Bishan Singh vs Hukam Chand and Others

M.S. Liberhan, J.—The petitioner has challenged the order of the Additional District Judge, declining the prayer for ad-interim injunction during the pendency of the suit. The undisputed facts stated at the bar are that Sunder Lai was the owner of the land in dispute who sold it to Sukhchain and others. The respondent sought decree for possession by pre-emption which was granted finally by this Court on 8.8.1986. It is stated in the course of argument that Bishan Singh filed a suit on 6.10.1982 against his sons for declaration that he is the real owner and his sons are only benamidars. This suit was decreed on the same date as the sons admitted the claim.

When the execution of the order dated 8.8.1988 was sought, Bishan Singh filed the present suit claiming himself to be a tenant on the land in dispute as well as the real owner of the land in suit. Pleas are destructive of each other. A suit for declaration was filed that he is the real owner and the decree cannot be executed with a consequential relief of injunction restraining the respondent from executing the decree in dispute.

Both the courts below declined the ad-interim injunction. Learned Counsel for the petitioner contends that the law with respect to benami transactions is not applicable to the facts in this case, inasmuch as the decree was passed much earlier to the Act coming into force. He further contends that the judgment reported as Mithilesh Kumari and Anr. v. Prem Behari Khare 1989(1) S.V.L.R. (c) 252, decided on 14.2.1989 is not applicable to the facts and circumstances of this case. It is contended that since the petitioner is admittedly in possession, actual delivery of possession cannot be effected at this stage.

Learned Counsel for the respondent refuted the arguments and contends that there is no error of jurisdiction exercised by the courts below in declining the ad-interim Injunction. Apart from this there are no sufficient grounds to Interfere in the discretion exercised by the courts below.

In my considered view the decree was passed as for back as 1986 by this Court, execution of which is being sought. Before considering the prayer for ad-interim injunction, it is an accepted norm that three factors are taken into consideration that is prima facie case, balance of convenience of parties and irreparable loss to parties. The Courts below prima facie found that the plaintiff had no case in view of the amended provisions of the The Benami Transactions (Prohibition) Act, 1988, without expressing my opinion which may prejudice the trial, I am prima facie of the view that the petitioner is estopped from claiming any title under the decree. No decree can be passed either of declaration or for any other relief in favour of the real owner after coming into force of the Benami Transactions (Prohibition) Act, 1988. Apart from this, it is the lawful decree which is being executed. There will be no irreparable loss when a decree of a competent court is being executed. As observed in Pishora Singh v. Shrimati Lajo Bai (1975) 1977 PLR 30, Lawful exercise of right vesting in a person cannot be said to be an injury. Otherwise on equity also, Bishan Singh is none else than the father of the vendee who has fought the litigation till the end and lost. If the temporary injunction is granted, the respondents shall be deprived of their right to execute the decree passed in their favour. Courts should be slow granting injunction restraining the execution of lawful decrees affirmed by superior courts. There is no balance of convenience in favour of the petitioner.

At this stage, the Learned Counsel, Mr. Chaudhary states that since he is admittedly in possession of the, land in dispute, at the most, only symbolic possession can be given. This contention has been noted since it was raised at the bar. I find no force in the same and reject it.

In Mst. Mewa v. Amar Singh (1988) 24 PLR 249, it was held that delivery of symbolic possession means delivery of actual possession. It was observed that:

The delivery of symbolic possession in execution of a decree to the decree-holder or to the auction-purchaser as against a judgment-debtor is equivalent to the delivery of actual possession, such a delivery, therefore, operates as dispossession of the judgment-debtor.

Once it is conceded that symbolic possession can be delivered under the decree. I find no reason to restrain the respondent from obtaining physical possession of the land in dispute.

In view of my above observation, 1 find no force in the revision petition and the same is dismissed.

No order is called for in Civil Miscellaneous as the Civil Revision itself has been disposed of.