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Karnail Singh Vs. Ujjagar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 1830 of 1969
Judge
Reported inAIR1972P& H201
ActsCode of Civil Procedure (CPC), 1908 - Sections 47
AppellantKarnail Singh
RespondentUjjagar Singh and ors.
Cases ReferredIn Hukam Singh v. Hakumat Rai
Excerpt:
.....& 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. .....as the sale was not in respect of 46 kanals 14 marlas. the application was contested by the pre-emptor-decree-holder and on the pleadings of the parties the following two issues were framed:--(1) whether the application is maintainable after the execution application was dismissed? (2) whether the decree-holder had taken possession of the land in excess of the decree?the executing court found both these issues in favour of the vendees but only ordered the redelivery of possession of 7 kanals 2 marlas and made no mention in this order of 39 kanals 12 marlas. dissatisfied with the order of the executing court karnail singh filed an appeal and the vendees also filed cross-objections both of which were decided by the impugned order. the appeal of the pre-emptor-decree-holder was dismissed.....
Judgment:

1. This is a second appeal against the order of the Additional District Judge, Ferozepore, dated 21st July, 1969 whereby the order of the executing Court was modified and the judgment-debtor's application under Section 47 of the Civil P. C. was accepted.

2. The facts giving rise to this appeal are that one Nazar Singh had sold 30 Kanals 12 Marlas of land being one-eighth share of 316 Kanals 15 Marlas to Ujagar Singh, Bahadur Singh and Banta Singh, sons of Ashok Singh, who are the respondents in this Court. The land was situated in village Ferozeshah. Nazar Singh had also created a mortgage over this and some other land of his in favour of Budh Singh and Inder Singh. In all 46 kanals 14 marlas of land had been mortgaged. The vendees redeemed the mortgage and got into possession of 46 kanals 14 marlas of land as Rs.2573 had been left with them for payment to the mortgagee. The sale in favour of Ujagar Singh and his brothers was challenged by Karnail Singh, the son of Nazar Singh vendor, through a pre-emption suit in which a compromise decree was obtained by the plaintiff on 29th April 1968. According to the compromise, the plaintiff obtained a decree for 39 kanals 12 marlas being one-eighth share of 316 kanals 15 marlas against the vendees. In execution of this decree, vendor obtained actual possession of 46 kanals 12 marlas of land. The vendees-Ujagar Singh, Bahadur Singh and Banta Singh then filed an application under Section 47 of the Civil P. C. before the executing Court praying for the redelivery of possession to them. It was stated that the plaintiff had no concern with 7 kanals 2 marlas which they had redeemed from Budh Singh and Inder Singh.

It was also alleged that the plaintiff having got a decree for possession of one-eighth share of 316 kanals 15 marlas was entitled to actual possession of 39 kanals 12 marlas as the sale was not in respect of 46 kanals 14 marlas. The application was contested by the pre-emptor-decree-holder and on the pleadings of the parties the following two issues were framed:--

(1) Whether the application is maintainable after the execution application was dismissed?

(2) Whether the decree-holder had taken possession of the land in excess of the decree?

The Executing Court found both these issues in favour of the vendees but only ordered the redelivery of possession of 7 kanals 2 marlas and made no mention in this order of 39 kanals 12 marlas. Dissatisfied with the order of the executing Court Karnail Singh filed an appeal and the vendees also filed cross-objections both of which were decided by the impugned order. The appeal of the pre-emptor-decree-holder was dismissed while the cross-objections were accepted and the executing Court was ordered to redeliver the possession of the land to the judgment-debtors. It was further ordered that only symbolical possession would be delivered to the decree-holder.

3. Being aggrieved the decree-holder has come up in appeal to this Court.

4. The only argument that is canvassed before me is that the vendees having obtained actual possession of 46 kanals 14 marlas were liable to redeliver possession of this land to the decree-holder and in any case they could not retain possession of 39 kanals 12 marlas in respect of which the decree has been passed. On the other hand, the learned counsel for the respondents has urged that the executing Court could not travel beyond the decree and as the decree was only for one-eighth share of 316 kanals 15 marlas the decree-holder could not obtain possession of specific khasra numbers even though the vendees had obtained possession thereof after the sale. It was also pointed out that there was no evidence on the record to show that the vendees had obtained possession of specific khasra numbers measuring 39 kanals 12 marlas as a result of the sale and this being the position the pre-emptor could not obtain these khasra numbers from them as he had only obtained decree for one-eighth share of the total land measuring 316 kanals 15 marlas.

5. In order to appreciate the rival contentions of the parties it will have to be seen as to what rights accrue to the pre-emptor on his obtaining the decree. A successful pre-emptor does not get a right of purchase from the vendee or even from the vendor as if a new contract of sale had come into being. He has only got a right to be substituted for the vendee in the original sale-deed. The successful pre-emptor in no case becomes a representative of vendee and does not claim under the original vendee. The exercise of the right of pre-emption carries with it an obligation for the pre-emptor to take the entire bundle or rights and liabilities and also advantages and disadvantages pertaining to the original sale. In Hukam Singh v. Hakumat Rai, 69 Pun LR 743=(AIR 1968 Punj 110)(FB), it was observed by this Court that a successful pre-emptor on becoming owner of the pre-empted property merely gets substituted for the vendee in the original bargain of sale and his predecessor-in-interest is the original vendor and not the vendee. It was further observed that the vendee's name would be rubbed out and the pre-emptor's name would be inserted in its place in the sale deed and no other change would be made. Having regard to the nature of the pre-emption decree obtained by the appellant which was only for possession of one eighth share of 316 kanals 15 marlas measuring 39 kanals 12 marlas, the successful pre-emptor can only get possession of the land regarding which the decree was passed and in respect of which the sale was pre-empted. If in any manner the vendee has come into possession of actual khasra numbers the pre-emptor cannot get possession thereof in execution of the decree which he has obtained, the decree not being for specific khasra numbers. In this respect it may also be mentioned that the argument of the respondents that there was no evidence on the record from which it could be inferred that the vendees had taken actual possession of 39 kanals 12 marlas as a result of the sale in their favour is also plausible and cannot be brushed aside.

6. For the reasons stated above, I find no merit in this appeal and consequently dismiss it. There will, however, be no order as to costs.

7. Appeal dismissed.


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