the plea of Laxman, the predecessor-in-interest of appellants and allowed the application of Sher Singh etc. and passed the order for restoration of possession of the suit land in their favour. The findings of the Hon'ble High Court dated

10.12.1979 are reproduced as under for better appreciation of facts: - “In view of this authoritative pronouncement of their Lordships of the Supreme Court, the appellants are certainly entitled to the restoration of the possession of the suit land of which they have been deprived in execution of a decree, which was in fact non-existed and the respondent was not entitled to the possession in execution thereof. It may not be out of place to observe that if on the facts admitted a person is entitled to a relief he should not be deprived of the same on some technical grounds. That will unnecessary lead to multiplicity of proceedings. Not only that, a wrong doer should not be allowed to take unnecessary technical objections and thus allow him to continue with the wrong done by him. Such a conduct, if allowed to prevail upon, is likely to shake the confidence of the people in our judicial system. The Courts exist for the administration of justice and are supposed to jealously safeguard the interest of those who suffer at the hands of wrong doers. Civil Revision No.3469 of 2009 -4- For the reasons recorded above, this appeal succeeds, the order of the lower Appellate court is set aside and the application of the appellants for restoration of the possession is allowed with costs.”

14. LPA filed by Laxman was withdrawn as evident from the order of Hon'ble Supreme Court of India dated 17.04.1980.

15. The evidence on record further shows that Sher Singh etc. on 2.12.83 filed an application for restoration of possession to them, that was allowed and appeal preferred by Laxman etc. was dismissed vide order dated 12.11.1986 and RSA and SLP so preferred by Laxman were also dismissed against him.

16. The perusal of the judgment show that the second round of litigation also failed to come to the rescue of Laxman, and Sher Singh etc. were granted the right of recovery/re-delivery of possession of the suit land. The controversy regarding the entitlement of the respondents for restoration of possession of the suit land has already been concluded and decided between the parties up to the Hon'ble Supreme Court of India. Now the parties are bound by the judgments. By way of the present application, the respondents are seeking the execution of the judgments and decrees so passed in their favour giving them the right of recovery of possession of the suit land.

17. The contention of learned counsel for the appellant that their possession cannot be disturbed on the basis of their being co-sharer in the suit land, is not made out from their Civil Revision No.3469 of 2009 -5- own stand, as admittedly, the appellants took the possession of the suit land in pursuance of the execution of the decree dated 28.08.1970 passed by the Court of Shri K.C.Danga, the then learned Sub Judge III Class, which was later on adjudicated upon as nullity. The other plea that they are in possession of the suit land having purchased the mortgagee rights from mortgages Dhani Ram etc. is also without substance as the appellants purchased the same under the aforesaid decree that was admittedly declared as nonest. In this regard, reference can be made to the findings rendered by Shri S.R.Bansal, the then learned Additional District Judge, Ambala, while dealing with the appeal preferred by Laxman against the order dated 02.12.1983 as passed by Shri A.K.Raghav, the then learned SJIIC, Jagadhri, in an application bearing No.10/2006 of 16.07.1980 under Section 144/151 CPC, in which restoration of the possession of suit land was ordered in favour of the respondents Sher Singh etc. and the objections raised by Laxman were dismissed in para no.6 of the judgment, it has been observed that Laxman Singh in execution application No.42/10 decided on

30.10.1971 in column No.7 claimed the delivery of possession in respect of 74K-0M of land comprised in khasra No.3/6, 14, 15, 4/10, 11, 17,18, 19, 20 and the executing court ordered for the warrant of possession in favour of Laxman. In the said para, it has also been observed tht delivery of possession (aforesaid land) in execution of the decree has been expressly admitted by Laxman Singh vide Civil Revision No.3469 of 2009 -6- para 1(ii) of the reply dated 04.01.1980 to the application dated 24.04.1980 moved by Sheri Singh etc. It has been further observed that when the present appellant had got possession in execution of the decree which has been held to be nonest, he should be fair enough not to delay or obstruct restitution of the same to the present respondents. He cannot be allowed to reap benefits which he has gained in the form of possession of land, due to error of the court in issuance of warrant of possession, for execution of decree which now finally stands adjudicated as legally nonest. Admittedly, said findings have been upheld and have become final. So, any rights accrued to the appellants under the said illegal decree are of no consequence. By way of present objection, the applicants are re-agitating the same pleas that have been answered against them upto Hon'ble Supreme Court of India. The authorities as relied upon by learned counsel for the appellants, therefore, are of no help to them being distinguishable from the facts of the present case.” Faced with the predicament aforementioned, the learned counsel appearing on behalf of the petitioners herein argues that the respondents can, at the most, be held entitled to the delivery of symbolic possession in view of the fact that the entire holding is joint and possession of specific area cannot be delivered in the absence of partition. Reliance, in support of the advocated view, is placed upon Kashmir Singh Vs. TANA and others, 2001(1) PLJ 88. This aspect has already been dealt with by the learned Appellate Court in the course of para 17 of the judgment, which stands Civil Revision No.3469 of 2009 -7- extracted in an earlier part of this judgment. Even in common parlance, once the entitlement of the respondents to restitution had been validly upheld, they would be entitled to that very tenor of possession by which the petitioners herein had obtained the possession of that land. The learned counsel for the petitioners herein is not in a position to deny that the petitioners herein had obtained actual physical possession of the land in suit. In the light of foregoing discussion, the concurrent chord of finding recorded by the learned Trial Court and the learned Appelalte Court directing the restitution, does not call for any interference. The petition shall stand dismissed accordingly. February 04, 2010 vinod* (S.D.ANAND) JUDGE