Sant Ram vs Khem Chand

G.C. Mital, J. (Oral)

The history of this case is rather curious and an interesting one. To tackle the knotty problem, which has arisen in this case, few facts may be taken note of.

Khem Chand had a share in a joint holding. By lease deed dated 11.4.1969, he created lease in respect of his share for 99 years in favour of Sant Ram. Few months thereafter, by sale deed dated 16.6.1969, Khem Chand sold his share to Sant Ram.

Bijender son of Khem Chand filed a suit in the year 1982 to invoke the lease deed and the sale deed on the ground that both the alienations were bad under the custom and his father, who was made party, had no authority, much less legal necessity to make the alienations. While Sant Ram contested the suit, Khem Chand remained satisfied by being proceeded against ex parte.

After the trial, the trial Court came to the conclusion that the lease and the sale made in favour of Sant Ram were not proved to be illegal and that Sant Ram was in possession. All the remaining issues in the case were against the son of Khem Chand and in favour of Sant Ram, by judgment and decree dated 29.7.1985.

Simultaneously, there was another round of litigation by Khem Chand against Sant Ram in a suit for injunction, wherein he only disputed the genuineness of the lease deed without mentioning anything about the sale deed. The ultimate prayer in the suit was that he was in possession and Sant Ram was to be restrained from interfering in his possession. While the trial Court dismissed the suit in view of the stand taken by Bijender son of Khem Chand in the suit, referred to above, the lower appellate Court by judgment and decree dated 11.10.1985 decreed the suit for injunction to the extent that the possession of Khem Chand shall not be disturbed by use of force. The lower appellate Court did notice the pleas and the decision in the suit filed by Bijender son of Khem Chand but relied mainly on the fact that Sant Ram had not led any evidence to rebut the evidence produced by Khem Chand.

According to Shri I.K. Mehta, Senior Advocate, appearing for Khem Chand, both the judgments and decrees have become final and no appeal is pending in any Court.

After obtaining decree dated 11.10.1985, Khem Chand filed execution application saying that Sant Ram wanted to take forcible possession. Sant Ram contested the execution application and pleaded that he was in possession on the basis of lease deed and sale deed. He also relied upon the findings recorded in the suit filed by Bijender son of Khem Chand to the effect that he (Sant Ram) was in possession and therefore question of using force to interfere in possession of Khem Chand did not arise.

The Executing Court dismissed the objections and observed that since the judgmentdebtor has not come forward to make any statement that he will not interfere in possession of the decreeholder, it ordered attachment of the property of the judgmentdebtor, vide order dated 27.5.1989.

Against this order, revision has been directed before this Court.

Shri. I.K. Mehta, Advocate, has stated at the bar that there was another round of litigation between the parties under Section 145 of the Code of Criminal Procedure, which matter is pending consideration before this Court.

The facts stated above clearly show that there are two decrees between the parties which are at variance with each other. In the decree in which son of Khem Chand lost the litigation, both the parties in this revision and Khem Chand were the parties and it was held that Khem Chand had first created lease and then sold the land in dispute to Sant Ram and delivered possession thereof and the alienations were found to be good and were upheld. It was also found that Sant Ram was in possession of the property.

However, in the other case, the lower appellate Court did not find the lease to be bad. On the basis of undisputed statement of Kham Chand, it came to the conclusion that he was in possession and thus restrained Sant Ram not to use force in disturbing his possession.

The tangle created by these two decisions has persuaded me to go deep in matter because normally the Executing Court cannot go beyond the decree but on these peculiar facts in order to do substantial justice between the parties, there is no option, left with me but to find out the true facts and then to mould the relief on those found facts.

It appears that the Judge who decided the suit filed by Khan Chand took too technical view of the matter regarding the decree passed in the suit filed by son of Khem Chand and gave relief of Kham Chand because Sant Ram for one reason or the other led no evidence. God knows on whose advice he did that. May be that his lawyer thought that he was going to win the other case filed by the son of Khem Chand or that the suit of Khem Chand would be dismissed in view of findings recorded in suit filed by the son of Khem Chand.

Since Khem Chand is wanting to invoke the discretionary jurisdiction of the Court under Order 21 Rule 32 of the Code of Civil Procedure for attaching the property of the judgmentdebtor, the discretion is to be exercised with caution keeping in view the facts of the case.

In the suit filed by Khem Chand, he is silent about the sale made by him although he attacked the lease deed as fictitious document. Even the lease deed was not upset by the lower appellate Court in the suit as a fake document. Once the undisputed position is that Khem Chand first leased out, then sold the property to Sant Ram, the title therein vested in him (Sant Ram), and with title the possession of the open vacant land would normally be of the owner. Not only that, in the suit filed by son of Khem Chand a finding was recorded that Sant Ram was in possession on the basis of lease and sale. Keeping in view these facts, which are beyond dispute, the decree granted in favour of Khem Chand to the effect that Sant Ram should not use force assumes significance. Unless Khem Chand shows that Sant Ram is out of possession and wants to use force to disturb his (Khem Chand''s) possession, the provisions of Order 21 Rule 32 of the C.P.C. would not be invoked by Court.

It is categoric stand of Sant Ram that he does not want to dispossess Khem Chand much less to use force against him, rather his stand is, which is correct one, that he (Sant Ram) is in possession, and, therefore, question of use of force or dispossessing Khem Chand does not arise.

Under the circumstances, in such an extraordinary case, I am of the view that it was just and proper to exercise discretion under Order 21 Rule 32 of the C.P.C. to attach the property of Sant Ram.

As a result the revision is allowed, the order of the Executing Court is set aside and the execution application filed by Khem Chand is dismissed with clear directions that in future also he will not be entitled to come to Court to seek the same relief because he is not in possession and it is Sant Ram who is in possession as an owner.

Since the petitioner is also not free from blame for causing this difficult problem, there will be not order as to costs.