1. In this execution second appeal by a defendant-judgment-debtor, it would be necessary to recite the facts that preceded the passing of the decree for joint possession of a vacant piece of land which is being executed by the respondent, decree-holders.
2. In the plaint filed by the decree-holder-respondents in 1956, the subject matter of the suit was described as a vacant piece of land, measuring 146 and odd square yards in area and situated opposite the Harijan Mohalla in the abadi of village Gias Pura. All the seventeen plaintiffs and Mallu appellant belong to that community. The suit was for the possession of the vacant site and it was averred in the plaint that the defendant-appellant, who was in possession, was wrongfully claiming ownership under some registered sale deeds dated 16/ 17-8-1954. The persons from whom he claimed to have purchased the site had also been impleaded as defendants. The averments in the plaint were that the plaintiff-respondents had become owners of the vacant site by adverse possession lasting over a period of more than 12 years and that their possession could not be illegally disturbed by the appellant and that his vendors had no valid title which they could pass on to him.
3. The trial Judge, found, after a critical examination of the oral evidence examined by the parties, that the appellant had failed to prove any ownership over the site in dispute which was a part of the shamilat deh and that the plaintiffs' possession over this land had been disturbed by the appellant about a year or two before the institution of the suit. The plaintiffs had also failed to prove any hostile or adverse possession for the requisite number of years but it was found that before the appellant had gone into possession of the vacant site, the plaintiffs had been using it for tethering of cattle and storage of manure and that they had erected some mangers (khurlis) over the land. By virtue of their possessory title, the plaintiffs were granted a decree for joint possession against the defendant-appellant. It was found that the plaintiffs could be granted this lesser relief even though they had claimed the right to go into exclusive possession of the site.
4. Mallu had filed an appeal which was allowed by the judgment dated 9th October, 1958, of Shri Des Raj Dhamija, Senior sub-Judge, Ludhiana. The suit filed by the respondents was dismissed with costs throughout. The reason given was that the plaintiffs could not be allowed to set up a case which was inconsistent with their pleadings and that the evidence examined by the plaintiffs, in so far as it went beyond the pleadings, was to be ignored. Reliance was placed on the Supreme Court ruling in M/s. Trojan and Co. v. Nagappa Chettiar, AIR 1953 SC 235, and on a Single Bench decision of this Court in Mansha Ram v. Tej Bhan, (1957) 59 Punj LR 372 = (AIR 1958 Punj 5). It was observed, inter alia, by the learned Senior Sub-Judge that there was a world of difference between a decree for exclusive possession and a decree for joint possession and that if the plaintiffs had based their case on possessory title alone, it would have been open to the defendant to show that he had also been using the site in a like manner as the plaintiffs.
5. The regular second appeal filed by the plaintiff-respondents was allowed by this Court on 12th May, 1967, and the judgment and decree of the trial Court were restored. The reason given was that the plaintiffs were found to have been in possession of the vacant site for about 17 years and had erected their khurlis and pegs for tethering cattle and that this transitory possession, even if it was of no consequence against the true owner, entitled the plaintiffs to stick on to the land and that the trial Court was not wrong in granting a decree for joint possession which was a lessor relief than the one claimed in the plaint.
6. It may, however, appear that after his appeal had been allowed on 9th October, 1958, by Shri Dhamija, Senior Sub-Judge, Mallu appellant had erected a house on the vacant site. The respondents' case was that the house had been erected after they had filed the regular second appeal while the appellant's case was that he had completed the structure during the interval of about three or four months that had intervened between the date of the acceptance of his first appeal and the date of filing of the regular second appeal by the respondents.
7. When the respondents applied for the execution of their decree for joint possession, the question naturally arose whether the executing Court could order the demolition of the house erected by the appellant during the interval between the two appellate judgments in the original proceedings. The Executing Court found, on the basis of evidence examined by the parties, that the appellant had erected the building after the decision of the regular second appeal. His objection that a decree for joint possession could only be executed in the mode prescribed by sub-rule (2) of Rule 35 of Order XXI of the Code of Civil Procedure was negatived by the Court and the respondent decree-holders were found entitled to delivery of possession of the vacant site by demolition of the superstructure in execution of this decree for joint possession. The appellant had been allowed a period of thirty days within which he could remove the superstructure. The said order of the Executing Court has been affirmed by the Lower Appellate Court. Reliance has been placed on a Single Bench decision of this Court in Narain Singh v. Imam Din, AIR 1934 Lah 978, which was a case arising out of proceedings for the execution of a decree for permanent injunction. No regard has been paid to the fact that there are two separate rules in Order XXI of the Code laying down different modes of execution of decrees for joint possession and decrees for permanent injunction. The doctrine of lis pendens enunciated in Section 52 of the Transfer of Property Act was also invoked and the controversy about the exact date or time of the erection of the building was found not to make any material difference to the application of this doctrine.
8. None of the rulings relied upon by the parties before me or in the Courts below is of any significant help in disposing of this execution second appeal. The appellant had relied on a Single Bench decision of the Rangoon High Court in Kauk Sike v. Ong Hock Sein, AIR 1927 Rang 82, where it was held that it is not, within the province of the Executing Court to order the judgment-debtor to dismantle a building on the land when the decree was silent with regard to the building and directed the delivery of possession of only the site underneath. It may be observed that the decree being executed in that case was for delivery of actual physical possession and the judgment-debtor had, therefore, been granted time to remove the superstructure. This ruling would have no application to cases where the decree is for delivery of joint possession and had been granted as a lesser relief when the more efficacious or substantial relief claimed, namely, delivery of actual physical possession had been expressly denied. The decree in the present case had been affirmed in the regular second appeal only on the ground that a lesser relief could be granted where a larger relief had been claimed. In the guise of a lesser relief, it is not open to the Executing Court to grant the decree-holder the greater relief which has been expressly denied during the original proceedings. The Executing Court may appear to be removing the limits placed on the enforcement of the lesser relief decreed in favour of the respondents. This enlargement of the lesser relief would amount to the grant of a relief which had been refused to the plaintiffs during the trial of the case or in any case to adding to what this Court had chosen to grant to the plaintiffs as an illusory relief on the basis of their inchoate possessory title. Moreover, the course adopted by the Courts below may seem to go against the express provisions in the Code with regard to the mode of execution of the decree actually granted in favour of the plaintiff-respondents.
9. The ruling in Narain Singh's case AIR 1934 Lah 978(supra), relied upon by the respondents and finding favour with the Lower Appellate Court, is also distinguishable. That was an execution case arising out of a decree for permanent injunction restraining the defendant from blocking or obstructing a passage. The mode of execution for such a decree is prescribed by Order XXI, Rule 32 of the Code. Sub-rule (5) of this rule authorises the Executing Court to direct that the act required to be done by the judgment-debtor may be authorised to be done, so far as practicable, by the decree-holder or some other person appointed by the Court at the cost of the judgment-debtor. The expenses incurred in securing compliance with the Court's injunction can also be recovered from the judgment-debtor as costs in the case. There is no such express provision in the Code authorising the Executing Court to secure the removal of any obstruction or superstructure in execution of a decree for joint possession. The plaintiffs could have taken advantage of the ratio of Narain Singh's case AIR 1934 Lah 978(supra) if they had filed an appeal against the judgment of the trial Court granting them a decree only for joint possession and denying them the substantial relief of actual physical possession which they had claimed. As they remained satisfied with the decree and did not agitate for the grant of a mandatory in junction calling upon the appellant to restore the land in its original condition so that all parties could continue to enjoy the vacant site as in the past, they had to rest content with the mode of execution prescribed by rules for the execution of the decree that they remained satisfied with. The Courts could easily have issued the mandate as the lesser relief but the respondents have themselves to blame if they failed to agitate the matter presumably because they felt that they had no hope of faring better in the litigation. They had claimed the substantial relief of corporeal possession but their possessory title was so inchoate or nebulous in character that they were found entitled only to the lesser relief of joint possession. The mode of enforcement of the relief granted is prescribed by sub-rule (2) and not by sub-rule (1) of Rule 35 of Order XXI of the Code of Civil Procedure. The Lower Appellate Court has given no satisfactory reasons for holding otherwise. The respondents had remained satisfied with the paper decree which entitled them to an illusory mode of delivery of possession in a symbolical manner by proclamations made by beat of drum or affixation etc. The erection of a building by the person in actual physical possession does not in any way hamper or obstruct the execution of the decree in the mode prescribed. The Courts cannot during execution proceedings enlarge the relief granted during the original proceedings by resorting to a more rigorous mode for the enforcement of the relief decreed than has been laid down by law. The Courts below have clearly tried to go behind the decree and even to have exercised appellate powers over the judgments given during the original proceedings. Only a person with a superior title can seek to throw out another. He cannot physically or bodily throw out a person with an equal or like title. The appellant as a member of the Harijan community had as much right to the joint use of the vacant site as the respondents. In exercise of these rights, he had managed to oust the respondents a year or two before the filing of the suit. This wrongful ouster of a person with an inchoate title was found to entitle the latter to a decree for joint possession only. The actual physical possession of anyone cannot be disturbed under such a decree and in case of partition, the appellant could be found entitled to retain possession of that part of the area which could fall to his share. The ordering of the demolition of the building over such an area would result in a miscarriage of justice and the question of demolition of the building on the facts and circumstances of the present case does not arise unless and until the respective shares of the parties could be demarcated in metes and bounds.
10. Another Single Bench decision relied upon by Shri Batta, the learned Counsel for the appellant, is in Pyari Churn Law v. Monmotha Nath Banerjee, (1951) 88 Cal LJ 27. This case is also distinguishable as there is no dispute with the proposition that a lessee cannot be ordered to remove a temporary structure erected by him in the demised premises until the lease has been lawfully determined or terminated.
11. Shri Jhanji, the learned counsel for the respondents, then relied upon the doctrine of lis pendens as enunciated in Section 52 of the Transfer of Property Act. It may be true that any act committed by the appellant during the pendency of the proceedings cannot affect the respondents' legal rights. The question would still arise as to how the injury to those rights has to be remedied. The finding of the executing Court is that the house was erected after the decision of the regular second appeal. It may, therefore, appear doubtful whether the appellant's act complained of by the respondents were committed pendente lite. I have not been referred to any provision of law or precedent which may seem to justify the Courts in ordering the removal of a structure or building in execution of a decree for joint possession. In the person case, the plaintiffs had been non-suited with regard to their claim for actual physical possession of the site in dispute.
12. I do not find it necessary at this stage to deal with Shri Jhanji's contention that the erection of the building, whether before or after the decision of the regular second appeal, will give the respondents a fresh cause of action for filing a suit for mandatory injunction or partition or possession etc. The appellant's erection of the building does not in any manner, improve upon the respondent's possessory title in the site in dispute and the substantial relief of corporeal possession, though claimed, has already been denied to them. How far the findings in this suit will operate as a bar because of the principles of res judicata or on any other ground will be for the Courts to decide if and when a second suit is instituted.
13. For reasons given above, I accept the appeal and set aside the orders of the Courts below. The decree for joint possession can only be executed in the mode prescribed by Order XXI, Rule 35(2) of the Code of Civil Procedure. It is left open to the respondents to pursue, if so advised, such other remedies as may be legally available to them. The parties are left to bear their own costs throughout.
14. Appeal allowed.