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Gokal Chand Vs. Sundar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H282
AppellantGokal Chand
RespondentSundar Singh and anr.
Excerpt:
.....the land being let in farm to the plaintiff for a period of 4$ years. under the order of the executing court, the plaintiff is entitled to enjoy the usufruct of the suit land for a period of 4frac12;.....having long since expired the plaintiff had no subsisting right to be put in possession of the suit land.2. the learned trial judge repelled both these pleas and decreed the plaintiff's claim. on appeal, the learned district judge took a contrary view and holding that section 47, civil p.c. barred the suit and further that the period of the lease having already expired the plaintiff had no subsisting right to be put in possession of the suit land, he set aside the decree passed by the learned trial judge in the plaintiff's favour and dismissed the suit. the plaintiff has come up in second appeal to this court.3. after hearing the learned counsel for the parties, i am clearly of the opinion that the judgment of the learned district judge cannot be sustained and that the appeal must.....
Judgment:

Achhru Ram, J.

1. Gokal Chand appellant had a decree against the estate of Natha Singh in the hands of his sons, Sundar Singh, Santa Singh and Banta Singh. He sued out execution of the decree and prayed for the decretal amount being realised by the attachment and letting in farm of the land of the aforesaid Natha Singh in the hands of his sons. By means of an order dated 17th November 1933, the executing Court, accepting the report of the Collector, let 23 kanala and 9 marlas of land in farm for a period of ii years to the decree-holder himself in full and complete satisfaction of the decretal debt. The decree-holder was put in symbolical possession by the executing Court but in spite of his repeated efforts did not succeed in getting actual possession. An application made by him to the executing Court for the actual possession of the land let in farm having been dismissed on 15th January 1944 as barred by limitation under Article 181, Limitation Act, the appellant Gokal Chand brought a suit for possession of the land covered by the order of the executing Court dated 17th November 1933 against Sundar Singh, Batna Singh and Satna Singh. The suit was resisted inter alia on the pleas that it was barred by Section 47, Civil P.C. and that the period of the lease having long since expired the plaintiff had no subsisting right to be put in possession of the suit land.

2. The learned trial Judge repelled both these pleas and decreed the plaintiff's claim. On appeal, the learned District Judge took a contrary view and holding that Section 47, Civil P.C. barred the suit and further that the period of the lease having already expired the plaintiff had no subsisting right to be put in possession of the suit land, he set aside the decree passed by the learned trial Judge in the plaintiff's favour and dismissed the suit. The plaintiff has come up in second appeal to this Court.

3. After hearing the learned Counsel for the parties, I am clearly of the opinion that the judgment of the learned District Judge cannot be sustained and that the appeal must succeed.

4. I cannot see how Section 47, Civil P.C. can possibly be pleaded in bar of this suit. The matter that arises between the parties is not one relating to the execution, discharge or satisfaction of the decree. The decree was in fact satisfied, as soon as the Court made an order for the land being let in farm to the plaintiff for a period of 4$ years. The execution proceedings were consigned to the record room after recording satisfaction of the decree. The present suit of the [plaintiff is based on the title acquired by him in pursuance of the order sanctioning the lease of the suit land for the period of 4 years in his favour. The cause of action for the suit is constituted by the defendants' wrongful withhold-tog of the possession of the land from the plaintiff.

5. The order sanctioning the lease in the plaintiff's favour did not specify the date from which the lease was to take effect. In the absence of any indication to the contrary in the order itself it must be taken that the lease was to take effect from the date on which the lessee got actual possession of the land covered by the 'lease. The lease could not be deemed to have become effective at any time before that. Under the order of the executing Court, the plaintiff is entitled to enjoy the usufruct of the suit land for a period of 4frac12; years and if for a much longer period after the date, on which the order sanctioning the lease in his favour was passed, the Judgment-debtors themselves wilfully withheld possession from him the latter cannot be permit-led to put a premium on his own dishonest act.

6. For the reasons given above, I accept this appeal and setting aside the judgment and the decree of the learned District Judge restore that of the learned trial Judge. The appellant shall have his costs in all the Courts.


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