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Milkhi Ram and ors. Vs. Raghunandan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 235 of 1980
Judge
Reported inAIR1982HP87
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 49 - Order 21, Rules 15 and 35
AppellantMilkhi Ram and ors.
RespondentRaghunandan and ors.
Advocates: S.S. Kanwar, Adv.
DispositionRevision allowed
Excerpt:
.....or more person if interest of one of joint decree holder is transferred or assigned to the judgment debtors decree is extinguished to the extent of the interest so transferred or assigned in favour of judgment debtors - held, remaining ¾ decree is only executable. -..........no. 472.4. later, the respondeants took out execution of the decree and prayed that they be put in actual possession of the decretal land by demolition of the superstructure raised thereon by the petitioners. the executing court appointed a local commissioner in order to ascertain whether the petitioners were in actual possession of any portion of khasra no. 472 and the local commissioner after taking measurement on the spot made a report that an area measuring 1/2 sarshais of the decretal land only was under the possession, of the petitioners and on which some construction had been raised. the respondents-decree holders wanted actual possession of that area by demolition of the superstructure. the petitioners, however, raised an objection that since the decree did not giveany direction.....
Judgment:
ORDER

T.R. Handa, J.

1. This petition in revision filed under Section 115 of the Civil P. C. raises a simple but interesting question of law.

2. The facts giving rise to this petition do not appear to be in dispute and may be briefly sketched like this:

3. S/Shri Raghunandan, Purshotam Chand, Prakash Chand and Dewan Chand, respondents Nos. 1 to 4, were joint owners in equal shares of a piece of land measuring 3 kanals and 15 marlas comprised in Khasra No. 472 as per jamabandi for the year 1962-63 of Tika and Mauza Moodla Khas, Tehsil Kangra. In the year 1968 these respondents filed a civil suit against the present petitioners for possession of a small area measuring 3 sarshais only forming part of the aforesaid khasra No. 472 on the allegation that the petitioners had illegally encroached upon this much portion of khasra No. 472, a consent decree for possession in respect of the area of 3 sarshais forming part of Khasra No. 472 as claimed in the suit, was passed in favour of the respondents on 7-12-1968, though the contention of the petitioners was that they had not encroached upon any part of khasra No. 472.

4. Later, the respondeAnts took out execution of the decree and prayed that they be put in actual possession of the decretal land by demolition of the superstructure raised thereon by the petitioners. The executing court appointed a local commissioner in order to ascertain whether the petitioners were in actual possession of any portion of Khasra No. 472 and the local commissioner after taking measurement on the spot made a report that an area measuring 1/2 Sarshais of the decretal land only was under the possession, of the petitioners and on which some construction had been raised. The respondents-decree holders wanted actual possession of that area by demolition of the superstructure. The petitioners, however, raised an objection that since the decree did not giveany direction regarding demolition of the superstructure, the executing court had no jurisdiction to order demolition and to deliver possession of the land by demolishing the superstructure. This objection prevailed with the executing court, which vide its order dated 19-5-1975, dismissed the execution petition, holding that the decree was inexecutable since it gave no direction with respect to the demolition of the superstructure.

5. The respondents preferred an appeal against the order of the executing court which was heard by the Additional District Judge, Dharmasala. The learned Additional District Judge did not agree with the view of the executing court that the decree was in executable and after holding that the decree wag executable, he remanded the case to the executing court for executing the decree in accordance with law.

6. Here it may be pointed out that during the pendency of the appeal before the Additional District Judge, one of the respondents, namely, Dewan Chand, respondent No. 4, transferred his undivided 1/4th share in Khasra No. 472 of which the decretal land formed part, in favour of the present petitioners. Respondent No. 4 further filed an application in the Court of the Additional District Judge for bringing this fact to the notice of that Court. The learned Additional District Judge while commenting upon the effect of this transfer of his share by respondent No. 4 in favour of the petitioner, made certain observations in his judgment accepting the appeal. The material observations made by the learned Additional District Judge in this regard read :--

'At this stage this Court is not concerned with the fact as to in what mode the decree passed in favour of the appellants and respondent No. 4 could be executed, but the finding of the lower court that the decree had become in-executable in the present form is wrong.' After the remand, the petitioners moved an application before the executing court bringing to its notice the fact that one of the decree holders, namely, respondent No. 4, had transferred his share in Khasra No. 472 in their favour and praying that in view of this transfer, the remaining decree holders be delivered only symbolic possession and not actual possession since the petitioners had alsobecome co-sharers of the decretal land along with the other three decree holders, namely, respondents Nos. 1 to 3.

7. The executing court, however, vide the impugned order dated 28-10-1980, rejected the plea of the present petitioners and directed issue of warrant for actual possession by demolition of the superstructure against the petitioners. It is this order of the executing court against which the present revision petition has been filed.

8. The respondents in spite of service of notice, did not care to put in appAearance before this Court to oppose this petition which has, therefore, been heard ex parte.

9. The impugned order shows that the executing court gave no independent thought of its own to the proposition canvassed before it, namely, whether respondents Nos. 1 to 3 were still entitled to be put in actual possession in execution of the decree even though the 4th decree holder, namely, Dewan Chand, respondent No. 4, had transferred his undivided 1/4th share in the decretal land in favour of the judgment-debtors, that is, the present petitioners or in such eventuality, the respondents Nos. 1 to 3 were entitled to only symbolic possession. The learned executing court appears to have misdirected itself in appreciating and interpreting the observations made by the learned Additional District Judge in his order of remand, as holding that the remaining decree holders, that is, respondents Nos. 1 to 3, were entitled to actual possession. The Additional District Judge had in fact nowhere made any such observation while dealing with the effect of the transfer of his share in the decretal land by respondent No. 4 in favour of the petitioners. In fact, the learned Additional District Judge had specifically remarked that he was not at that stage concerned with the mode in which the decree was to be executed. He was only concerned with the proposition whether the decree had become inexecutable.

10. The question that falls for consideration in this case is whether in the light of the facts stated above, the respondents Nos. 1 to 3 can claim to be put in actual possession of the decretal land in execution of the decree which had been passed jointly in favour of all the four respondents. It is an established principle that where a decree for payment of money has been passedjointly in favour of two or more persons and the interest of one of the joint decree holders is transferred or assigned to the judgment-debtor, the decree is extinguished to the extent of the interest so transferred/assigned and the execution would then lie only to the extent of the remaining decree. The same principle, in my view, would apply where the decree for actual possession in respect of immovable property, is passed in favour of two or more persons jointly and the interest of one of the joint decree holders in the subject matter of the decree is transferred/assigned in favour of the judgment-debtors. There are certain natural consequences which follow when one of the joint decree holders assigns his interest in the subject matter of the decree in favour of the judgment-debtor and the executing court is bound to take all such consequences into consideration while executing the decree.

11. In the instant case, it is true that the decree was passed for actual possession. But then it had been passed jointly in favour of all the four respondents. Before the decree could be executed, however, one of the decree holders, namely, Dewan Chand, respondent No. 4, transferred his share in the decretal land in favour of the judgment-debtors, that is, the present petitioners. One of the essential consequences which would flow from this transfer/assignment of his share by respondent No. 4 in favour of the petitioners is that the decree to the extent of l/4th share of Dewan Chand, respondent No. 4, stands extinguished or satisfied. The remaining 3/4th part of the decree only is now executable and this 3/4th interest in the decree is represented by respondents 1 to 3. Another consequence of the aforesaid transfer/assignment made by respondent No. 4 in favour of the petitioners is that the petitioners have since improved their status and now they rank as co-sharers in the decretal land along with respondents Nos. 1 to 3. Respondents Nos. 1 to 3 would, therefore, be now taking out execution of the decree as against their co-sharers. In a case of his type where a co-sharer seeks possession of the joint land against another co-sharer, the only form of possession which is permissible is a symbolic possession since no co-sharer can claim actual possession of his undivided share as against another co-sharer.

12. This revision petition is accordingly accepted, the impugned order passed by the executing court is quashed and the executing court is directed to deliver symbolic possession of their 3/4th share in the decretal land to the respondents Nos. 1 to 3, decree holders, as against their claim for actual possession.


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