Hukam Chand vs Shanti Devi

J.V. Gupta, A.C.J.

This order will also dispose of Civil Revision Petition No. 2553 of 1988, as the question involved is common in both the cases.

The preemption suit filed by Hukam Chand against Smt. Shanti Devi was decreed on August 27, 1983, by the trial Court. Appeal against the said judgment and decree of the trial Court was dismissed on Nov. 30, 1983. Thereafter, the decreeholder sought execution of the said decree and therein warrants of possession were issued on August 18, 1984. The decree holder claimed actual physical possession of the specific Khasra Nos. given in the decreesheet. Objections to the petition were filed by the judgment debtors to the effect that only symbolical possession could be delivered to the decreeholder and not the physical possession as claimed by him. The executing Court after framing the necessary issue and allowing the parties to lead evidence, came to the conclusion that though Krishan Chand, vendor, sold specific Khasra Nos. of the suit land, but it would be considered a sale of share out of the joint holding and without the partition, the decree holder could not get the physical possession. Consequently, it was held that the decreeholder was not entitled to get the physical possession and that he was only entitled to get the symbolical possession. The order has been challenged by the decreeholder in this petition.

According to the learned counsel for the decreeholder, he was entitled to the physical possession of the specific Khasra Nos. sold in his favour for which the decree was passed in the preemption suit. In support the contention, the learned counsel referred to Bachan Singh v. Inder Singh, 1980 Punjab Law Reporter 174. On the other hand, the learned counsel for the judgmentdebtors submitted that according to the Full Bench judgment of this Court in Bhartu v. Ram Sarup, 1981 Punjab Law Journal 204 the sale of a specific portion of the land by a cosharer out of the joint khata would be a sale of the share out of the joint land and, therefore, the decreeholder was entitled to the symbolical possession only.

After hearing the learned counsel for the parties I am of the considered opinion that the contention raised on behalf of the decreeholder has merit. The view taken by the executing Court in this behalf was wholly wrong and illegal.

The proposition laid down in the Full Bench judgment, referred to above, has no applicability to the facts of the present case. In that case the question was as to whether the sale could be preempted by a cosharer when the sale was of specific khasra No. out of the joint land. The question of getting the physical possession of the specific khasra Nos. out of the joint holding is governed by the provisions of Order XXI rule 35 of the Code of Civil Procedure, which provides as to how the decree for immovable property is to be executed. Admittedly, the decree is for specific khasra Nos. which were sold to the vendee by the vendor. That being so, the decreeholder is entitled to the physical possession of the specific khasra Nos. though it may be open to the judgmentdebtors to make adjustments at the time of partition, if any.

Faced with this situation, the learned counsel for the judgment debtors submitted that in view of the Supreme Court judgment reported in Atam Parkash v. State of Haryana, 19861 Punjab Law Reporter 329 : 1987 RRR 116, the decree could not be executed as the provisions of the Punjab Preemption Act, on the basis of which the suit was decreed, were declared to the ultra vires the Constitution of India. According to the learned counsel, such an objection was available to the judgmentdebtors in the execution proceedings. Since the decree has been rendered a nullity by the said Supreme Court judgment, the executing Court could not proceed with the said decree in execution. In support of the contention, the learned counsel referred to Moinuddin v. Deputy Director Military Lands, AIR 1956 Allahabad 684 and Kiran Singh v. Chaman Paswan, AIR 1954 Supreme Court 340.

There could not be any objection to the said proposition laid down in the aforesaid two judgments. However, in the present case, the Supreme Court while deciding Atam Parkash''s case observed in paragraph 14 of the judgment as follows :

"We are told that in some cases suits are pending in various Courts and, where decrees have been passed, appeals are pending in appellate Courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding interparties and the declaration granted by us will be of no avail to the parties thereto".

It is, therefore, apparent that where the suits have been decreed and the same have become final since no appeals have been filed against the same, the said decrees were binding interparties and the declaration made by the Supreme Court was of no avail to the parties thereto. In view of these observations of the Supreme Court, it could not be successfully argued on behalf of the judgmentdebtors that the decree sought to be executed had become a nullity in view of the judgment of the Supreme Court in Atam Parkash''s case (supra).

Consequently, the revision petitions succeed. The impugned orders are set aside and the decreeholder will be entitled to get the physical possession of the suit land decreed in his favour.