Gram Panchayat Dundahera vs Prem Dass

J.V. Gupta, J.

This is decreeholder''s petition, whose execution application has been dismissed, vide impugned order dated 7.10.1978 of the executing Court.

Gram Panchayat, Dundahera, brought a suit against Prem Dass etc. in the year 1956 for seeking a decree for permanent injunction restraining the defendants who were the predecessorsininterest of the present judgment debtors, except Ram Mehar, from interfering in the possession of the decree holder in any manner as well as from raising construction on a piece of land, alleging that the land in question was given to Mahant Gulab Dass as Dholi and he had no right to transfer the same in any manner to other defendants and, as Mahant Gulab Dass transferred the same to defendants Nos. 2 to 5, therefore the decreeholder was entitled to the possession of the suit land. The trial Court decreed the plaintiffs suit, vide judgment dated 31.1.1958. The appeal filed by the defendants was dismissed by the learned Additional District Judge on 23.1.1959. The regular second appeal filed by the defendants in this Court was dismissed as having abated, vide order dated 17.1.1969. The decreeholder then filed application for execution. The said application was resisted by Ram Mehar, one of the judgmentdebtors, who by way of an objectionpetition alleged that the objectors have their houses on the land in question for the last 60 years and, as the land was Dholitenure, therefore, the Panchayat decreeholder had no authority to initiate any proceedings in respect of the land in question. It was also pleaded that the civil Court had no jurisdiction in the matter in question as the decree was passed without jurisdiction. This objectionpetition was contested on behalf of the decreeholder. The trial Court framed the issues and came to the conclusion that, in view of the provisions of section 4(3)(i) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act''), the decree was no more executable. It was also held that the decree holder filed an executionapplication earlier, which was dismissed in default and, therefore, the present executionapplication was not maintainable. Dissatisfied with the same, the decree holder filed this petition in this Court.

Learned counsel for the petitionerdecreeholder contended that all the objections now taken by the judgmentdebtors were taken in the suit itself and were negatived by the Courts below. It was further argued that section 4(3)(i) of the Act does not help the judgmentdebtors. Earlier in the Act of 1954, there was section 5 which provided:

``Where, before the appointed date, on any land which vests in a Panchayat under the provisions of this Act, a person has built or erected any house or any other structure, he shall be allowed by the Panchayat to retain possession of the same on such terms and conditions as may be determined by the Panchayat subject to any rules which can be framed in this behalf.''''

This plea was taken by the defendants in the suit but was negatived by the Courts below. Thus argued the learned counsel, the view taken by the executing Court was wrong and illegal. It was next contended that the second executionapplication was not barred even if the earlier application was dismissed in default and no application for restoration was filed. In support of this contention he referred to Raghunath Gupta v. Nand Ram Verma and another, AIR 1951 Punjab 431(1).

I have heard the learned counsel for the parties. The objection petition was filed by Ram Mehar only, one of the judgmentdebtors. Admittedly, he was not Dholidar. The Dholidar was one Prem Dass chela Gulab Dass, who died and he never filed any objection in the execution application. That being so, the provisions of section 4(3)(i) of the Act do not come to the rescue of the judgmentdebtor Ram Mehar as such. The learned counsel for the judgmentdebtor was unable to advance any argument to sustain the judgment of the executing Court. However, if at all section 4(1)(b) of the Act could be invoked by the judgmentdebtor Ram Mehar, which was not there earlier in the Old Act under which the suit was filed and therefore, the said question is still left open for the executing court to decide after allowing the parties to lead evidence in that behalf. Consequently, the petition succeeds the impugned order is set aside and the case is sent back to the executing Court for deciding the matter afresh after allowing the parties to lead evidence, if any.

The parties, through their counsel, are directed to appear before the executing Court on 18th December, 1985.