Tungal & Others vs Ramesh Chand Vaish & Others

Manoj K. Tiwari, J

This petition under Article 227 of Constitution of India is directed against the order dated 26.09.2013 passed by Executing Court/Civil Judge (Junior Division), Dehradun in Misc. Case No. 10 of 2004 "Shri Parsa & others Vs. Shri Ramesh Chandra Vaish & others". The order passed by Revisional Court dated 29.01.2018, affirming the order of the Executing Court, has also been challenged in this petition.

Facts of the case are that one Ram Kishori Devi (Predecessor-in-interest of respondents) filed an eviction suit against five persons, namely, Parsa, Tungal, Phullo Ratti Ram and Mahant Ashok Prapan Sharma in the Court of Munsiff, Dehradun, which was registered as Original Suit No. 57 of 1960. The said suit was decreed ex-parte vide order dated 31.10.1960. The said ex-parte decree was thereafter, set aside by learned trial Court on 22.03.1972 on an application under Order 9 Rule 13 C.P.C. filed by the defendants. After hearing the defendants, the suit was again decreed by the learned trial Court vide judgment & order dated 05.08.1982, against which defendants preferred an Appeal under Section 96 C.P.C., which was registered as Civil Appeal No. 98 of 1982. The said Appeal was dismissed as abated by learned IInd Additional Civil Judge, Dehradun vide order dated 19.04.1991. Application filed by Defendants/Appellants for setting aside said order was rejected vide order dated 07.12.1994. The defendants in the suit (petitioners herein) challenged the order passed by IInd Additional Civil Judge, Dehradun in Civil Appeal No. 98 of 1982 by filing Writ Petition No. 191 of 1995, which too was dismissed. Thus, the decree passed by learned trial Court in Original Suit No. 57 of 1960 attained finality.

Since the original decree holder had passed away in the meantime, therefore, application for execution of the decree was filed by her legal heirs on 15.05.1995, which was registered as Execution Case No.8 of 1995. The judgment debtors filed their objection under Section 47 C.P.C., which was registered as Misc. Case No. 71 of 1999. In the said objection, the judgment debtors contended that they are in possession over the land in question since long and they have also obtained a Bhumidhari Sanad in respect of the subject land from the Competent Authority on 18.04.1967, therefore, they have become owner of the said land, as such, they cannot be evicted from the suit property and execution proceedings deserve to be closed. The said objection was rejected by the executing court vide order dated 28.04.2001.

Subsequently the judgment debtors filed another objection under Section 47 of C.P.C., which was registered as Miscellaneous Case No. 10 of 2004, in which all objection raised earlier were raised and it was further contended that provisions of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (9 of 1957) were made applicable to the subject land, consequently, the plaintiff/decree holder was divested of all his rights over the subject land. It was further contended that by application of provisions of aforesaid Act (9 of 1957), the Civil Court lost jurisdiction to try a suit in respect of subject land and only a revenue court could have decided the suit for eviction filed by the decree holder.

The said objection, registered as Miscellaneous Case No. 10 of 2004, was rejected by learned executing court vide order dated 26.09.2013 by holding that the plea regarding lack of jurisdiction was raised by the judgment debtors and decided by learned trial court in the Civil suit, therefore, the question cannot be reagitated before executing court. It was further held by executing court that it cannot sit in appeal over the judgment and decree passed by learned trial court. It was further held that second objection filed under Section 47 of C.P.C. by the judgment debtor cannot be entertained and if such objections are entertained then it will become difficult to execute the decree.

The judgment debtors thereafter filed civil revision No. 152 of 2013 challenging the order passed by executing court. The said revision has also been dismissed vide judgment and order dated 29.01.2018 on the ground that question of jurisdiction was specifically dealt with by learned trial court in issue No. 6, therefore, the said question cannot be raised in execution proceedings. Learned revisional court also observed that the judgment debtors cannot be permitted to file one objection after another, as their earlier objection registered as Miscellaneous Case NO. 71 of 1999 has already been dismissed. Thus, feeling aggrieved, by the orders passed by the executing court and the revisional court, petitioners have approached this Court.

Heard learned counsel for the parties and perused the record.

Mr. Tapan Singh, learned counsel for the petitioners vehemently argues that decree for eviction passed by learned Civil Court against the petitioners is without jurisdiction, thus, the learned Executing Court has erred in not considering this vital aspect of the matter. To elaborate his point, learned counsel for the petitioners submits that since the notification under Section 8 of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 was issued by the State Government on 20.06.1963 in respect of land comprised within municipal limits of Rishikesh, therefore, learned Civil Court lost its jurisdiction to try the suit in respect of suit land. He further submits that the only remedy available to the plaintiff/decree holder was to file a suit under Section 209 of U.P. Zamindari Abolition and Land Reforms Act, 1950. In order to buttress his argument, learned counsel for the petitioners has referred to Bhumidhari Sanad issued by Assistant Collector, Saharanpur in favour of Phool Singh, Tungal, Parsa and Rati Ram on 18.04.1967.

Per contra, Mr. Neeraj Garg, learned counsel appearing for decree holders/respondents submits that the question of jurisdiction of Civil Court was expressly raised by the defendants in Original Suit No. 57 of 1960 and issue no. 6 was framed to the effect "whether the Civil Court has jurisdiction to try the suit". He further submits that issue no. 6 was decided against the defendants/judgment debtors and the challenge thrown by the defendants to the findings recorded by the learned trial Court, including finding on issue no. 6, was unsuccessful and the finding of the trial Court became final, therefore, it was not open for the defendants/ judgment debtors to again rake up this issue in view of explanation (vii) to Section 11 C.P.C. and also in view of provision contained in Order 2 Rule 2 C.P.C. He further submits that since the judgment debtors/petitioners had filed their detailed objection under Section 47 C.P.C. which was rejected by the Executing Court on 28.04.2001, therefore, the second objection filed by the petitioners was not maintainable in view of the provisions contained in Order 2 Rule 2 C.P.C. He further submits that the plea of ouster of jurisdiction, by virtue of provisions contained under U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, would arise only when the land in question is included within demarcated area. He further submits that there is no evidence whatsoever on record to indicate that the subject land was included within demarcated area.

A similar question regarding ouster of jurisdiction of civil Court in view of provisions contained in U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 was considered by Hon'ble Supreme Court in the case of Mahant Dooj Dass (Dead) Through Lr. Vs. Udasin Panchayati Bara Akhara & another, reported in (2008) 12 SCC 181. It was held by their Lordships in the said judgment that heavy burden lies on the person who asserts that Civil Court's jurisdiction is ousted and some other Court has been vested with the jurisdiction. It was further held that no evidence was led by the defendants on whom a heavy burden lies to prove the fact that the suit land had been declared as a demarcated area and the suit area being declared to be such has vested with the State Government under Section 8 of 1956 Act. It was further held that for application of the provisions of Section 331 of 1950 Act, which has been incorporated in the 1956 Act, it was necessary for the defendants to prove that the suit land had been demarcated by the State Government by taking necessary steps as contemplated under Sections 3, 4 & 5 of 1956 Act. It was further held that unless the land is vested in the State Government, the provisions of Section 331 of 1950 Act would have no application to oust the jurisdiction of Civil Court.

In the present case, no evidence was led by the judgment debtors to prove the fact that the suit land had been declared as a demarcated area and the suit area being declared to be such has vested with the State Government under Section 8 of 1956 Act. In the absence of proof, it cannot be said that the suit area is a demarcated area and thus vested in the State by issuance of the notification under Section 8 of 1956 Act. Paragraph no. 22 to 29 of the judgment rendered by Hon'ble Supreme Court in the case of Mahant Dooj Dass (Dead) Through Lr. (Supra) are extracted below:

"22. By a notification issued under Section 8 by Rajaswa Vibhag dated 20-6-1963, the agricultural area in Haridwar demarcated under Section 5 has been vested with the State Government. The relevant portion of the notification issued reads as under:

Rajaswa Vibhag Notification No. 2653/1-A-168-60, dated 20-6-1963, published in U.P. Gazette, Part 1, dated 29-6-1963, p. 1217

In exercise of the powers under Section 8 of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act 9 of 1957), the Governor of Uttar Pradesh is pleased to declare that as from the first day of July, 1963, all agricultural areas in the following urban areas of the State, which have been so demarcated under Section 5 of the aforesaid Act, shall vest in the State of Uttar Pradesh, and as from the beginning of that date, all such agricultural areas shall stand transferred to, and vest, except as provided in the said Act, in the State free from all encumbrances:

Sl. No.             Name of urban area                 District

Meerut Division

Rishikesh Municipality            Dehradun

Haridwar Union -do-               Saharanpur

Deoband -do- -do-

By virtue of Section 8 after the agricultural area has been demarcated under Section 5, the State Government would issue a notification in the Official Gazette declaring that from specified date all demarcated areas situated in the urban area shall vest with the State Government and from the date so specified all such agricultural areas shall be transferred to and vest, except otherwise provided in the State free from all encumbrances. The purport of Section 8 is very clear that the agricultural land falling in the urban area has to be demarcated under Section 5 and thereafter the notification shall be issued by the State Government in regard to the demarcated area in the urban area to have been vested in the State.

Sections 3 to 5 lay down the procedure for demarcation of the area for the purposes of acquisition of right, title and interest of intermediaries in urban areas of the agricultural area. Under Section 3, the State Government shall issue a notification in the Official Gazette for the purposes of acquisition of right, title and interest of intermediaries in urban areas and declare such area as demarcated area. After the publication of the notification under sub-section

(1) the Demarcation Officer shall make inquiries in the prescribed manner and thereafter shall determine and demarcate the agricultural area within the urban area. After this, under Section 4, the Demarcation Officer would within three months or such extended period as may be extended by the State Government, from the date of notification issued under sub-section (1) of Section 3, submit his proposal with a reason thereof to the Commissioner, the Commissioner may make such modifications in the demarcated area as he may consider necessary.

After the proposal is finalised by the Commissioner he shall publish a notice in the prescribed form in the gazette and in such other manner as may be prescribed to the effect that the proposals as regards demarcation of the agricultural areas have been formulated and are open to inspection at the place which would be specified in the published notice. Thereafter, any person interested in such demarcation may within three months of the publication of the notice under sub-section (4) of Section 2 could file an objection on the proposal before such officer or authority in a manner provided therein. Section 5 lays down that after the expiry of the period of three months of publication of notice the Commissioner shall decide the objections received and thereafter shall finally demarcate the agricultural area.

Sub-section (2) of Section 5 lays down that after determination of the objections finally demarcated agricultural area shall be published by notice in the gazette or in such other manner as may be prescribed to the effect that final demarcation of the agricultural area in the urban area is made and the details thereof are open to inspection at places specified in the notice. On such notice being issued, sub-section (3) of Section 5 provides for an appeal to the Board of Revenue against the order passed by the Commissioner prescribing finally demarcated agricultural area.

Section 8 lays down that after the agricultural area in the urban area has been demarcated under Section 5 the State Government shall notify it in the Official Gazette that such area is vested in the State from the date specified therein and all such agricultural areas shall stand transferred and vested in the State Government free from encumbrances. From the aforesaid provision, it is amply clear that elaborate procedure has been laid down before the agricultural area in the urban area is declared to be a demarcated area for the purpose of vesting in the State free from encumbrances.

Section 3 provides for a notice to the general public that a particular agricultural area in the urban area is being picked up for declaring that area to be demarcated area for the purposes of all right, title and interest of intermediary to be vested with the State Government free from all encumbrances. After such notification the Demarcation Officer has to apply his mind, make inquiries whether a particular area is to be declared as a demarcated area and thereafter submit his proposal for the purposes of declaration of demarcated area before the Commissioner. The Commissioner is authorised to make a modification in the proposal and thereafter is called upon to publish a notice in the gazette or in any other manner as prescribed, that the proposal as regards demarcation of the agricultural area is formulated and is open to inspection. This apparently is a tentative proposal which is subject to the objection by any person or local authority. If any objection has been received within three months, the Commissioner is called upon to decide those objections and thereafter pass a final order in regard to the proposed demarcated area. Once the objections are decided and the Commissioner has arrived at the finding that a particular agricultural area in the urban area is to be declared as a demarcated area he shall publish a notice in the gazette showing the demarcated area which has been finally decided to be a demarcated area for the place. Sub-section (3) of Section 5 thereafter provides for an appeal from the order of the Commissioner. The agricultural area was only to be declared to be vested in the State Government free from all encumbrances under Section 8 only after such an agricultural area has been finally declared to be demarcated area.

In the present case, there is no evidence led by the defendants that the suit land had been declared as a demarcated area and the suit area being declared to be such has vested with the State Government under Section 8 of the 1956 Act. The notification issued under Section 8 says that in exercise of powers under Section 8 of the 1956 Act, the Governor of U.P. declared that from 1-7-1963 all agricultural areas in the following urban areas (which admittedly fall within Haridwar Union, District Saharanpur) of the then State of U.P. which have been demarcated under Section 5 of the Act shall stand vested with the State of U.P., and as from that day onwards all such agricultural areas shall stand transferred to, and vested, except as provided in the 1956 Act, in the State free from all encumbrances. It is clear from this notification under Section 8 that the land which has been demarcated under Section 5 in Haridwar Union shall be vested in the State free from all encumbrances. Unless and until it is shown that the land in suit has been declared as a demarcated area or falls within the demarcated area, exercising the powers under Section 5, it cannot be said that it has been vested in the State by virtue of the Notification issued under Section 8 on 20-6-1963. By 20-6-1963 notification, it is only the demarcated area under Section 5 which has been vested in the State. That does not necessarily mean that the suit lands have been vested in the State. In the absence of proof, it cannot be said that the suit area is a demarcated area and thus vested in the State by issuance of the notification under Section 8 of the Act."

It is settled position in law that if the question regarding ouster of jurisdiction of a Court requires investigation of facts, then Executing Court cannot go into such a question as held by Hon'ble Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, reported in AIR 1970 SC 1475. Paragraph no. 7 of the said judgment is extracted below:

"7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction."

Similar view was expressed in the case of M/s Brakewel Automotive Components (India) Pvt. Ltd Vs P.R. Selvam Alagappan reported in (2017) 5 SCC 371. Para 20 to 22 of the said judgment are extracted below

"20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well to render the decree unexecutable.

As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.

Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman5 in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7)

"6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."

Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view."

In view of the aforesaid legal position, this Court finds no illegality or perversity whatsoever in the judgment and order passed by learned courts below, which may warrant interference under Article 227 of the Constitution of India. Accordingly, writ petition fails and is hereby dismissed. No order as to costs.

Since the suit was filed in the year 1960 and the decree sought to be executed was passed on 5.08.1982, therefore, learned executing court is directed to decide the execution case as early as possible, but not later than six months from the date of production of certified copy of this order.