Khattu Ram vs Charan Dass and Another

Mahesh Grover, J.—This is a petition under Article 227 of the Constitution of India for setting aside orders dated 12.12.2009 (Annexure P17) and dated 18.12.2009 (Annexure P20) passed by the Additional Civil Judge (Senior Division), Guhla (hereinafter called as �the Executing Court'').

I have heard the learned Counsel for the parties and have perused the record.

The petitioner has impugned Annexures P17 and P20 passed by the Executing Court pursuant to the execution of the decree dated 19.7.2004 of the Civil Court, as modified by the District Judge, Kaithal vide judgment dated 20.11.2006. The suit in which the said decree was passed was filed by respondent No. 1 for specific performance against respondent No. 2 and the petitioner, who had purchased some land vide sale deed dated 1.6.1998 out of the land which was subject-matter of the agreement to sell dated 19.6.1997 having been executed between the respondents.

During the course of proceedings, earlier the matter had come up in revision and this Court was impressed by the argument raised by the learned Counsel for the petitioner that a house existed in the area comprised in khasra No. 19 which is also the subject-matter of the execution and, therefore, went on to protect the house in the interest of justice. In Civil Revision No.6733 of 2007, the counsel for respondent No. 1 had stated that while executing the decree, the possession of the petitioner''s house shall not be taken and ingress & egress of his house shall also not be obstructed. Accordingly, the order challenged in the said revision petition was modified to that extent.

The petitioner again approached this Court by way of Civil Revision No.4203 of 2008 saying that order dated 26.2.2008 passed in Civil Revision No.6733 of 2007 was being violated. That revision petition was disposed of vide order dated 27.10.2009, the operative portion of which is reproduced below:

...The disputed questions of fact cannot be decided by this Court. As per Order 21 Rule 101 CPC, all questions relating to right, title or interest in the property arising between the parties to the proceedings in execution are to be determined by the executing court. The executing court is directed to give full effect to the decree passed against the petitioner judgment-debtor and also to ensure that the actual physical possession of the petitioner''s house is saved, as per the earlier directions of this Court dated 26.2.2008. The entire exercise will be done by the executing court within a period of two months after the receipt of a certified copy of this order. It is made clear that the inquiry will be summary in nature and in case, the executing court is of the opinion that the construction sought to be protected by the petitioner is not his residence, it will be open to the executing court to issue directions for delivery of the possession of the structures, if any, existing on the land, which forms part of the decree. The parties are directed to appear before the executing court on 7.11.2009.

The revision petition stands disposed of in the above terms.

The Executing Court thereafter went into the matter and a Local Commissioner was appointed, who reported that in the houses constructed in the disputed land, there are two rooms wherein iron doors are installed and there is roof of girders and Ballas and some household articles are lying therein and in the adjoining verandah there are three doorways, but no doors are installed therein and buffaloes were standing therein. He further reported that the said residence and cattle were verified by Sarain Bhai @ Narain Dass at the time of spot inspection. Another report was obtained from the Patwari which was duly signed by the petitioner and according to which, he has a residential house where he is residing with his sons in the abadi deh of the village. The Patwari further reported that there is old constructed house and boundary wall of the petitioner in khasra No. 18//19 and that at present, there is cattle shed and residence of Sarain Ram s/o Khattu Ram in khasra No. 18//19 and that in this portion, there are two residential rooms wherein doors are installed and some household articles are kept and there is one verandah for cattle. He also reported that at the spot, it appeared that the said construction was occupied for residence recently.

Respondent No. 1, who is decree-holder, is entitled to get the decree executed and it is a settled principle of law that no court can go behind the terms of the decree. The report of the Patwari (Annexure P16) clearly reveals that occupation of the property in question for residential purpose, is recent from which an inference can be derived that the petitioner, in order to defeat the rights of respondent No. 1, has made a makeshift residence in the disputed area. This impression is strengthened because the said report further says that the petitioner and his sons are having a residential house in the abadi deh of the village.

The observations of this Court in orders dated 26.2.2008 and 27.10.2009 stem primarily from the concern that a residential house may not be disturbed, but if the report of the Patwari is to be seen, then this impression that a residential house is existing in the disputed area, stands sufficiently erased. At the time of issuance of notice of motion in the instant petition, this Court once again made an edeavour to protect whatever construction existed and gave an option to respondent No. 1 on the statement made by the counsel for the petitioner to choose any other portion from the remaining area in lieu of the constructed area, which offer was not acceptable to him. Thus, the Court is left with no other option, but to proceed with the case by testing the legality of the impugned orders.

Having gone through the impugned orders, I find that there is no legal infirmity therein. The Executing Court was right in enquiring into the matter in totality in order to ensure the execution of the decree which it has correctly done. Therefore, the petitioner cannot make a grouse of it as respondent No. 1 is entitled to get the execution of the decree in the way it stands.

However, there is no dispute that some construction has been raised by the petitioner and, therefore, in the eventuality of respondent No. 1 getting the portion along with constructed area, it is just and equitable that he compensates the petitioner for the construction which he has raised.

The revision petition is, therefore, disposed of by observing that respondent No. 1 is entitled to get the disputed area in execution as has been determined vide the impugned orders, but, at the same time, the Executing Court shall determine the quantum of the amount to be paid in lieu of the construction which shall be passed on to him by way of the execution of the decree.

Learned Counsel for the petitioner has expressed apprehension that respondent No. 1 is likely to get more area than 4 kanals and 1 marlas in execution of the decree.

I have perused the judgment dated 20.11.2006 passed by the District Judge, Kaithal wherein he has observed that owner-Surinder Singh, i.e., respondent No. 2 could transfer only 16 kanals 9 marlas out of khewat No. 2,whereas he had alienated 20 kanals and 10 marlas vide sale deed dated 13.6.1998 in favour of the petitioner and thus, it was amply established that he could not have transferred the area of 4 kanals and 1marl which was the subject-matter of agreement to sell in favour of respondent No. 1 and regarding which the suit for specific performance was filed. It is, thus, made clear that respondent No. 1 shall be entitled to retrieve the possession of 4 kanals and 1 marla of land from the possession of the petitioner. The Executing Court shall undertake the exercise of determining the quantum of amount to be paid in lieu of the construction existing on the disputed area within a period of one month of the receipt of a copy of this order. Thereafter, the amount so determined shall be paid to the petitioner and simultaneously, he will surrender the possession of the disputed area for onward delivery of the same to respondent No. 1.

The parties shall appear before the Executing Court on the date fixed in the execution petition for further proceedings.

It shall be the duty of the counsel for the parties to communicate this order to their respective parties.