Shakuntla Devi vs Ram Singh Rana and Others

Deepak Gupta, J.—This petition is directed against the order dated 16.7.2008 whereby the learned Executing Court has directed that warrant of possession be issued and the Petitioner (here-in-after referred to as the judgment debtor) be directed to hand over possession of Kacha double storey house containing one room in the lower storey and one in the upper slated roofed measuring 12 x 10 hath, even if the same falls in Khasra No. 378.

The undisputed facts are that Respondents No. 1 to 3 (here-in-after referred to as the Plaintiffs) filed a suit against the Judgment-debtor and Respondent No. 4 Rattan Lal claiming that they are joint owners in possession of the suit land comprised in Khasra Nos. 371 and 374 measuring 0-01-36 hectares. It was further claimed that in this suit land there was one Kacha cowshed which fell down since it was old and decayed. According to the decree-holders Dharam Singh was turned out of his house by his family members and made a request to the Plaintiffs and Rattan Lal to provide him some accommodation and he was given shelter in the cow shed existing in Khasra No. 374. Later Dharam Singh refused to vacate the premises. Dharam Singh, unfortunately, expired and therefore, the suit was filed. Defendant No. 1, Smt. Shakuntla Devi, Judgment Debtor, is widow of Dharam Singh and claimed that the suit property had been agreed to be sold to her husband for a sum of Rs. 8,000/- out of which Rs. 5,000/- had already been paid and the balance was to be paid at the time of the execution of the sale deed. Khasra No. 378 was not mentioned in the plaint at all.

I have gone through the judgment delivered by the learned trail Court in Civil Suit No. 102/99/94 and I find that the entire discussion relates to Khasra No. 371 and 374 only and the reliance placed by the Plaintiffs was on the Jamabandi Ext.P-1, which shows the Plaintiffs and Defendant Rattan Lal to be in possession of these two khasra numbers as Gair Maroosi Tehat Murat Hinan. Decree for possession in respect of these two khasra numbers was passed. When the Bailiff went to execute the warrants of possession he found that Khasra No. 371 comprised of vacant land and possession was handed over to the Plaintiffs. The house situate in Khasra No. 374 was found to be in possession of Ram Singh, one of the decree holders itself and it was found that the judgment debtor was actually in possession of the construction in Khasra No. 378. Admittedly, Khasra No. 378 is shown to be Abadi Deh in the revenue record.

Thereafter, the decree-holders moved an application before the learned Executing court praying that the decree be executed qua the construction even if it be on Khasra No. 378 since according to the decree holders the Judgment-debtor had admitted that the construction was in her possession. The learned trial Court allowed this application and issued fresh warrant of possession. Though he has not clearly stated in the operative portion of his order but the reading of the order clear shows that he has directed that possession of the construction be handed over to decree-holders on identification of the construction by the decree-holders even if it be on Khasra No. 378.

In my view the learned Executing Court had no jurisdiction whatsoever to go behind the decree passed. The decree holders in the plaint had claimed possession only in respect of Khasra Nos. 371 and 374. A decree was passed only in respect of these two khasra numbers. It is a well settled law that an Executing Court cannot go behind the decree. At the execution stage, the learned Executing Court has virtually allowed the amendment of the plaint after the decree had been passed. This course was not available to the learned Executing Court. Therefore, the petition is allowed and it is held that no warrant of possession can be issued in respect of Khasra No. 378, which was not the subject matter of the suit. It is, however, clarified that the decree holders can file fresh suit/proceedings in respect of this Khasra number, if they have any right over the same and the judgment debtor shall be entitled to contest the same on all grounds. The petition is disposed of accordingly. No order as to costs.