Gram Panchayat and Another vs Raj Niwas Gupta and Others

D.P. Sood, J.—Gram Panchayat, Chaitru, District Kangra through its Pradhan has filed the instant petition under Order 21, Rule 58, CPC raising objections to the attachment of the property mentioned in the proclamation of sale in the main execution petition on the ground that the entire property is not liable to attachment or sale and accordingly the warrants of attachment and sale be recalled.

The petition has been resisted and contested on the ground that the land in question has now vested in the State of Himachal Pradesh under the provisions of Himachal Pradesh Village Common Lands Act, 1974 and as such the Petitioners have no locus standi to file the objections. On merits, it is stated that the properties are standing on khasra numbers 536, 537, 543, 545 and 546 as per entries in Khata Khatauni No. 104-min/192-min and the same is liable to be sold as a permanent structure has been allowed to be raised thereupon and the same had been mortgaged with the decree-holder.

On the pleadings of the parties, this Court vide order dated October 12, 1988, framed the following issues:

Whether the Petitioners have the locus-standi to maintain the present objection petition?

Whether the property in question or any part thereof is not liable to attachment and sale in execution of the decree?

Relief.

The parties were direcied to adduce evidence by way of filling affidavits. The parties have complied with the direction.

I have heard the learned Counsel for the parties at length and have also gone through the record of the case. The arguments advanced by Mr. Vijay Thakur, learned Counsel for the objector to some extent appear to have substantial force and as such the petition is to be allowed partly.

The fact that at the material time, the Petitioners were the owners in possession of the land in question is not disputed Further that the parties entered into an agreement on March 19, 1981 consequent to which lease deed was executed and the land measuring 25 kanals was leased out on the payment of Rs. 25 per kanal per year by the objectors to M/s Eastern Cable Company through S/Shri Raj Niwas Gupta and A.K. Mahajan, judgment-debtors is also not controverted. Further fact that the aforesaid land was leased out to the aforesaid judgment-debtors for the purpose of setting up an industrial uait by the judgment-debtors as per the terms and conditions of the lease deed is also not disputed. Another admitted fact which emerges from the said deed is that in the initial stage the land in dispute was leased out for a period of 5 years only but during the said period, the pucca buildings for the industrial unit had been set up and this fact is also not at controversy between the parties to the instant lis. In the aforesaid circumstances, the issues require determination by this Court.

Issue No. 1.

No doubt, under the Himachal Pradesh Village Common Lands Act, 1974, the state of Himachal Pradesh has become the owner of the lands belonging to the Gram Panchayat. Yet at the material time, the Gram Panchayat concerned had leased out the land in dispute which fact was neither objected to by the State of Himachal Pradesh nor objection for setting up of the buildings in question was taken. The said building of the industrial (sic) the judgment-debtors is still in existence. This position has not at all been disputed by the decree-holder even during the course of arguments. The further fact that the said unit had been mortgaged with the decree-holder is also not disputed. Apart from it, the lease deed had not been challenged by the State Government even after its expiry. Thus, at this stage it could not be said that the Petitioners have no locus-standi to file the present objection petition. In any case, it is the bounden duty of this Court to see as to whether the judgment-debtors are or are not the owners of the property in dispute which is being put to sale. In the circumstances, issue No. 1 is decided accordingly.

Issue No. 2.

According to Clause 1 of the lease deed, the aforesaid lessees had been delivered possession of land measuring 25 kanals out of khasra No. 546, khata No. 104-min, khatauni No. 192-rain situate in Muhal Maned (Chetru) Tehsil and District Kangra, on a portion of which the judgment-debtors have set up a pucca building for carrying on their business besides sheds etc. Now perusal of the schedule of property detailed in the proclamation of sale Annexure PA shows that it refers to "all building, structures, sheds built and constructed in land situated in Khata No. 1104-min, khatauni No. 192-min, Khasra No. 546. Muhal Maned, Village Chetru, Tehsil and Distt. Kangra" and "lease-hold rights of judgment-debtor No. 1 in land measuring 3-87-70 Hectares comprised in Khata No. 104-min, Khatauni No. 192-min'', 218 and 225, Khasra Nos. 536, 537, 543, 545 and 546 situate in Muhal Maned. Village Chetru, Tehdl and Distt. Kangra, H.P." Comparing the aforesaid schedule of property with Clause (1) of the lease deed it is to be noted that apart from the buildings, structures, sheds, etc. constructed in a portion of Khasra No. 546 belonging to the Petitioners and now to the State of Himachal Pradesh the remaining land, has also been ordered to be sold. In fact, this property could not be included in the proclamation of sale.

At this stage, it would be pertinent to detail the principles laid down in Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and Others, it has been held that if a person allows another to build on his land in. furtherance of the purpose for which he had been granted licence, subject to any agreement to the contrary, he cannot turn round later on to revoke the licence. This principle is codified in Section 60(b) of the Basements Act, 1882. Moreover, conduct of the parties (in that case) has been such that equity will presume the existence of a condition of the licence by plain implication to show that licence was perpetual and irrevocable". On the analogy of the aforesaid principles, in the instant case too, the Petitioners'' conduct shows that they allowed the pucca building etc. to be constructed by the judgment-debtors on the land leased for the purpose of carrying on their business. In the circumstances, it can be inferred that the intention of the objectors to lease out the land in question was not for a temporary period but it was perpetual and irrevocable In other words, the judgment-debtors had the lease-hold rights on payment of the consideration agreed to between the parties that is to say the judgment-debtors had interest in the land so leased to them and that their interest is limited to that extent only and the building, structure etc. standing upon that portion is only liable to be sold. The other vacant area belonging to the objectors cannot be allowed to be sold in the instant execution. Accordingly, the schedule of property pertaining to land contained in other khasra numbers other than the portion of khasra No. 546 and included in the proclamation of sale is liable to be rectified. Issue No. 2 is decided accordingly.

Issue No. 3.

In view of the discussion made above, warrants of attachment and sale pertaining to property mentioned in khasra Nos. 536, 537, 543, 545 and other vacant portion of khasra No. 546 are ordered to be recalled. So far as the remaining land is concerned alongwith pucca building, structure etc. standing thereon, the warrants of attachment and sale shall continue in pursuance of order of this Court. The objection petition is allowed to this extent only.