Ghisa Ram vs Sukhi Ram and others

Ajit Singh Bains, J.—Ghisa Ram, judgment-debtor, has filed this second execution appeal against the order of the learned Senior Subordinate Judge, Narnual (with enhanced appellate powers), dated November 29, 1976.

The facts giving rise to this appeal are as under:�

Sukhi Ram, plaintiff-decree-holder, was an occupancy tenant along with Pat Ram, defendant-respondent, of land comprised in Khasra No. 126 situate in village Sahan. The judgment-debtor Ghisa Ram was an occupancy tenant of the land comprised in Khasra No. 191 in the same village. Both the decree-holder and the judgment-debtor exchanged these two Khasra numbers with each other somewhere in the year 1940. Subsequently after coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, the decree-holder and Pat Ram, defendant-respondent became owners of Khasra No. 191 which they took in exchange from Ghisa Ram, respondent (judgment-debtor). The present appellant (judgment-debtor) illegally took possession of the land comprised in Khasra No. 191 in connivance with the officials of the Consolidation Department. The decree-holder instituted a suit for possession of the land comprised in Khasra No. 191 on the ground that he was the owner of the said land. This suit was dismissed by the trial Court. On appeal, the lower appellate Court affirmed the findings of the trial Court and dismissed the appeal. The decree-holder then went up in second appeal before the High Court which was allowed and it was held that the. Revenue authorities while sanctioning the mutation had not taken into consideration the latest revenue entries which go to show that after the exchange of the property, the decree-holder and Pat Ram defendant No. 2 (respondent) had entered into possession of Khasra No. 191 and as such the mutation of ownership in respect of that Khasra number should have been attested in their favour. It was further held that the Courts below had misread the entries in the revenue record and the decree-holder, was entitled to possession of Khasra No. 191 as claimed by him in the suit.

The decree-holder took execution of the decree passed in his favour regarding Khasra No. 191.- Objections were raised by the judgment-debtor that the decree was in executable as Khasra No. 191 was not in existence. The parties contested on the following issues in the objection petition:�

Whether the decree is inexecutable as alleged ? OPD.

Whether the land described in the execution petition has been allotted in lieu of old Khasra No. 191 as alleged? OPDH.

Relief.

The trial Court held that the decree passed by the High Court in second appeal was inexecutable. No finding was given on issue No. 2 and on the basis of finding on issue No. 1, the objection petition was allowed and the execution application was dismissed. Dissatisfied by the order of the trial Court, the decree-holder filed first execution appeal which was allowed. Hence this second execution appeal by the judgment-debtor.

Mr. Gopi Chand, Learned Counsel for the appellant, contended that the decree is inexecutable as Khasra No. 191 is not in existence. He further contended that the decree passed is a conditional one. I do not find any merit in either of these contentions. The decree was passed for possession of Khasra No. 191 but in the execution application the particulars of new Khasra number, which was given after the Consolidation of Holdings proceedings, has been given. The argument of Mr. Gopi Chand is that rule 9(ii) of Chapter 1-C of Rules and orders of the Punjab High Court, Volume 1, is infringed as the plaintiff-decree-holder did not give the new Khasra number of the land in dispute in the plaint. This argument is without any merit. Rule 9(ii) of Chapter 1-C of the Rules and Orders of the Punjab High Court Volume I is in the follwing terms:�

Every such plaint shall be accompanied by a statement, in the prescribed form setting forth the particulars relating thereto recorded in the Settlement record and in the last Jamabandi. This statement shall be verified by a signature of the Patwari of the Circle in which, the land concerned is situate. Where by reason of partition, river action or other cause, the entires in the Settlement record in the last Jamabandi do not accord, a brief explanation of the reason should be given in the column of remarks. Where the suit is for a specific plot with definite boundaries, it shall also be accompanied by a map, drawn to scale, showing clearly the specific plot, claimed, or in relation to which the decree is to be made, and so such of the fields adjoining it, also drawn to scale, as may be sufficient to facilitate identification. The specific plot and adjoining fields shall be numbered in accordance with the statement and the map shall be certified as correct by the Patwari or other person who prepared it. Where, however, the suit is for the whole of one or more Khasra numbers as shown in the Settlement map or a share in such numbers, and not for a specific portion thereof no map will be required unless it is necessary for other reasons to show the boundaries of such Khasra numbers.

A plain reading of this rule shows that the plaint shall be accompanied by a statement, in the prescribed from setting forth particulars relating thereto recorded in the Settlement record and in the last Jamabandi, and that the statement shall be verified by a signature of the Patwari of the Circle in which the land concerned in situate. According to this rule, in order to identify the suit land the particulars recorded in the Settlement record and in the last Jamabandi are to be given and where the suit is for a specific plot with definite boundaries, it shall also be accompanied by a map showing the definite boundaries. The argument of the counsel is that since the last Jamabandi did not contain Khasra number 191, this decree is inexecutable. There is no force in this argument as the land is sufficiently described in the suit. It was Khasra number 191 which was exchanged and it was only after the Consolidation of Holdings proceedings that in lieu of this land some other land was allotted, particulars of which are given in the execution application. Hence I do not find any infringement of rule 9 (ii) of Chapter I-C of the Rules and Orders of the Punjab High Court, Volume I.

The Learned Counsel for the appellant also relied upon Order 7, Rule 3 of the Code of Civil Procedure, which is in the following terms:�

Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

A reading of this rule shows that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries in a record of settlement or survey, the plaint shall specify such boundaries or numbers. As I have observed earlier, no such objection was taken in the written statement filed by the judgment-debtor in the suit. The suit land was sufficiently described and a specific decree was passed for possession of Khasra number 191. Since due to Consolidation of Holdings in lieu of Khasra number 191 some other Khasra number is given, this would not mean that the decree is inexecutable. It is well settled that the executing Court can determine the land which was given in exchange to the decree-holder in lieu of the land which was the subject-matter of the decree. The executing Court, while determining the actual land in lieu of the land which was the subject-matter of the decree, does not go behind the decree because, in law, the decree-holder is entitled to the possession of the land mentioned in the exchange deed and if during the consolidation proceeding certain other Khasra number is given to the judgment debtor in lieu of this land, the decree-holder would be entitled to get possession of the same. In a similar situation in Amar Chand v. Piara Singh ILR (1963) P&H. 872 the learned Single Judge observed as under:�

The Executing Court has the jurisdiction to determine the land which has been allotted to the vendee in lieu of the land which was the subject matter of the pre-emption decree and to execute the decree against such allotted land. This matter relates to the execution, discharge and satisfaction of the decree which can be determined by the Executing Court u/s 47 of the Code of Civil Procedure. By determining this matter the Executing Court does not go behind the decree because, in law, the decree holder is entitled to the possession of the land mentioned in the sale-deed. In case during the consolidation proceedings certain other Khasra numbers are allotted to the judgment debtor in lien of this land, the decree-holder would be entitled to get possession of the same.

I am in perfect agreement with the observations of the learned Judge and hold that the executing Court has the jurisdiction to determine the land which was given to the decree-holder in exchange and which was the subject-matter of the Civil Court decree and to execute the decree against such exchanged land. The decree can only be executed, discharged and satisfied u/s 47, of the CPC if the executing Court determine the matter as to which land is to be given after the consolidation proceedings in lieu of the subject-matter of the civil Court decree.

The second contention, of the Learned Counsel for the appellant is also frivolous. His contention is that the decree is conditional. I have seen the decree and there is no condition attached to it. The decree is clearly for possession of Khasra number 191.

For the reasons recorded above, this appeal fails and is dismissed with costs. Counsel fee Rs. 300/-.