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Mal Singh Bika Singh and ors. Vs. Mohinder Singh Mehar Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 168 of 1969
Judge
Reported inAIR1970P& H509
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantMal Singh Bika Singh and ors.
RespondentMohinder Singh Mehar Singh
Appellant Advocate B.S. Chawla, Adv.
Respondent Advocate B.S. Shant, Adv.
DispositionAppeal allowed
Cases ReferredRomanand v. Jai Ram
Excerpt:
.....shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1. this appeal raises a novel and interesting..........october, 1959 is clear and unambiguous. the plaintiff mohinder singh was to get possession of the suit land on payment of pre-emption money. when the application for execution was filed in 1966 it had become barred by time and in fact was dismissed as infructuous. on this reasoning the trial court decided both 3 and 4 in favour of the defendant-vendees. the trial judge, further held that the plaintiff not having got his decree executed within the statutory period of limitation, no fresh decision in respect of it could be claimed in another suit on the principle envisaged in section 47 of the code of civil procedure. the present suit, therefore, didnot lie, in the view of the trial judge, and was barred by the principle of res judicata. on the question of estoppel covered by issue no. 7,.....
Judgment:

Shamsher Bahadur, J.

1. This appeal raises a novel and interesting point in the law of pre-emption a question which has to be decided on first principles as there does not seem to be any direct authority on the point.

2. The property In dispute consists of agricultural land measuring 11 Bighas and 5 Biswas situated in village Jhurar of Muktsar Tehsil This parcel of land was sold by Mehar Singh to Mal Singh, the first appellant, and his brother Pala Singh, who is dead and is now represented by appellants Nos. 2 to 7, by a registered sale deed of 22nd of June, 1957, for Rs. 10,000/-. Two pre-emption suits were filed in respect of this sale, one by Mohinder Singh, respondent in this appeal, and the other by Punjab Singh. There was a compromise between the vendees and Mohinder Singh, who, according to them, was a mere figurehead and was put up by them as a pre-emptor to retain the land in their hands. and to keep out Punjab Singh from it. In the suit of Mohinder Singh, which was compromised on 8th of October, 1959, a decree was passed in his favour. Strangely enough, and this supports to some extent the contention of the vendees, Mohinder Singh never cared to take possession of the land for many years and the expla-nation given by him in the present suit filed for possession of this land by him against the vendees many years later was that he had been involved in a number of cases which had kept him in jail for intermittent periods. It is not disputed that the sum of Rs. 10,000/-, for which the suit was decreed in favour of Mohinder Singh had been paid by him but no effort was made to get possession of the land. An execution application was filed on the 23rd March, 1966, but it was dismissed on 10th of June, 1966 (Exhibit D-l) as infructuous (nakam). The present suit was filed by Mohinder Singh on 15th of October, 1966 and it ia founded on the old pre-emption decree passed in his favour as a compromise on 8th October, 1959. The principal question which was raised in the suit related to its maintainability after the statutory period of limitation had expired and the decision of the trial Court was adverse to the plaintiff's claim. The lower appellate Court, however, took a different view of the matter and decreed the suit of the plaintiff on 30th December, 1968. It is from the appellate decree of the District Judge. Ferozepore, that the vendees have come in appeal to this Court.

3. On the pleadings of the parties, the following issues were framed:--

1. Whether the decree dated 8th October, 1959, is collusive, without jurisdiction and is not binding upon the defendant?

2. Whether the present suit is maintainable in its present form?

3. Whether the suit is not maintainable in its present form as alleged in preliminary Para No. 3 of the written statement?

4. Whether the suit is within time?

5. Whether the plaintiff is entitled to get the possession of the land on the basis of decree dated 8th October, 1959?

6. Whether the suit is barred by res judicata?

7. Whether the plaintiff is estopped from filing the suit for his acts and conduct as alleged in preliminary Para No. 5 of the written statement?

8. Relief.

I have purposely mentioned the various questions in controversy on which the parties joined issue. The ground on which the judgment of the trial Court was reversed, to which I would advert shortly, does not form a part of the subject-matter of the issues or pleadings.

4. On the question of collusion, the finding of the trial Judge is in favour of Mohinder Singh respondent. Though there was evidence to show that the vendees themselves had provided Mohinder Singh with the zar panjam and also thebalance of Rs. 8000/-, the trial Court has not accepted this testimony and the matter being decided in favour of the plaintiff-respondent is no longer at large. On the second issue also the decision is in favour of the plaintiff-respondent. The decisions of the courts below on the thirdand fourth issues are of crucial importance. The decree in favour of Moninder Singh respondent was passed on 8th October, 1959. It should have been executed within three years. The order (Exhibit P-l) of 8th October, 1959 is clear and unambiguous. The plaintiff Mohinder Singh was to get possession of the suit land on payment of pre-emption money. When the application for execution was filed in 1966 it had become barred by time and in fact was dismissed as infructuous. On this reasoning the trial Court decided both 3 and 4 in favour of the defendant-vendees. The trial Judge, further held that the plaintiff not having got his decree executed within the statutory period of limitation, no fresh decision in respect of it could be claimed in another suit on the principle envisaged in Section 47 of the Code of Civil Procedure. The present suit, therefore, didnot lie, in the view of the trial Judge, and was barred by the principle of res judicata. On the question of estoppel covered by Issue No. 7, the decision was in favour of the plaintiff.

5. Under sub-section (1) of Section 47 of the Code of Civil Procedure:--

'All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not bv a separate suit.'

In a Bench decision of the Allahabad High Court of Sulaiman J. (later Chief Justice Sulaiman) and Gokul Prasad J. in Romanand v. Jai Ram, ILR 43 All 170 - (AIR 1921 All 369). the plaintiffs had obtained a decree in a suit ior pre-emption conditional on their paying Rs. 1,000/-within three months from the date of the decree. The money was paid, but for one reason or another, the plaintiffs did not get possession of the property either by process in execution, or by private arrangement. Eventually, a suit was brought by the plaintiffs on 25th April, 1917, for possession of the property awarded to them by the decree of 1905. The Bench found that the suit was barred by time under the principle of Section 47 of the Code of Civil Procedure. It was argued before the Allahabad Bench, on basis of an earlier decision of that Court, that it was always open to a decree-holder to bring a suit on the decree at any time within twelve years, notwithstanding that the decree had become incapable of execution by lapse oftime. This dictum. In the view of the Bench deciding the case in ILR 43 All 170 - (AIR 1921 All 369), would mean that suit after suit could be brought upon barred decrees. If this is correct law, it is a very alarming situation'. If the nature of the decree requires that it should be executed, a decree-holder cannot, after allowing the limitation period to lapse without issuing process of execution, seek by a fresh suit on the decree to obtain that which he should have sought for by execution. Towards the end, the Bench in the Allahabad case observed thus:--

'We have given our best consideration to the question before us and we are of opinion that, both on authority and on a correct interpretation of Section 47 of the Code of Civil Procedure, the present suit was not maintainable. Stripped of all unnecessary details, the relief claimed by the plaintiffs, in substance, amounts to asking for the fruits of a decree which they are unable to execute owing to lapse of time. The suit, in effect, does raise a question 'relating' to the execution, discharge or satisfaction of the former decree and cannot be determined by a separate suit.'

The analytical reasoning of the Bench,if I may respectfully say so, is unanswerable and is equally applicable to the facts of the present case. Though not in a preemption case, the same principle was set out bv a Division Bench of Leslie Jones and Dundas, JJ. in Harchand Singh, v. Narain Singh, 'AIR 1921 Lah 394. Here, a mortgagee had obtained a decree for possession and it was held that no further suit, for possession could be maintained unless it is shown that possession had been taken under the decree and the judgment-creditor had been subsequently dispossessed.

6. The learned District Judge, Ferozepore, while realising the force of the argument that the provisions of Section 47 of the Code of Civil Procedure would bar a subsequent suit on the same, cause of action, has sought to distinguish the decision of the Allahabad Bench in Ramanand's case, ILR 43 All 170 = (AIR 1921 All 369) on the ground that Mohinder Singh plaintiff could not get possession of the suit land as the shares of the khatas in respect of which the decree was granted in his favour on 8th October, 1959, were jointly owned. Now, for one matter, this plea had never been taken by the parties and no issue was framed. Relying on the observation of Achhru Ram J. in Dunj Chand v, Jagdev, AIR 1949 East Punj 243, that a decree for joint possession is more or less only of a declaratory nature, the co-sharers in possession not being liable to be ejected or dispossessed from any portion of the joint properly.The lower appellate court has reached the conclusion that a fresh suit could be maintained by Mohinder Singh within twelve years. Now, what Achhru Ram J. said in AIR 1949 East Punj 243, related to partition decrees between co-sharers. In the preamble to the order Exhibit P-l of 8th October, 1959, it is mentioned that the suit is for possession by pre-emption. In the plaint Exhibit P-A, pre-emption is sought in respect of khasra numbers mentioned therein. The shares are specified and if there was any difficulty, the preemptor should have taken proper steps to have the areas demarcated. To say now that possession could not be obtained because of this inherent imperfection is to plead a difficulty which was neither envisaged nor insurmountable. It has not been shown how the transference by the consolidation authorities of the land in lieu of the one which had been sold to the vendees was in any way fraudulent qua Mohinder Singh plaintiff. As I have already premised, the long period of inactivity of Mohinder Singh showed his ready acquiescence of the fait accompli in the shape of possession having been retained by the vendees. It may or may not establish collusion but the circumstances certainly support the position taken up by the appellant-vendees.

7. I regret to have to differ from the learned District Judge, whose judgments generally are held in high esteem. I would allow this appeal, set aside the judgment and decree of the lower appellate Court and restore that of the trial, Judge. There would be no order as to costs of this appeal.


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