On purchase of shares from any other co-sharers make person co-sharer over the same property: High Court of Shimla
Objectors have purchased shares in the suit land from other co-sharers and, therefore, have themselves become co-shares over the suit land. This honorable judgement was passed by High Court of Shimla in the case of Sh. Parveen Kumar &amp; ors. Versus Smt. Fikki &amp; ors. [CMPMO No. 342 of 2014] by Ms. Justice Jyotsna Rewal Dua, Judge. The objections preferred by the judgment debtors to the execution petition filed by the decree holders had been partly allowed by the learned Executing Court vide order, which is impugned herein by the decree holders. In terms of this order, instead of actual possession, only symbolic possession of the suit land has been ordered to be delivered to the decree holders. A civil suit was instituted, the plaintiffs asserted themselves to be owners along with other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 83, Khasra No. 77, measuring 0-00-43 HM, situated in village Tutwan, Sub Tehsil Fatehpur, District Kangra, on the basis of jamabandi for the year 1989-90. The allegations in the plaint were that the defendants were neither the owners nor the tenants over the suit land. Yet they had forcibly taken over the possession of the suit land in an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. decreed the suit of the plaintiffs against the defendants for vacant possession of suit land. The legal heirs of original plaintiff filed an execution petition under Order 21 Rule 11 of Code of Civil Procedure for executing the aforesaid decree. The prayer in the execution petition was for putting the plaintiffs/decree holders into actual possession of the suit land after demarcation of boundaries. After purchase of shares in the suit land, the judgment debtors had become joint owners in possession with the decree holders. The share of the judgment debtors/joint owners is not specified on a particular portion of land in question. Therefore, till the time the land is partitioned, every inch of it has to be construed as joint between the parties-joint owners.
 Hig h C o urt of H.P on 22 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No. 3414Reserved on: 19.4.2021 Decided on: 22.04.2021Sh. Parveen Kumar & ors........Petitioners.VersusSmt. Fikki & ors. .....Respondents.CoramMs. Justice Jyotsna Rewal Dua Judge. Whether approved for reporting 1 For the petitioners: Mr. Anuj Gupta Advocate. For the respondents:Respondents No. 1 to 5 exparte. Name of respondent No. 6 deleted. Jyotsna Rewal Dua Judge The objections preferred by the judgment debtors tothe execution petition filed by the decree holders have beenpartly allowed by the learned Executing Court vide order dated29.8.2014 which is impugned herein by the decree holders. Interms of this order instead of actual possession only symbolicpossession of the suit land has been ordered to be delivered tothe decree holders. 2(i)A civil suit was instituted by S Shri Rania and ChuniLal both sons of Shri Litru on 29.12.1995. The plaintiffs asserted1 Whether the reporters of the local papers may be allowed to see theJudgment Hig h C o urt of H.P on 22 04 HCHP 2themselves to be owners alongwith other co sharers of the suitland comprised in Khata No. 39 min Khatauni No. 83 Khasra No.77 measuring 0 00 43 HM situated in village Tutwan Sub TehsilFatehpur District Kangra on the basis of jamabandi for the year1989 90. The allegations in the plaint were that the defendantswere neither the owners nor the tenants over the suit land. Yetthey had forcibly taken over the possession of the suit land inJanuary 1988 an illegal and unlawful manner. Therefore decreefor vacant possession of the suit land was prayed for. Learnedtrial Court on 2.11.1998 decreed the suit of the plaintiffs againstthe defendants for vacant possession of suit land. The operativepart of the judgment reads as under:“ .suit of the plaintiffs is hereby decreedagainst the defendants for vacant possession of theland comprised in Khata No. 39 min Khatauni No. 83 Khasra No. 77 measuring 0 00 53 HM situated invillage Tutwan Sub Tehsil Fatehpur Distt. Kangra H.P. asper jamabandi for the year 1989 90.”2(ii)On 11.8.2006 the legal heirs of original plaintiff No. 1and Shri Chuni Lal original plaintiff No. 2filedan execution petition under Order 21 Rule 11 of Code of CivilProcedure for executing the aforesaid decree dated 2.11.1998.The execution was preferred inter alia against the legal heirs ofDulo Chunku as well as against legal heirs of Dhannuinto actualpossession of the suit land after demarcation of boundaries. Hig h C o urt of H.P on 22 04 HCHP 32(iii)On 12.1.2007 objections on behalf of judgmentdebtors were preferred pleading therein that the decree hadbecome inexecutable for the reasons: a)The legal heirs of Duloto1(d)] had purchased 1 16th share in the suit land on 27.5.1999.b)Judgment debtor Bhola Ram son of Shri Dulo had alsopurchased a separate share in the suit land. c)After purchase of shares in the suit land thejudgment debtors had become joint owners in possession withthe decree holders. The share of the judgment debtors jointowners is not specified on a particular portion of land in question.Therefore till the time the land is partitioned every inch of it hasto be construed as joint between the parties joint owners.d)The decree holdersin suchcircumstances are not entitled for actual possession of the suitland.The reply to the objections was filed by the decreeholders present petitioners denying the purchase of suit land bythe judgment debtors. It was also submitted that even after thepurchase of a portion of the suit land by the judgment debtors the decree could still be executed. 2(iv)Issues were framed in the objection petition on28.12.2007. The parties led evidence in support of theirrespective contentions. After considering the pleadings and the Hig h C o urt of H.P on 22 04 HCHP 4evidence adduced by the parties the learned executing courtheld that the Dulo had purchased the suit land on 27.5.1999 tothe extent of 1 16th share and Bhola Ram had also purchasedseparate share in the suit land. Therefore the judgment debtorshad become co sharers of the suit land. On becoming co sharersof the suit land the judgment debtors cannot be ousted fromtheir possession of the suit land and for this reason actualpossession of the suit land was not ordered to be delivered to thedecree holders. Instead of warrant of actual possession warrantof symbolic possession was ordered to be issued in favour of thedecree holders.Aggrieved against this order passed by the learnedexecuting court on 29.8.2014 the decree holders have preferredinstant petition under Article 227 of the Constitution of India.3.Heard learned counsel for the petitioners and gonethrough the record.4.Learned counsel for the petitioners decree holderssubmitted that learned Executing Court erred in not deliveringactual possession of the suit land in favour of the decree holders.Learned counsel contended that there was no document onrecord to show that the judgment debtors had purchased anyportion of land in the suit land. He further submitted that in anycase even if it is to be presumed that the part of suit land wassold to the judgment debtors then also it was sold much after Hig h C o urt of H.P on 22 04 HCHP 5passing of the judgment and decree sought to be executed. Theintention of the judgment debtors was only to deprive the decreeholders from getting the possession of the suit land. In suchcircumstances the objections filed by the judgment debtors werenot legally maintainable and were liable to be rejected as theexecuting court could not have gone behind the decree.4.On going through the record impugned order cannotbe said to be suffering from any infirmity. Following aspectsbecome material in this regard: 4(i)The objections preferred on behalf of the judgmentdebtors were in respect to the inexecutability of the decree dated2.11.1998 vide which the plaintiffs were held to be the owners ofthe suit land alongwith other co sharers. It was held in thejudgment and decree that the defendants without any rights orauthority had forcibly taken the possession of the suit land fromthe plaintiffs. Accordingly the suit filed by the plaintiffs wasdecreed against the defendants for vacant possession of the suitland comprised Khata in No. 39 min Khatauni No. 83 Khasra No.77 measuring 0 00 43HM situated in village Tutwan Sub TehsilFatehpur District Kangra as per jamabandi for the year 1989 90.4(ii)Petitioners preferred execution petition inter aliaimpleading legal heirs of Dulo as judgment debtors. In responseto the execution petition filed in the year 2006 the judgmentdebtors by submitting that they had purchased shares in the suit Hig h C o urt of H.P on 22 04 HCHP 6land from other cosharers objected to the executability of thedecree. During evidence they placed on record jamabandi forthe year 1999 2000and jamabandi for the year 2004 2005wherein it was recorded that Duloto 1(d) had purchased 30 out of 480shares in the suit land and the judgment debtor Bhola Ram hadalso purchased 45 out of 480 shares in the suit land. Sale deedsthough have not been placed on record however the decreeholders have not denied the revenue documents placed onrecord by the judgment debtors. In fact no evidence in thisregard whatsoever has been led by the plaintiffs decree holdersto rebut the revenue record reflecting purchase of shares in thesuit land by the objectors judgment debtors. Thus from theperusal of the evidence adduced by the parties in the objectionpetition it is evident that subsequent to the passing of thedecree the objectors have purchased shares in the suit landfrom other cosharers and therefore have themselves becomeco shares over the suit land.4(iii)There is no dispute qua the settled legal position thatthe executing court cannot go behind the decree and has toexecute it as its stands. However in terms of Section 47 of Codeof Civil Procedure the executing court is required to look into thequestions relating to the execution discharge or satisfaction ofthe decree. Such questions are to be adjudicated by the Hig h C o urt of H.P on 22 04 HCHP 7executing court and not by a separate suit. Section 47 reads asunder:“47. Questions to be determined by the Court executingdecree.—(1) All questions arising between the parties to thesuit in which the decree was passed or their representatives and relating to the execution discharge or satisfaction of thedecree shall be determined by the Court executing thedecree and not by a separate suit.(3) Where a question arises as to whether any person is or isnot the representative of a party such question shall for thepurposes of this section be determined by the Court.[Explanation 1.—For the purposes of this section a plaintiffwhose suit has been dismissed and a defendant againstwhom a suit has been dismissed are parties to the suit.Explanation II—(a) For the purposes of this section apurchaser of property at a sale in execution of a decree shallbe deemed to be a party to the suit in which the decree ispassed and(b) all questions relating to the delivery of possession of suchproperty to such purchaser or his representative shall bedeemed to be questions relating to the execution dischargeor satisfaction of the decree within the meaning of thissection.]”4(iv)(2010) 14 SCC 384 title Arun Lal and othersversus Union of India and others was a case where decree forrecovery of possession by ejectment of defendants from abungalow was passed with a direction to remove barracksconstructed on part of compound. Union of India in terms of aresumption notice took over possession of land appurtenant tothe bungalow. The notice was not challenged. In executionproceedings respondents filed objections under Section 47 CPCthat decree was rendered inexecutable to the extent of land Hig h C o urt of H.P on 22 04 HCHP 8resumed under the resumption notice. The apex court upheldHigh Court’s verdict that possession of said land could not betaken away from Union of India for delivering to the decree holders since after resumption of property and takingpossession Union of India in exercise of its rights as paramounttitle holder was no longer holding the same as a tenant so as tobe answerable to petitioners as its landlords. Relevant para fromthe judgment is extracted hereinafter: “15. It is common ground that the land appurtenantto the bungalow had been utilised by the Union of India forconstruction of barracks. The entire extent of 2.792 acres ofof land including the one under the barracks could therefore be taken over pursuant to the resumption order which wasnever assailed and had thereby attained finality. Such beingthe position the High Court was right in holding thatpossession of the above extent of land could not be takenaway from the Union of India for delivery to the decree holders. That is because after the resumption of the propertyand the taking over of the possession by the Union of India inexercise of its rights as the paramount title holder it was nolonger holding the same as a tenant so as to be answerable tothe petitioners as its landlords. The Union of India was on thecontrary holding the resumed property in its own right and ina capacity that was different from the one in which it hadsuffered the decree for eviction. This was a significant changein the circumstances in which the decree was passedrendering it inexecutable.”Jagdish Dutt and another v. Dharam Pal andothers reported in AIR 1999 Supreme Court 1694 was a casewhere a decree for actual possession of immovable property waspassed. One of the coparceners assigned transferred his interestin the decree in favour of the judgment debtors. It was held that Hig h C o urt of H.P on 22 04 HCHP 9the decree in such situation would get extinguished to the extentof the interest so transferred and further that execution petitionwould lie only to the extent of remaining part of the decree. Itwas also observed that where the interest of coparceners isundefined indeterminate and cannot be specifically stated to bein respect of any one portion of the property then a decree foractual possession of immovable property cannot be given effectto before ascertaining the rights of the parties by an appropriatedecree in a partition suit. The relevant para of the judgmentreads as under:“7.When a decree is passed in favour of a joint familythe same has to be treated as a decree in favour of ail the membersof the joint family in which event it becomes a joint decree. Where ajoint decree for actual possession of immovable property is passedand one of the coparceners assigns or transfers his interest in thesubject matter of the decree in favour of the judgment debtor thedecree gets extinguished to the extent of the interest so assigned andexecution could lie only to the extent of remaining part of the decree.In case where the interest of the coparceners is undefined indeterminate and cannot be specifically stated to be in respect ofany one portion of the property a decree cannot be given effect tobefore ascertaining the rights of the parties by an appropriate decreein a partition suit. It is no doubt true that the purchaser of theundivided interest of a coparcener in an immovable property cannotclaim to be in joint possession of that property with all the othercoparceners. However in case where he is already in possession ofthe property unless the rights are appropriately ascertained hecannot be deprived of the possession thereof for a joint decree holdercan seek for execution of a decree in the whole and not in part of theproperty. A joint decree can be executed as a whole since it is notdivisible and it can be executed in part only where the share of thedecree holders are defined or those shares can be predicted or theshare is not in dispute. Otherwise the executing court cannot find outthe shares of the decree holders and dispute between joint decreeholders is foreign to the provisions of Section 47 CPC. Order XXI Rule15 CPC enables a joint decree holder to execute a decree in itsentirety but if whole of the decree cannot be executed this provisioncannot be of any avail. In that event also the decree holder will have Hig h C o urt of H.P on 22 04 HCHP 10to work out his rights in an appropriate suit for partition and obtainnecessary relief thereto. Various decisions cited by either side towhich we have referred to do not detract us from the principle statedby us as aforesaid. Therefore a detailed reference to them is notrequired.” The ratio of aforesaid judgments squarely applies tothe facts of the case. In the instant case the judgmentdebtors objectors have proved on record that they had becomeco sharers of the suit land subsequent to passing of the decreesought to be executed. The suit land is now jointly owned bythem alongwith various cosharers. In such situation theirpossession over the suit land cannot be treated as illegal and therefore they cannot be ousted from such possession. Thejudgment debtors objectors have purchased shares in the suitland from the other co sharers. Their possession of the suit landis now in a capacity different from the one in which they hadsuffered the decree for possession. In such circumstances learned trial court was justified in not issuing the warrant ofactual possession in favour of decree holders petitioners. For theforegoing reasons the petition lacks merit and is accordinglydismissed. Jyotsna Rewal Dua Judge 22nd April 2021 