KHAZAN SINGH (D) BY LRS. v. GURBHAJAN SINGH AND ORS

Citation: [2007] 3 S.C.R. 120

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

KHAZAN SINGH (D) BY LRS. v. GURBHAJAN SINGH AND ORS.pdf

Judgment text

KHAZAN SINGH (D) BY LRS. '"' v. GURBHAJAN SINGH AND ORS. FEBRUARY 23, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ) Execution of decree for possession-Possession of agricultural land when sought without expressly mentioning existence of some kothas, aft. er long litigation and by first taking actual possession of small portion (lO biswas) and then taking rest of 2 bighas 7 biswas, decree holder could not belatedly claim that kothas were also included in decree for possession. Code of Civil Procedure, 1908-ss. /00, 115-Second appeal-Heid, lies on question of law-Revisional Jurisdiction is also limited. One 'S' filed a suit in respect of 2 bighas 17 biswas. The trial Co111rt passed decree for recovery of possession in 1953. Tiie actual delivery taken was of I0 biswas only and only symbolic possession of 2 bighas 7 biswas was ~ taken as i'. was in possession of Judgment Debtors (JDs). ...

The decree holder-respondent (DH) fi"d a fresh suit for possession of 2 bighas and 7 biswas which was dismissed as not maintainable by the District Judge on 16. 1. 1960 on the ground that an executable decree was passed in 1953 and hence precluded a fresh suit for the possession of properties. The DH in execution of the decree prayed for delivery of possession on 2S. l. l! l'63 of the said lands. Delivery was &iven pursuant to warrants of possession. In the site plan, 2 portions of lands were delineated shown as ABCD and EFGH. Tile DH lllld also transferred portions of lands to some vendta. There were some kothas and then dispute arose whether these were in tthe portions of DH. Executing Court held that delineation of kothas WH aot: In EFGH in the plan.. The delineation was done in the presence of parties with their consent·&lld they cannot question the same now.

They fdtd revisiion against th1is, which was allowed by the High Court , In appeal to this Court, ihe appellant contended that DHs never sued for ' possession of kothas and never asked the Executia& Court to deliver tbe KHAZAN SINGH (D) BY LRS. v. GURBHAJAN SINGH 121 possession of said kothas and were not entitled to seek their possession ;; , 2 Bighas 7 Biswas under the decree dated 14th January, 1953 and. 10 Biswas under the decree dated 16th January, 1960. I have already dealt with the land measuring 10 Biswas in Execution Second Appeal No. 60 of 1964. Possession of this land has been taken by the decree holder. It is not clear whether the possession of land measuring 2 Bighas 7 Biswas subject-matter of the decree dated the 14th January, 1953 has been taken possession of or not.

If there is any Kotha in the total land of which the decree holder is entitled, namely, 2 Bighas 17 Biswas, the decree holder will be entitled to that; but decree holder will not be entitled to any Kotha outside this land. " 23. The question was not as to whether the principles of res judicata would be applicable but the question which was required to be posed and answered was as to whether the kothas marked 'EFGH' fonned part of the decretal land or not. It, having regard to the orders passed in the earlier proceedings, cannot be said that the Executing Court acted illegally or without jurisdiction in arriving at the conclusion, it did. '-' . ' 24. The finding of the Executing Court essentially was a finding of fact. The High Court has not assigned sufficient or cogent reasons to conclude that the finding of the executing court in that behalf was factually incorrect. Revisional jurisdiction as is well-known is very limited.

The High Court, in our opinion, in the facts and circumstances of the case, exceeded its jurisdiction in passing the impugned judgment. 25. The High Court referred to an order dated 13. 10. 1965 but the effect thereof, as noticed hereinbefore, has not been considered in its true perspective. 26. We may now deal with the application for impleadment as also application for substitution filed by the applicant and the appellant respectively. 27. Gurbachan Singh, Respondent No. 4 herein died on 19. 11. 1999. In terms of the Punjab and Haryana High Court Amendment to Order 22, Rule 3 of the Code of Civil Procedure, the appeal shall not abate. A statement was made before the Registrar on behalf of the appellant that the name of Respondent No. 4 be deleted. An order was passed to that effect on 19. 09. 2006. An application for impleadment has been filed by the legal representatives of Gurbachan Singh, Respondent No. 4.

An affidavit has also been filed for ' revocation of the said order dated 19. 09. 2006. The relationship between the applicants and the deceased - Respondent No. 4 is seriously denied and disputed. The Executing Court had also in its order dated 5. 06. 2006 concluded: "The best course to be adopted by the L. Rs of Decree-Holder Gurbachan Singh, Gurmukh Singh applicant and the JD/ Objector is to raise the alleged objection by seeking declaration from the court by filing a separate suit or to obtain the succession certificate. " 28. This Court at this stage does not intend to determine the said question particularly in view of the statement of the respondents and in particular for the reason that it is not necessary for the purpose of disposal of this appeal. These applications for impleadment as also for substitution, therefore, are rejected. 29. We, for the reasons stated hereinbefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly.

The appeal is allowed. No costs. D. G. Appeal allowed.