Hazuri alias Hazura Singh vs Lehna Singh and Others

B.S. Yadav, J.—This second appeal arises out of a suit filed by the present Respondents for possession of 1/3rd share of land measuring 42 kanals 6 marlas situated in village Burail. The facts as emerge from the plaint are that the Plaintiffs (now Respondents) were owners of land measuring 13 Bighas 12 biswas to the extent of 1/3rd share The remaining shares belonged to other persons whose names have been given in the plaint One Karora Singh was occupancy tenant of that land and after his death his widow, Manglan succeeded to those rights She also died somewhere in 1952. The Defendants (one of whom has died and his legal representatives have been brought on the record), claiming themselves to be the heirs of Manglan, got the mutation sanctioned in their favour and took possession of the above land as occupancy tenants. The Plaintiffs alongwith other co-owners filed a suit for possession of the land against them on the ground that the latter had no right to inherit the occupancy rights after the death of Manglan. Trial Court decreed the suit on 20th January, 1954. The Defendants'' appeals were dismissed upto the High Court. In the meantime consolidation proceedings took place in the village and the suit land was allotted in lieu of the old Khasra numbers. The present Plaintiffs applied for execution of the decree. They were delivered symbolical possession of the suit land on 12th March, 1961. Mutation was entered in favour of the then Plaintiffs but the Revenue Officer rejected it on 15th June, 1967. Thus entries in the ownership column in the revenue papers continued in the names of the Defendants. (It may been entioned here that the Plaintiffs'' co-owners have since sold their 2/3rd share to the Defendants) According to the Plaintiffs, the previous judgments and decrees operate as resjudicata between the parties and the Defendants are debarred from denying their (i.e. Plaintiffs'') title.

The Defendants contested the suit. They admitted about the previous litigation and also about the fact that they had purchased the shares of the other co-sharers. They however, denied the fact that the suit land was allotted in consolidation proceedings in lieu of the land held by Manglan. They further averred that Manglan had become owner of the land in her possession on the coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1951 and they being her heirs inherited the property. Even if they were not the heirs of Manglan, they have acquired ownership of the suit land by adverse possession for more than 12 years. It was also pleaded that the present suit was not maintainable in view of Section 47, Code of Civil Procedure.

Upon the allegations of the parties the learned trial Court framed the following issues:

Whether the Defendants'' rights as heirs of Smt, Mangla over the land in dispute are resjudicata If so, to what extent?

If issue No. 1 is not proved, whether the Defendants acquired title over the land in dispute as heirs of Smt. Mangla ?

Whether the land now in suit was allotted in consolidation in lieu of the land detailed in para 1 of the plaint ?

Whether the Defendants have acquired title over the land in suit by adverse possession for more than 12 years ?

Whether the suit is not properly valued for purposes of court fee ?

5-A Whether the suit is not maintainable as alleged in the additional objection No. 3 of the amended written statement.

Relief.

The learned Senior Subordinate Judge, Chandigarh, who tried the suit held under issue No. 1 that the previous judgments operate as resjudicata between the parties. In view of that finding issue No. 2 was decided against the Defendants. Under issue No. 3 it was held that the land in dispute was allotted in consolidation proceedings in lieu of the land held by Mst. Manglan as occupancy tenant. Under issue No. 4 it was held that the Defendants had not not acquired ownership by adverse possession. Issue No. 5 was not pressed before him and, therefore, it was decided against the defendants. Under issue No. 6 it was held that the suit was not barred by the provisions of Section 47, Code of Civil Procedure. As a result of the above findings, the Plaintiffs'' suit was decreed.

Feeling aggrieved the Defendants filed an appeal which was heared by the learned Additional District Judge, Chandigarh. Before him only the finding of the learned trial Court under issue Nos. 3, 4, and 5-A were challenged. He confirmed the findings of the learned trial Court under those issues and consequently dismissed the appeal. The Defendants have now come to this Court in second appeal. Before me only issue No. 4 and 5A were argued by the Learned Counsel for the Appellant and, therefore, I will take those issues only.

I will first take issue No. 4. The Learned Counsel for the Appellants argued that the Defendants have become owners of the suit land by adverse possession as they had entered into possession somewhere in 1954 or 1953 and since then have continued in possession upto the filing of the present suit which was filed on 19th March, 1970. This argument is liable to be rejected on two grounds. Firstly, the Plaintiffs had not become entitled to possession of the land held by Manglan till the earlier suit filed by them was finally decided. Vide Exhibit P-3. copy of the judgment and P-4, copy of the decree, the second appeal filed by the Defendants was decided by this Court on 3rd February, 1959. The present suit was filed within 12 years from the final decision of that suit Therefore, the Defendants cannot be said to have become owners of the suit land by adverse possession.

Otherwise also the Defendants have not become owners of the suit land by adverse possession. The judgment, copy Exhibit P-2 and decree sheet, Exhibit P 6 passed by the trial Courtan the earlier suit filed by the Plaintiffs reveal that they had filed that suit for "Dakhal Malkana" and the decree was also granted for that relief. It is, of course, not clear from the file that why the Plaintiffs did not sue for actual possession and sued only for "Dakhal Malkana". The Plaintiffs applied for execution of the decree and on 12th March, 1961 "Dakhal Malkana" over the whole land which was allotted in consolidation proceedings in lieu of the land held by Manglan, was delivered to the Plaintiffs by the revenue officials in terms of decree. The delivery of symbolical possession would amount to dispossession of the judgment-debtor i.e. Defendants. In this respect reference can be made to Kaku Singh and Others Vs. Gobind Singh and Others, , wherein it was remarked:

It would, therefore, seem that so far as the law of limitation is concerned (practically all the authorities discussed above decided matters which arose on question of limitation). It is well settled that delivery of symbolical possession is deemed to be as effectual as delivery of actual possession specially when any dispute arises between the decree-holder and the judgment debtor. But delivery of symbolical possession given in circumstances in which actual possession ought to have been given is nullity as symbolical possession it not actual possession nor is it equivalent to actual possession except where the CPC expressly or by implication provides that it should have that effect vide AIR 1937 350 (Lahore)

In Mst. Mewa and Another Vs. Amar Singh and Others, also it was remarked:

The delivery of symbolical 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-debt (vide Juggobundhu Mukerjee v. Ram Chunder Bysack, ILR 5 Cal. 584 (FB) approved by the Privy Council in Sri. Radha Krishna Chanderjit v. Ram Bahadur, AIR 1917 PC 197.

As the Defendant-judgment-debtors were bound by the decree, the delivery of symbolical possession to the Plaintiffs would amount to their dispossession and their adverse possession, if any, would come to an end from the date of such delivery of possession. The present suit was filed well within 12 years from the date of symbolical possession to the Plaintiffs. In such circumstances the Defendants cannot be said to have become owners of the suit land. The findings of the learned courts below under issue No. 4 are confirmed.

Now I take issue No. 5-A. I am of the opinion that the present suit appears to be misconceived. If in this suit the Plaintiffs want to get it established that the present land was allotted in consolidation proceedings then that is a question arising between the parties to the suit in which the decree was passed and it relates to the execution, discharge or satisfaction of the decree. Such a suit is barred u/s 47, CPC as such question is to be determined by the Court which passed the decree. This question cannot be allowed to be agitated by means of a separate suit.

In this suit the Plaintiffs have prayed for a decree for possession of 1/3rd share of the suit land measuring 42 kanals 8 marlas as 2/3rd share belongs to the Defendant-appellants. In execution of the decree, if passed in this suit, the Plaintiffs would only be entitled to symbolical possession as the Defendants are in actual possession of the land. As noticed earlier, symbolical possession of the whole land measuring 42 kanals 8 marlas was delivered to the Plaintiffs on 12th March, 1961 and the Plaintiffs accepted the delivery of possession. It is not the Plaintiffs case that they have been divested of their symbolical possession. This the decree if passed in this suit would be infructuous. The Courts are reluctant to pass such decrees.

For the foregoing reasons I accept the present appeal and set aside the judgments and decrees of the learned Courts below and dismiss the suit of the Plaintiffs. In the circumstances of this case, the parties are left to bear their own costs throughout.