Gursewak Singh vs Harnam Singh

J.V. Gupta, J.

This revision petition is directed against the order of the executing Court dated March 17, 1987, whereby the objectionpetition filed on behalf of the judgmentdebtors was accepted and the decreeholders were only given symbolical possession whereas they were entitled to the actual physical possession, as per the terms of the decree sought to be executed.

The plaintiffs filed the suit on December 1, 1969, for possession of the suit land which was decided on November 7, 1974. Ultimately, the said decree of the trial Court was maintained up to the High Court in Regular Second Appeal No. 177 of 1978, which was decided on May 4, 1984. The decreeholders filed the execution application for possession of 88 bighas 12 biswas and 11 biswansis (266 bighas kham) on the basis of the said decree in their favour. The judgmentdebtors filed objections setting up the claim that they were in possession of the land as the lessees on the basis of the two lease deeds dated August 14, 1984 and April 25, 1985, Exhibits O. 1 and O. 2, respectively from Shrimati Rajwant Kaur alias Amar Kaur, one of the copowers of the land and, therefore, physical possession could not be ordered to be delivered to the decreeholders. The said objectionpetition was contested by the decreeholders. It was denied that Shrimati Rajwant Kaur executed any lease deed in their favour as alleged. Moreover, the said Rajwant Kaur was not one of the decreeholders and, therefore, she could not executed any lease deed in their favour of the judgmentdebtors. It was specifically pleaded that the alleged lease deeds were forged and fabricated and thus false documents. After framing the necessary issues and allowing the parties to lead evidence, the executing court found that the execution of the lease deeds, Exhibits O. 1 and O.2, was proved and that they were not forged ones as alleged by the decreeholders. The same were executed by one of the cosharers Shrimati Rajwant Kaur and, thus, she having executed the leasedeeds, the judgmentdebtors could not be dispossessed to deliver physical possession to the decreeholders. Dissatisfied with the same, the decreeholders have filed this revision petition in this Court.

The learned counsel for the petitioners submitted that the execution application was filed on July 16, 1984. First objections were filed on November 24, 1984 by the judgmentdebtors. Therein the plea of the lease deed dated August 14, 1984, was never taken. According to the learned counsel, if this lease deed would have been there at that time, the plea to that effect could be taken in the objection petition. The second objections were filed on January 30, 1985, in which, for the first time, the lease deed dated August 14, 1984, was pleaded. However, in that lease deed three khasra Nos. 147, 148 and 138 were not included. The decreeholders claimed possession at least of those khasra Nos. Thereafter, third objection petition was filed on April 26, 1985, in which the judgmentdebtors set up another lease deed of those three khasra Nos. in their favour dated April 26, 1985. The learned counsel also pointed out that while Shrimats Rajwant Kaur was in the witnessbox, the judgmentdebtors themselves suggested that she was not the Rajwant Kaur who had expected the pleas deed and that she was some other lady. According to learned counsel, the said another lay was never produced by the judgmentdebtors who according to their suggestions had executed the lease in their favour. He also submitted that the executing Court had itself observed in the impugned order as follows :

"Thus, in the absence of denial of signatures of Rajwant Kaur on Exhibits O. 1 and O. 2 agreements to lease from the side of DHWs who could identify those signatures, I have to fall back upon the evidence of scribe and attesting witnesses and objectors, who deposed that Rajwant Kaur had signed on Exhibits O. 1 and O. 2 in their presence".

According to the learned counsel, it is a complete misreading the statement of the said Rajwant Kaur. She had denied that any lease deed was executed by her. According to the learned counsel from the entire evidence, it was amply proved on the record that both the said leasedeeds were fabricated and false documents. The learned counsel also referred to Order XXI rule 2, Code of Civil Procedure (hereinafter referred to as the Code), to contend that the judgmentdebtors never informed the Court of any such adjustment within a period of thirty days as contemplated under Article 125 of the Limitation Act, and, therefore, they could not be allowed to take this plea for the first time in their objection petitions. Shrimati Rajwant Kaur was not one of the decreeholders and, thus, was not competent to execute any lease deed. Even if she was a cosharer, she was entitled to seek partition of her share from the plaintiffsdecreeholders, but could not deprive them of the possession under the decree against the defendants. If was further argued by the leaned counsel for the petitioners that the lease deeds purport to be perpetual ones and, therefore, they were inadmissible being unregistered.

On the other hand, the learned counsel for the judgmentdebtors submitted that Sharmati Rajwant Kaur being one of the cosharers, though she may not be a decreeholder, as such, was competent to execute the lease deeds and once the lease deeds were executed, the judgmentdebtors could not be dispossessed from the suit land. According to the learned counsel, since lease deeds were written on stamppapers, it could not be successfully argued on behalf of the decreeholders that the setting up of the same in the objection petitions was of any consequence.

I have heard the learned counsel for the parties and have also gone through the record. After considering the same, I am of the view that the learned executing Court had gone out of its way to help the judgmentdebtors. From the evidence it is amply proved that both the leasedeeds are forged and fabricated documents. The plaintiffs filed the suit in the year 1969 and the same was contested up to the High Court when it was finally decided in the year 1984. The defendants set up the plea that they were the tenants on the suit land which was negatived by the two Courts below and it was found that they were the trespassers and were liable to be dispossessed therefrom. With this background, there was absolutely no reason for the decreeholders to execute any leasedeed in favour of the judgmentdebtors, as alleged by them. Moreover, Shrimati Rajwant Kaur was never a plaintiff. She was added as a proforma defendant as she happened to be one of the cosharers. No decree as such was passed in her favour. That being so, she was not competent to execute any leasedeed in favour of the judgmentdebtors without getting the property partitioned. According to the executing Court since Rajwant Kaur, who had appeared as SHW5, did not deny her signatures on the lease deed. This is wholly misreading her statement as such. Earlier, she had filed an affidavit dated February 20, 1985, Exhibit DHW 2A, wherein she had categorically denied the execution of any leasedeed. Even in her statement in the Court she categorically stated that she had not given the land of village Gurthri on batai to any one. She did not know Geja Singh, Ginder Singh and others, nor she had executed any document in their favour or anybody regarding the land of village Gurthri for leasing out the property in dispute. In view of the said statement, the executing Court wrongly observed that she had not denied her signatures on the leasedeeds. It was on that account that the executing Court relied upon the statement of the attesting witnesses and the judgmentdebtors.

When Shrimati Rajwant Kaur appeared in the witnessbox, a suggestion was put to her that she was not the real lady called Rajwant Kaur and that she was some other lady. This question clearly suggests that according to the judgmentdebtors, the lady who had appeared as DHW5 was not the Rajwant Kaur who was alleged to have executed the lease deeds in their favour. They nerve produced the lady who according to them was the real Rajwant Kaur and had executed the lease deeds in their favour. Otherwise, there was no occasion for them to make such a suggestion to her while she was deposing in the witnessbox. Apart from that, Sham Lal, O.W. 9, who was the scribe of the document, Exhibit O. 1 in his crossexamination stated

"It is correct that entry No. 190 is at the end of page and it is correct that this entry is in thin and closer lines than those other mentioned above on that entry and later entries to it are also in open lines. I did not know Rajwant Kaur personally, nor I have seen her prior to that or thereafter".

He further stated :

"Rajwant Kaur was not accompanying any one else except these persons".

Gobind Singh O.W. 11, was examined as one of the attesting witnesses. He admitted in his crossexamination that he was a brother of the judgmentdebtor, Bachan Singh. The other attesting witness of the deed was not examined. Similarly, the scribe of Exhibit O.2 was not produced. Chajju Singh O.W. 10, one of the attesting witness was the brother of one of the judgmentdebtors Bachan Singh. Thus, the entire evidence produced by the judgmentdebtors did not inspire confidence at all and could not be believed. The whole approach of the executing Court in this behalf was perverse, wrong, illegal and misconceived.

Under Order XXI rule 2 of the Code (after amendment), it has been provided that if any decree of any kind is otherwise adjusted in whole or part to the satisfaction of the decreeholder, the decreeholder shall certify such adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly. It further provides that the judgmentdebtor may also inform the Court of such adjustment and apply to the Court to issue a notice to the decreeholder to show cause why such adjustment should not be recorded and certified. Admittedly, no such adjustment was got certified either by the decreeholders or by the judgmentdebtors as provided therein. The limitation for such a notice to the exacuting Court is 30 days under Article 125 of the Limitation Act, which provides that to record an adjustment or satisfaction of the decree the period provided is 30 days when the adjustment is made. Admittedly no such adjustment was ever got made either by the decreeholders or by the judgmentdebtors. This further proves the falsity and the fabrication of the leasedeeds. The view of the executing Court that since Exhibits O. 1 and O. 2 had been scribed on a stamppaper and by a regular petitionwriter, which could not be created later on giving earlier dates, was wholly wrong and illconceived. Simply because the said documents were written on stamppapers and scribed by the petitionwriters did not mean that the same could not be forged. As a matter of fact, there was no explanation why in the objection petition filed on November 24, 1984, the alleged leasedeed dated August 14, 1984 was not pleaded.

Thus, taking into consideration all the facts and circumstances of the case and from the evidence on the record, it is amply proved that both the leasedeeds Exhibits O. 1 and O. 2 were false and fabricated documents. Shrimati Rajwant Kaur never executed any such documents and the judgmentdebtors in order to deprive the decreeholders of their land forged the said documents.

Consequently, this revision petition succeeds and is allowed. The impugned order of the executing court is set aside with costs. Costs assessed at Rs. 3000/. It is further directed that the executing court will order the prosecution for fabricating false documents by the judgmentdebtors. The parties have been directed to appear in the executing court on January, 23, 1989. The records of the case be sent back forthwith. The executing court will proceed with the execution proceeding expeditiosaly.