Sher Singh Dudani vs Prakash Chand Dheeran

Sanjay Yadav, J.—Heard.

Rejection of an application for setting aside the Advocate Commissioner''s report and re-inspection of site and for permission to lead evidence by order dated 22.10.2007 in Executive Case No. 8-A/1969 led the petitioner prefer a Civil Revision: C.R. No. 418/2007. The Civil Revision since was not found maintainable by order dated 21.2.2013 and armed with the leave to file Writ Petition under Article 227 of the Constitution, present petition has been filed.

The relevant facts very briefly are that, a suit for specific performance of contract dated 7.5.1966 was filed by the petitioner in regard to disputed house vide C.S. No. 8-A/1969. The suit was decreed vide Judgment dated 6.2.1976. The decree was affirmed in First Appeal: F.A. No. 40/76. However, in LPA 1/1982 decided on 16.01.2001 the decree was modified to the extent that the defendant No. 1 shall execute the sale-deed in respect of two rooms of the suit house. Paragraph 10 and 15 of the Judgment relevant in present context are extracted hereunder:

"10-In the application dated 8/4/1982, the respondents have stated that in part performance of the contract dated 7/5/1966, the respondents have paid the sum of Rs. 5,300/-to the appellant No. 1 Balkrishna Das who is the father of the other appellants and Darta of the joint Hindu family. The respondents have also stated that on getting the property released from the mortgage of Viththaldas, they have entered in possession of the two rooms which had been mortgaged to him measuring 22 1/2 feet x 30 feet. It has been specifically averred that the portion in possession of the respondents is much less than the share of the defendant No. 1 Balkrishna Das who has executed the documents as Karta of the family and the plaintiffs are ready and willing to have the sale-deed executed on payment of such balance of consideration which the court may fix and direct. It is in this context that a prayer for alternative relief has been introduced seeking specific performance of the contract in respect of the share of defendant No. 1 Balkrishna Das and offer, in such a contingency, has been made to give up any further claim for specific performance or for damages. This application has been resisted in the reply dated 9-4-1982 filled on behalf of the appellants, inter alia, on the ground that the alternative claim has been made with a view to overcome the basic flaw that the family property could not have been alienated as there was no legal necessity and further that the plaintiffs had failed to prove their readiness and willingness to perform their part of the contract. The fact that the two rooms in possession of the plaintiffs after release from the mortgage from Vithal Das are less than the 1/5 th share of the defendant No. 1 has not been denied.

15- In the result, this appeal is partly allowed and the decree of the specific performance for execution of a sale-deed and its registration of the entire suit house is modified and it is ordered and decreed that the defendant No. 1 for the consideration of Rs. 5,000/- already received shall execute the sale-deed in respect of the two rooms of the suit house of which the plaintiffs have obtained possession from Vithaldas and the sale of this portion shall equally bind the other defendants. The claim of the plaintiffs for specific performance of contract by execution of a registered sale-deed in respect of the suit house, except the portion aforesaid, is dismissed. The plaintiffs shall also not be entitled to any damages on account of the failure of the defendant No. 1 to execute the sale-deed in respect of the entire suit house."

Thus, sale deed which was to be executed was in respect of two rooms admeasuring 22 1/2 feet x 30 feet. The Judgment in LPA 1/1982 was affirmed by Supreme Court in Civil Appeal No. 878/1998 which was disposed of on 16.10.2001 in following terms-

"27- The appeal is accordingly disposed of by modifying the impugned judgment and decree of the High Court, by holding that the plaintiff would be entitled to the specific performance of contract with respect to the defendants respondents shall pay them a sum of rupees one lakh as compensation non-execution of the sale with respect to the remaining portion of the house. The amount of compensation shall be paid within a period of three months failing which the appellants would be entitled to interest on the said amount at the rate of 18% per annum from the date of the default till the whole amount is paid." 5. It is this decree which has been put to execution. In process thereof controversy arose as to area. To ascertain it Commission was issued by the executing Court by order dated 24.8.2004 Commissioner submitted the report in following terms:

Apparently, the area being less than decreed in LPA (Paragraph 10 whereof may be referred to), the petitioner, Decree holder, sought leave to examine the Commissioner and for re inspection, it is this application which was dismissed by impugned order dated 22.10.2007.

Though respondent supports the order, but has no answer to the fact that the decree in LPA was in respect of execution of sale deed of two rooms the area wherefor was given in paragraph 10 i.e. 22 1/2 x 30 feet. Thus Judgment Debtor is not fair in his disposition, because the plaintiff Decree Holder alleges the encroachment by the Judgment Debtor.

Viewed thus obligatory it is for the Executing Court to have ascertained execution of sale deed of two rooms admeasuring 22 1/2 feet x 30 feet. And since Commissioner''s report reflected an area less than the area decreed, rejection of application for re-inspection cannot be given the stamp of approval. Therefore, while setting aside the impugned order dated 22.10.2007, the executing Court is directed to re-issue the Commission for re-inspection to ascertain that the Decree Holder is placed in possession over 22 1/2 feet x 30 ft. as decreed.

Furthermore, since the judgment debtor is not fair in their disposition that, despite of the affirmation of Judgment and Decree in LPA No. 1/1982 in Civil Appeal No. 878/1998, they have not placed the Decree Holder in possession over 22 1/2 ft. x 30 ft., therefore, this is a fit case wherein cost can be imposed on respondent Judgment Debtor which is quantified at Rs.25,000/- (Rupees Twenty Five thousand) to be paid to the Petitioner Decree Holder.

With these observations petition stands disposed of.