Rahul Khanna & Others vs S.C. Mathur & Others

Lok Pal Singh, J

Since, in all these writ petitions, a common judgment and order has been put to challenge, therefore, for sake of brevity, these petitions are being disposed of by this one and common judgment and order.

By means of present WPMS No.1588 of 2018, petitioner/original plaintiff, has sought quashing of judgment and order dated 15.05.2018 passed by Additional District Judge IIIrd, Dehradun in Civil Revision Nos.80 of 2017 S.C. Mathur and others v. Rahul Khanna and others. In other two writ petitions, the petitioners are aggrieved by part of judgment and order dated 15.05.2018, whereby the revisional court has remitted the matter back to the executing court for decision afresh.

Factual matrix of the case are that the petitioner/plaintiff instituted a suit being Original Suit No.200 of 1995 Dr. Rahul Khanna v. Sukhram (deceased) through legal heirs in the court of Civil Judge (Junior Division), Dehradun, seeking a decree of eviction and recovery of possession over the property mentioned as part of property bearing no.4, Old Survey Road, Dehradun, over which one room and joint toilet is constructed, against Sri Sukhram (predecessor in interest of proforma respondents), stating that the respondent is a licensee of the suit property which was revoked by a registered notice dated 18.06.1995, which was duly served on him on 20.06.1995. At the foot of the plaint, the plaintiff has given the description of the suit property as under:-

"A part of property no.4, Old Survey Road, Dehradun wherein there is only one room and a joint toilet which is marked with alphabets A, E, F, D, with green colour."

Along with the plaint, the plaintiff has also annexed the map of the suit property, showing the directions as under:-

North - Property of Jankalyan hospital

South - Bengali Library road/Old Survey Road

East - Property of Ahuja

West - East Canal Road

During the pendency of the suit, respondent no.2/judgment debtor Sukhram entered into an agreement of sale with respondent no.1/judgment debtor vide agreement dated 17.02.2006. The details of the said property is as under:-

One part of property no.4, Old Survey Road, wherein there are four permanent tin shed, one permanent tin shed store, one permanent tin shed courtyard, one permanent tin shed verandah, one combined toilet, one temporary room and two trees which are bounded as under:-

In the North - Property of Jankalyan hospital

In the South - Bengali Library Road

In the East - property of Sri Ahuja

In the West - E.C. Road

The trial court, vide judgment and order dated 8.10.2010, dismissed the plaintiff's suit. After dismissal of the suit, defendant no.1 Sukhram sold the property in question to Shri S.C. Mathur vide registered sale deed dated 13.10.2010. Feeling aggrieved by judgment and decree dated 08.10.2010, civil appeal no.72/2010 was filed by the plaintiff Rahul Khanna, wherein Sri S.C. Mathur was arrayed as party respondent. During the pendency of civil appeal, defendant no.1 died whereafter his legal heirs were substituted in the appeal. Vide judgment and decree dated 28.02.2015 passed by 8th Additional District Judge, Dehradun, appellant/plaintiff's appeal was allowed, thereby directing the respondents to hand over the vacant and peaceful possession of the property in question to the appellant/plaintiff, within two months and not to raise any further construction. Feeling aggrieved, two second appeals were filed before this Court. One by legal heirs of Late Sukhram being S.A. No.54 of 2015 and another by S.C. Mathur being S.A. No.57 of 2015. This Court, vide judgment and order dated 09.08.2016, dismissed both the second appeals. Further aggrieved, legal heirs of Late Sukhram viz. Shanti Devi and another preferred SLP before the Hon'ble Apex Court, which also stood dismissed vide judgment and order dated 19.09.2016. After the decision in civil appeal, the petitioner/plaintiff filed the Execution Case No.34 of 2015, proceedings whereof remained suspended because of pendency of second appeals before this Court. Since the decree passed in favour of the petitioner/plaintiff attained finality upto the Apex Court, the executing court proceeded with the execution case no.34 of 2015. In the execution case, legal representatives of Sri Sukhram and Sri S.C. Mathur filed their separate objections under Section 47 of the Code of Civil Procedure (hereinafter to be referred as the Code), which were registered as misc. case no.416 of 2013 and misc. case no.229 of 2016. By means of objections moved u/s 47 of CPC, respondent no.1 averred that the details of the property mentioned in the decree is incorrect and the property mentioned in the plaint and the execution case no.34 of 2015 and the map annexed is wrong and against the spot. It is stated that dimension of the suit property is not mentioned in the plaint and the suit property is not identifiable on the basis of map. During the pendency of execution case, an application paper no.35-C2 was filed by the judgment debtor Mr. S.C. Mathur thereby praying to summon the Civil Court Amin for giving evidence on the Amin report. Said application was rejected, vide order dated 04.03.2017, whereagainst a writ petition being WPMS No.553 of 2017 was filed before this Court, which was dismissed vide judgment dated 10.03.2017. While dismissing the writ petition, this Court observed that "it is evident that the entire exercise has been undertaken by the judgment debtor to prolong the litigation." It would be worth mentioning that the order dated 10.03.2017 has not been challenged by the defendants before any court of law and it still holds gold.

Feeling aggrieved by order dated 12.04.2017, two revisions being Civil Revision No.8 of 2017 and Civil Revision No81 of 2017 were filed before the 3rd Additional District Judge, Dehradun, one by Sri S.C. Mathur and another by Smt. Shanti Devi and others, legal heirs of Late Sri Sukhram. The revisional court, by the impugned judgment and order dated 15.05.2018, allowed the revisions and set aside the order dated 12.04.2017, thereby remanding the matter to the executing court to frame issues with respect to the identification of the decreed property in view of law laid down in Man Kaur (dead) vs. Hartar Singh Sangha (2010) 10 SCC 512, and thereafter to pass an order afresh after affording opportunity of hearing to the parties.

I have heard learned counsel for the parties and perused the entire record.

A perusal of the plaint depicts that the plaintiff/petitioner, at the end of the plaint, has specifically given the description of suit property, thereby mentioning as under:-

"one part of property no.4 Old Survey Road, Dehradun, whereupon there is only one room and joint toilet which is marked by word A, E, F, G with green colour."

Plaint map annexed with the plaint also depicts that in the North is the Jan Kalyan Hospital, in the South is the Bengali Library Road/Old Survey Road, in the East is the property of Ahuja and in the West is the East Canal Road. The boundaries as well as dimension of the suit property have been mentioned in the map annexed with the plaint.

Record further reveals that the property in question was sold by original defendant Late Sri Sukhram to defendant S.C. Mathur vide registered sale deed dated 13.10.2010. Along with the sale deed, a layout of 4 Old Survey Road (E.C. Road) is annexed, a perusal whereof would show the same boundaries as mentioned in the plaint.

During the pendency of suit, Civil Court Amin was appointed who submit his report dated 18.07.1995. During execution also, civil court amin was appointed who submitted his report dated 28.10.2003 along with the map. Meanwhile, the defendant/judgment debtor S.C. Mathur filed the application paper no.35C2 for summoning the Civil Court Amin, which was rejected by the court by order dated 04.09.2017. Feeling aggrieved, judgment debtor S.C. Mathur preferred writ petition, which was also dismissed vide order dated 10.03.2017 and finally the objections filed by the judgment debtor which were registered as Misc. case no.229 of 2016 under Section 47 of CPC were rejected by a detailed judgment and order dated 12.04.2017. While rejecting the objections, the Executing Court has specifically recorded a finding that there is not dispute in regard to the identification of the suit property as the suit property has been mentioned as part of property no. 4, Old Survey Road and the judgment debtor has not filed any evidence that the suit property is not identifiable.

At this juncture, it would be apt to discuss Order VII Rule 3 of C.P.C. which is extracted hereunder:-

"3. Where the subject-matter of the suit is immovable property.-Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint specify such boundaries or numbers."

A perusal of above provision makes it crystal clear that the description of the property must be sufficient to identify it and if the property is identifiable by boundaries or numbers in a record of settlement or survey, the plaint should specify such boundaries or number. In the case at hand, the suit property has been described by the plaintiff in the plaint not only by the boundaries but also by the plot number, and by giving its description in the plaint map. Thus, by no stretch of imagination, it can be said that the suit property is not identifiable.

Hon'ble Apex Court in the case of case Zarif Ahmad (dead) through legal representatives and another vs. Mohd. Farooq, (2015) 13 SCC 673, has held as under:-

"8. The learned counsel for the defendants argued before us that the property in suit was not identifiable, and the first appellate court committed no error of law in dismissing the suit. However, on perusal of the plaint (copy Annexure P-1), we find that at the end of the plaint, the plaintiff has not only given the boundaries of the plot but also mentioned Nagar Panchayat (Town Area/ Municipal) number of the plot. It is also clearly mentioned at the foot of the plaint that the house in question is situated in Mohalla--Sadakpur, Town Behat Nagar Panchayat, Tehsil Khas, District Saharanpur, and in the plaint map, same is shown by letters Ka, Kha, Ga, Gha, Cha, Chha. In our opinion, there is little force in the argument of the learned counsel for the defendants that the land in suit is not identifiable. Had the land in question been non-identifiable, the Advocate Commissioner would not have given the report, relied by the defendants (copy Annexure P-2) after inspection of the plot in question.

It is contended by the learned counsel for the defendants that no length and width of the land in question is mentioned in the plaint. As such, the decree passed by the trial court was liable to be set aside as the decree could not have been executed.

We have considered the submission of the learned counsel for the defendants but we are unable to agree with it for the reason that had it been a case of mandatory injunction requiring restoration of possession of land to the plaintiff or demolition of the construction raised by the defendants, what the defendants have pleaded before us, could have been accepted but the present suit is for the relief of permanent prohibitory injunction in respect of the land which is described with boundaries and its municipal number. Therefore, it cannot be said that the decree passed by the trial court is unexecutable.

Order 7 Rule 3 of the Code of Civil Procedure, 1908 (for short "CPC"), which pertains to the requirement of description of immovable property, reads as under:

"3. Where the subject-matter of the suit is immovable property.--Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."

The object of the above provision is that the description of the property must be sufficient to identify it. The property can be identifiable by boundaries, or by number in a public record of settlement or survey. Even by plaint map showing the location of the disputed immovable property, it can be described. Since in the present case, the suit property has been described by the plaintiff in the plaint not only by the boundaries but also by the municipal number, and by giving its description in the plaint map, by no stretch of imagination, can it be said that the suit property was not identifiable in the present case.

In our opinion, the High Court has rightly held that the first appellate court has erred in law in dismissing the suit by holding that the land is not identifiable. It appears that the first appellate court has wrongly framed the additional issue as to whether the property in dispute is identifiable or not particularly when there was no such plea in the written statement. We are in agreement with the High Court that there was no need on the part of the first appellate court to remit the matter to the trial court as contended by the defendants before it (the High Court) to allow the parties to adduce evidence on the additional issue, as neither issue on identifiability of land arises from the pleadings nor was the evidence lacking on record."

Insofar as the order of the revisional court is concerned, revisionsal court, while deciding the revision, has referred the following judgments of Hon'ble Apex Court:-

i) Bhaan Vaja and others vs. Solanki Hanuji Khodaji Mansang and another, AIR 1972 SC 1371, wherein it was held that the executing court cannot go beyond the decree but it is the duty of the executing court to take into consideration as to whether the decree granted in favour of the decree holder can be executed in its true sense.

ii) Hayat Singh vs. Smt Rama Arya (2018) 1 UAD 743, wherein it has been held that the as per the provisions contained in Order 7 Rule 3 CPC, a property is identifiable by only two methods, one by its plot number, khasra number and second by its boundaries.

iii) Mustt. Katajan Bibi and others vs. Ramla Durgadutta 1984 0 AIR (Gau) 44, wherein it has been held that the property can be identified by its boundaries but if there is a change in the boundaries then the decree cannot be executed.

iv) Saraswat Trading Agency M/S v. Union of India (Calcutta) 2004 AIR (Calcutta) 267, wherein it has been held that where the decree has been questioned on the ground that the decree is inexecutable then objections u/s 47 of CPC can be filed before the executing court.

v) Heirs of Charanpai reang Smt Samabati Hang and others vs. Sri Dinabandhu Das and others AIR 1964 Tripura 36, wherein it has been held that it is the duty of the plaintiff to mention the clear cut details of the suit property in the plaint. If the details of the property is mentioned in the suit is not identifiable, in such a case, decree passed by the court cannot be executed.

vi) A.V. Papayaaa Sastry and others vs. Govt. of A.P. and others (2007) 4 SCC 221, wherein it has been that if a decree has been obtained by playing fraud, the same can be challenged at any point of time, either in appeal, revision or writ petition.

vii) Swami Devanand Bharat Bhakti Yogashram Trust and Anr. Vs. Prescribed Authority/Sub Divisional Magistrate & Ors. 2017 (3) UAD 580, wherein it has been held that fraud vitiates everything.

viii) Man Kaur (dead) vs. Hartar Singh Sangha (2010) SCC (Civ) 239

None of the aforesaid judgments are applicable to the facts and circumstances of the present case. It is not the case of the judgment debtors/respondents that the decree has been obtained by playing fraud. Defendants/judgment debtors, during the suit proceeding, have not raised the objection that the suit property is not identifiable either by its plot number or boundaries. The issue of identification of the suit property was never agitated by the defendants/judgment debtors during trial or appeal. It is, only in the execution proceedings, that first time this objection has been raised by the defendants by filing objections under Section 47 of CPC, which shows the ill intention of the defendants to prolong the execution proceedings after losing the case upto to the Apex Court. In this regard, this Court, while dismissing the writ petition filed against the order dated 04.03.2017, has also categorically observed that that "It is evident that the entire exercise has been undertaken by the judgment debtor to prolong the litigation. The objections have already been filed to the execution petition."

The revisional court has also mentioned and discussed the judgments cited by learned counsel for the plaintiffs, which are as follows:-

i) Major S.S. Khanna v. Brig. F.J. Dillon Civil Appeal No.320 of 1993, AIR (1964) SC 497 wherein it has been held that the revisional court cannot go beyond the provisions contained in Section 115 of CPC.

ii) Manik Chandra Nandy vs. Debdas Nandy and Ors. Civil Appeal no.10449 of 1983 wherein it has been held that the revisonal court, in exercise of revisional jurisdiction, cannot re-examine or re-assess the evidence on record and cannot substitute its finding with the findings given by the trial court.

iii) Bhaichand Ratanshi vs. Laxmishanker Tribhoyan Civil Appeal No.1006 of 1971, wherein it has been held that in exercise of revisional jurisdiction, jurisdiction of the court is limited where only it can be considered whether the order impugned is legally sustainable?

Besides above, the revisional court, while remanding the matter to the executing court, has laid heavy emphasis in the case of Man Kaur (dead) vs. Hartar Singh Sangha (2010) 10 SCC 512 and directed the court to frame the issue of identification of decreed property in view of the law laid down in said judgment. The revisional court has relied upon paragraph-18 of the said judgment. After going through the decision of Man Kaur (supra) very carefully, I cannot fathom as to how the revisional court applied the ratio of said judgment in the facts and circumstances of the present case. Therein the issue was with regard to readiness and willingness to perform a specific performance of a contract. Such is not the issue in the present case. This Court is of view that the decision of Man Kaur (supra) is not at all applicable to the facts and circumstances of the present case. Having said so, this Court has no hesitation in observing that the revisional court has misdirected itself in deciding the case in the light of Man Kaur (supra). The revisional court, without any valid and justified reason, has placed reliance on the decision of Man Kaur (supra). From the perusal of plaint, map annexed thereto, the sale deed dated 13.10.2010 executed by Sukhram in favour of respondent no.1 Sri S.C. Mathur as well as the Amin reports dated 18.07.1995 and 28.10.2003, it is evidently clear that the property is very well identifiable by its plot number and boundaries. In all these documents, the description of the property viz. the boundaries and the plot number is same. The revisional court has wrongly arrived to the conclusion that the report submitted by the civil court Amin is different from the plaint map; the judgment debtor Sukhram is in possession over one part of property no.4, Old Survey Road, Dehradun since 1948; and that on the basis of fake and indistinct decree, possession cannot be delivered to the decree holder. The revisional court has failed to consider that the application for the same purpose filed by the respondent no.1 was rejected by the trial court vide order dated 12.04.2017 and the order dated was affirmed by this Court.

In the light of aforesaid discussion, this Court is of the considered view that the revisional court has committed illegality in setting-aside the well reasoned order of the executing court. That being the position, judgment and order passed by the revisional court dated 28.02.2015 is liable to the set aside.

At this stage, I could not refrain myself in observing that in the present suit was filed in the year 1995. After losing the suit from the trial court, the decree holder won the case from every court of law, even upto Apex Court, wherefor he waited for more than 21 years. It is very agonizing that when the time came for the decree holder to enjoy the fruits of success, he is again being deprived of the same at the hands of the judgment debtors, who are trying their best to thwart the decree by all possible objections. Execution, is the last stage of a suit, whereby possession/recovery of anything/amount recovered by a judgment is obtained. It is styled as final process. But, here after the initiation of the execution proceedings, attempt is being made by the judgment debtors to start the proceeding de novo by raising objection with regard to the identification of the suit property, just to frustrate the decree. After each and every order passed by the court below, decree holder has been unnecessary dragged into litigation.

Delays and difficulties in execution of decrees/awards erode public confidence and trust in the justice delivery system. Execution jurisdiction deserves special attention and expeditious disposal considering that the decree-holders have already succeeded in the litigation and hold a decree/award in their favour.

In Satyawati v. Rajinder Singh and another (2013) 9 SCC 49, a three-Judge Bench of the Supreme Court of India, while observing that Decree Holders must enjoy the fruits of the decree obtained by them in an expeditious manner, has held as under:-

"12. It is really agonising to learn that the appellant-decree-holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant-plaintiff had finally succeeded in January 1996. As stated hereinabove, the Privy Council in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, had observed that the difficulties of a litigant in India begin when he has obtained a decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in Kuer Jang Bahadur v. Bank of Upper IndiaLtd. [AIR 1925 Oudh 448 (PC)] the Court was constrained to observe that: (AIR p. 448) ―

Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by judgment-debtors in such a way as to make courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights."

In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal v. Hazari Lal Kishori Lal [(1982) 1 SCC 525] in para 29 that: (SCC p. 539)

"29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections."

This Court, again Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. was constrained to observe in para 4 of the said judgment that (SCC p. 326)

"4.... It appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time."

Once again in Shub Karan Bubna v. Sita Saran Bubna at para 27 his Court observed as under: (SCC p. 699)

"27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant."

As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain."

In Indian Council for Enviro-Legal Action Vs. Union of India, (2011) 8 SCC 161, the Apex Court observed as under:-

"In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. One way to curb this tendency is to impose realistic costs, ......The courts should be fully justified in even imposing punitive costs where legal process has been abused."

In Buddhi Kota Subbarao (Dr.) Vs. K. Parasaran, (1996) 5 SCC 530, it has been held that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions.

In the light of aforesaid, impugned judgment and order dated 28.02.2015 passed by 3rd Additional District Judge, Dehradun, is hereby set-aside. Writ petition (M/S) No.1588 of 2018 is allowed. Consequently, Writ Petition (M/S) No.2103 of 2018 and Writ Petition (M/S) No.3396 of 2018 stand dismissed. An exemplary cost of Rs. 2,00,000/- (Rupees Two Lakhs) is saddled upon the judgment debtors, for dragging the decree holder unnecessarily to the court every time. The cost so imposed shall be paid by the judgment debtors jointly and severally within a period of two months from today. Rs. 1,00,000/- shall be paid to the decree holder and the remaining amount of Rs. 1,00,000/- shall be deposited with the Uttarakhand State Legal Services Authority. In the event of any failure in depositing the cost, the same shall be recovered as arrears of land revenue from the judgment debtors.

The executing court is directed to proceed with the execution case and decide the same as expeditiously as possible.

Registrar General is directed to place the copy of the impugned judgment and order dated 15.05.2018 before the Judgment Assessment Committee for perusal. Let a copy of this judgment be also sent to the Officer concerned.