Ganji Chandraiah vs F.E. Dinshaw (P) Ltd., Bombay

These three civil revision petitions arise out of two applications filed by the judgment debtors for appointment of a Commissioner to identify the property possession of which is sought by the decree holder in execution of the decree passed in OS No.143 of 1979 on the file of V Additional Judge, City Civil Court, Hyderabad.

The respondent herein filed the said suit OS No.143 of 1979 against the petitioners herein for recovery of possession of the plaint schedule property comprising an extent of 1192 Sq.yds., forming part of 1762 Sq.yds., of land situated in Jafferbagh, Khairatabad, Hyderabad within the specified boundaries mentioned in the plaint schedule. The said suit was filed on the allegations that the said extent of 1762 sq.yds. was allotted to the respondents by virtue of the orders passed by this Court in CS No. 14 of 1958, that in pursuance of the said orders, the Receiver-cum-Commissioner delivered vacant possession of the said property to the respondent on 12-4-1973 and that subsequently the petitioners herein encroached upon 1192 sq.yds., out of the said extent of 1762 sq.yds., claiming under three sale deeds dated 14-8-1975, 22-12-1976 and 7-1-1977 respectively in their favour by one Jahanara Begum who has no manner of right, title or interest in the said property. The petitioners herein resisted the said suit claiming title to the suit property by virtue of the sale deeds executed in their favour by Jahanara Begum and also pleading that they perfected title by adverse possession. Negativing their contentions, the trial Court decreed the suit by judgment and Decree dated 29-9-1984 and the same was confirmed by a learned single Judge of this Court in CCCA Nos.124 and 125 of 1984 and Transfer CCCANo.103 of 1985 dated 4-3-1994 which was again affirmed by a Division Bench of this Court in LPA Nos.111 and 112 of 1994, dated 8-7-1994. Thus the decree in OS No.143 of 1979 has become final. In execution of the said decree, the respondent filed EP No.5 of 1996 for delivery of the suit property to him. In the said execution petition, the judgment debtors filed the instant applications seeking the appointment of an Advocate Commissioner/Surveyor to identify and locate the suit schedule property on the plea that the property to which the respondent is held entitled as per the judgment in LPA Nos.111 and 112 of 1994 is not the same property which was claimed by the respondent in the suit. It is pointed-out by the petitioner that as per the case set-put in the plaint in OS No.143 of 1979, the suit property was allotted to the plaintiff by allotment order dated 29-1-1971 passed in Application No.73 of 1970 in Application No.113 of 1972 in CS No.14 of 1958 and the same was delivered to the plaintiff on 12-4-1973. But according to the judgment in LPA Nos.111 and 112 of 1994, the property allotted to the plaintiff is from Group-I or VI which was approved by order dated 21-12-1973 in Application No.105 of 1973 (Ex.A8). It is also contended that if the allotment itself was by order dated 21-12-1973, the property could not have been delivered to the plaintiff on 12-4-1973 as stated in the plaint. It is further pointed-out that the boundaries mentioned in the plaint schedule do not tally with the boundaries as per the Sketch Plan !B'' annexed to the order of the Court which is marked as Ex.A8.

The lower Court, however, dismissed the applications by the impugned order dated 15-12-1997 on the ground that the self same objection was raised and negatived in LPA Nos.111 and 112 of 1994 and as such it is not open to the petitioners to raise the same objection once again in the Execution Proceedings.

Sri J.V. Suryanarayana, learned senior Counsel appearing for the petitioners sought to assail the order by contending that the lower Court committed gross error in its view and that the same objection was negatived by the High Court in LPA Nos.111 and 112 of 1994. He also contended that when there is a serious dispute with regard to the identity of the property which is sought to be delivered in execution of the decree, the Executing Court is bound to enquire into the same as it is a question relating to the execution of the decree, if necessary by taking evidence, and a separate suit is barred by virtue of Section 47 CPC. In support of his contentions, the learned Counsel cited a number of judgments.

In the decision reported in Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, , the Supreme Court while referring to the well known principle that the executing Court cannot go behind the decree, however, pointed-out that it can find-out the true effect of the decree and for construing the decree, it can take into consideration the pleadings as well as the proceedings leading upto the decree. In AIR 1948 180 (Privy Council) , it was held that where the village for the possession of which the decree was granted was inextricably mixed up with the other area and the Decree Holder was unable to identify the village, order for possession cannot be granted in execution. In Marudanayagam Pillai Vs. P.K. Venkataswami Naidu and Others, , it was held that identity of the property is a question relating to execution and it is for the executing Court to examine the question as to the identity of the property that is the subject of the decree which it is executing. In Madhukar Timbak Gore Vs. Vasant Ramkrishna Kolhatkar, , it was held that the executing Court can enquire into the identity of the property as a separate suit is barred and for that purpose evidence also may be taken.

There can be no dispute about the legal propositions which are laid-down in the above decisions, but the question is how far they are helpful to the petitioners in the instant case. It may be pointed-out that in the suit, the defendants did not question the identity of the suit property. On the contrary they asserted title to the suit property by virtue of the sale deeds obtained by them from Jahanara Begum and also by adverse possession. The Court negatived the said pleas raised by the defendants and upheld the title of the respondent-plaintiff for the suit property and granted a decree in his favour for possession and the same was confirmed on appeal and also in the LPAs. For the first time, the petitioners raised the question of the identity of the suit property in the LPA Nos.111 and 112 of 1994 by contending that the suit property is not the same as the property purchased by them from Jahanara Begum. The Division Bench of this Court went into the said question and ultimately found that the plaint schedule property is part of the property delivered to the plaintiff pursuant to the orders passed by the High Court in CS No.14 of 1958 and negatived the contention of the defendants in the following words:

"We are not impressed by the argument that the identity of the property is not established. The property, is broadly described as Jaffarbagh and the evidence of PW2 (Receiver) clearly shows that this is the property which was taken possession by him and delivered to the plaintiff. We arc not inclined to accept the submissions of the learned Counsel for the appellants in that regard."

In view of this categorical finding recorded by the Division Bench, it is open to the petitioners to raise the self same contention once again in the execution proceedings. I do not, therefore, find any error in the order of the lower Court warranting interference. The CRPs. are thus without any merit and they are accordingly dismissed. There will be no order as to costs.