Joginder Singh vs Virinderjit Singh Gill and Others

K. Kannan, J—The dispute is only with reference to the property in Khasra No. 2259 to an extent of 2 kanals 18 marlas equivalent to 58 marlas. The plaintiffs have claimed 1/4th share and that would mean that the plaintiff would be entitled to 14-1/2 marlas. Before the passing of the final decree a Local Commissioner had been appointed. He had inspected the property and he had identified OPQN as the property representing 14-1/2 marlas to be allotted to the plaintiffs. In the property identified as OPQN, the objector has raised construction during the pendency of the suit, in-spite of the order of the status quo. The objector is the son of the judgment debtor himself. The judgment debtor having remained ex-parte, his son cannot have a better case in defence than what his father had. The father is the 67th defendant and he has engaged a counsel but did not file the written statement. The Court had imposed costs as a condition preceding to receiving the written statement and since the costs was not paid, the defence was struck off. I cannot find any equities as availing to the objectors and the contentions by him that the final decree was incompetent since it has not determined the share of the defendant, has been dealt with correctly by both the Courts below. There is nothing inherently wrong for a Court to pass a final decree for a plaintiff who alone had sought for his share to be predicated, when the defendants who had also specific shares did not apply for a preliminary decree and seek for allotment by final decree. The case law has been correctly dealt with by the Courts below that the final decree could be for partition of a person claiming the share and the Court need not effect the division amongst the defendants if such a partition had not been sought for by the defendants and they chose to remain in joint possession among themselves.

When the final decree was passed and when the delivery was sought by the decree-holder, the objection has come from the son of the judgment debtor who is the present petitioner through petitions filed under Order 21 Rule 58 read with Order 21 rule 97 with Section 47 CPC. I find it to be a curious nature of objection which the Court must have rejected even at the threshold. Section 47 CPC could be invoked only by parties to the suit or their successors. The objection under Section 47 will relate to all issues regarding the subject of execution and it cannot adjudicate on individual rights who are not parties. Order 21 Rule 58 CPC, on the other hand, is a manner of adjudication of claims by third parties to suit The decision rendered under Order 21 Rule 58 by virtue of Clause 4, is in the nature of the decree which is appealable. The order passed under Section 47 CPC between the parties shall not be appealable and the order will be final. Order 21 Rule 97 to 99 CPC deal with the situations where the decree holder has a right to have the obstruction removed and if mere is an obstruction given by the person who is not judgment debtor or a person claiming under him, the Court is bound to adjudge on the right of the objector and a decision that is passed will be treated as a decree under Order 21 Rule 101 CPC, in the same manner as Order 21 Rule 58 CPC declares. I have already observed in this case, that objector was not a 3rd party to the suit. He was son of the judgment debtor. His own right was claimed to be by virtue of the decree which his father suffered allowing him the benefit of 1/4th share in the suit property. The decree which the son has obtained was itself subsequent to the institution of the suit by the defendant in the instant suit. The son had no independent right to the property other than a plea of admission by the father that his 1/4th share had been transferred to his son, the objector. The presence of the petitioner in the execution proceedings, after the death of the judgment debtor must therefore be taken to be only as a representative of the judgment debtor and not as a 3rd party.

If for any reason, it must be construed that the petitioner was a 3rd parry, he was literally seeking for his right to be upheld on the basis of a decree obtained by him from the judgment debtor, namely, his father and therefore as a transferee of the properly through a decree during the pendency of the instant suit, even his objection under Order 21 Rule 97 would required to be discarded by virtue of Order 21 Rule 102 CPC which bars any pendente lite transferee from causing any obstruction. From any angle, the objection of the present petitioner was incompetent. When the first Court allowed the objection there was no manner for the decree holder to know what was the right which the Court was deciding. If it was a decision under Order 21 Rule 58 or Order 21 Rule 97 only an appeal remedy would have been possible and that is what the decree holder did. If the objection must be taken as objection under Section 47 and the decision upholding the objection could have been assailed, only revision would have been possible. The case went to the Lower Appellate Court by the indiscretion of the Executing Court to allow for a meaningless petition to be entertained which contained reference to inconsistent provisions for maintaining it in one single petition. The petition under Section 47 could not have been maintained by any person other man a party to the proceedings. If the petitioner was therefore resorting to Section 47 treating himself to be a successor-in-interest, then the petition under Order 21 Rule 58 or Order 21 Rule 97 CPC could not have been maintained. If he was a 3rd parry then petition under Section 47 was not competent. All this dialogue is only to assess the quality of the petition filed by the petitioner and if the order was passed by the Executing Court without properly adverting to the nature of petition and the competency, I would only mink that the Appellate Court was justified at least in seeing that the petitioner had no lawful objection as a person claiming under a decree from his father who was a judgment debtor to the suit The Court was also justified in stating that there was nothing incompetent in the trial Court granting the final decree on the basis of the share claimed by the plaintiff, when the defendants had chosen not to ask a separate share decree and when they woe prepared to let the property remain joint as far as their respective shares were concerned. The duty of determining the share of each party and making allotments would arise only when any party seeks for the same. The absence of such a prayer itself was perfectly competent for a Court to uphold the plaintiffs claim to the share which he was entitled to and allow for predication of his share only.

The revision petition could have been dismissed without much ado but the counsel for the petitioner argued with vehemence, for his own petition to set aside the preliminary decree is reported to be pending before the Court below and he would therefore urge that he should have his right to have an adjudication on the application to set aside the decree. I have noticed from the voluminous record, the copies of which have been made available, that the petitioner father, after he had engaged a lawyer in the suit and later on when the defence was struck off, did not participate in the proceedings and had indulged in allowing for a transfer to be made which was the subject matter of decree obtained by the petitioner against his father. To what benefit he will obtain and what decision he could come by in his petition for setting aside the ex-parte decree, I cannot presage now but I will let it take its own course. As of now, to allow for an objection to be brought for delivery of property on a fragile plea that he has a right to the property by virtue of decree which he obtained against father cannot be countenanced because of the reasons already given of the nature of the transaction being patently collusive and during the time when the instant suit was pending. I also find that at the time when the Local Commissioner inspected the property before drawing up his report on the basis of which the final decree has been passed, he has noticed that the property identified for allotment to the plaintiff (NOPQ) there was only a new construction without a roof. It was in evidence that construction was being made only at the time of the Commissioner''s visit. Further probe in the record would also reveal that the plaintiff had sought for an injunction against the father of the petitioner, Mukand Singh who was the 67th defendant and the Court had granted the order of status quo making an observation that the property was vacant at that time. Some of the records are truncated and important records containing the signature of the parties have been torn obviously with an intent to erase the evidence which would be available as regards the nature of the orders passed by the Court and admission made by the parties. I cannot really vouch therefore to the whole issue on the extent of knowledge which the petitioner and his rather had about the proceedings and the finding regarding the nature of the construction at the time when the report was filed.

There was also an argument before me that the decree on the basis of which the petitioner''s predecessors claimed half share cannot be sustained at all since the half share claimed by the petitioner''s predecessors namely, Mukand Singh and Chanan Singh was invalid by virtue of the Punjab Pre-emption Repeal Act, 1973. I cannot reopen an issue of what has been already concluded. The plaintiff has filed the suit for 1/4th share admitting in his plaint that half belongs to Mukand Singh and his brother by virtue of decree obtained claiming pre-emption. If the pre-emption right was not available by virtue of the repealing Act, the decree ought to have been challenged. It is not dear from the records as to how the half share granted under decree to Mukand Singh was enforced by Mukand Singh. It is also not very clear as to how the Court granted that decree in the face of the Repealing Act but I take it as concluded that the share of Mukand Singh and Chanan Singh and the representatives to the half share cast-not be denied by the plaintiff for there is an share belonged to Mukand Singh and Chanan Singh and plaintiffs own right as being confined to 1/4th share. The impleadment of Mukand Singh and the legal representatives of his brother was only on an admission that they were entitled to a half share.

I wanted to ensure that there was no further spillage of litigation if tint plaintiff could be accommodated in any vacant portion to an extent of 14.5 marlas, if it was still available to khasra No. 2259. In the plan which was appended to the report of the local commissioner and which was part of the final decree, it would seem that there is still a vacant portion available, west of OP and east of the passage leading to property in 22/58/1 and 22/58/2, that belong to the decree holder. If any vacant portion is still available then there could be a readjustment of rights of parties and the allotment of 14-1/2 marlas could be given to the plaintiffs. It is not possible for me to assess the exact status of the property in its present condition. If there is a vacant land of 14/1/2 Marlas, even the indiscretion of the petitioner in putting up the construction despite Court orders need not be put up against him for the plaintiffs share could be fully addressed. If there is no portion of property which is still available, then the petitioner obstruction ought to give way to the final decree which has already passed. I had reopened the case only to elicit whether the vacant land is available but the parties are to no mood to relent and press for their respective hardened positions and would want no closure of the petition and want to take it to the successive generations in the future. For me, the case could not disposed of by merely dismissing the petition for, there will be no end to litigation. Therefore, I will still keep it pending to wait for a report from the Executing Court about the status of property in Khasra No. 2259 to assess the present condition. I therefore, direct the Executing Court to appoint a local commissioner who shall be the Naib Tehsildar of the concerned District. He shall identify the property in Khasra No. 2259 and locate 58 marlas in that Khasra number. He will also assess the nature of construction and the extent of the vacant places which are available, draw up a plan and furnish to the court. The same shall be transmitted to this Court. The copy of this order is directed to be despatched by the Registry by personal messenger and the Executing Court shall cause the Naib Tehsildar to undertake the work in the manner directed in the last paragraph. It shall sufficient for the Naib Tehsildar to issue notices to the parties at the spot for the order is now being passed in the presence of the parties before me and that shall be taken as sufficient notice of the impending visit. If there is any obstruction to the work assigned to him, he will be competent to take the requisite police assistance and would thwart, any attempt to disturb his working. To await the report from the Executing Officer for 29.07.2015.