Santokh Singh vs Amar Singh

G.C. Mittal, J.—On 30.12.1974, an order of ejectment was passed by the Rent Controller in favour of Santokh Singh landlord against Amar Singh tenant. The landlord took out execution. The tenant took various objections and the main objection was that he had delivered possession of the premises to the decree holder on 5.1.1975 in the presence of Avtar Singh brother of the landlord and the averment of the landlord, that when the bailiff went to deliver possession to him the tenant made protest, was wrong because the possession had already been delivered. Receipt Exhibit P 1 dated 5.1.1975 is produced on record by the tenant in support of the aforesaid objection. This receipt is not signed by Santokh Singh land-lard although it is signed by Avtar Singh as an attesting witness. Thereafter, the landlord took the plea that the tenant had delivered possession to Avtar Singh and not to him and, therefore, the warrants of arrest should be issued against the tenant as well as against Avtar Singh. To the execution, Avtar Singh filed objections on which a Local Commissioner was appointed By order dated 30.10.1981, the objections of Avtar Singh were rejected and it was held that the ejectment order had not been complied with as the tenant had not delivered possession to the landlord. It was further categorically held that the delivery of possession by the tenant to Avtar Singh was neither a compliance of the ejectment order, nor was in accordance with law. The story of delivery of possession to the landlord vide Exhibit 0.1 was rejected by the Court below. Accordingly, warrants of possession were issued against Avtar Singh who was in actual physical possession at that time. Avtar Singh remained content with that order and, therefore, that order became final against him. The execution proceeded. However, by the impugned order 22.1.1983, the execution application was consigned to the record room on the ground that the bailiff had visited the spot on 21 1.1983 who reported that the shop had been demolished and only Khola (building in a dilapidated condition) was in existence and since corpus of the demised premises had ceased to exist, the execution application had become infructuous. It was further concluded that the possession of the site could not be delivered to the decree-holder as ejectment order was not passed about the site. Regarding the demolition of the shop, the decree-holder was advised to claim damages in separate proceedings. Against the aforesaid order, the landlord decree holder has come to this Court in this revision.

Initially I had allowed the revision of the landlord on 9.11.1983 exparte as the tenant had not put in appearance but lateron, the tenant filed an application that he was net served with the revision and, therefore, exparte order was recalled and the matter has again been posted for hearing.

The counsel for the tenant judgment-debtor has urged that his client had delivered possession of the premises to the landlord on 5 1.1975 and, therefore, the question of execution against him does not arise. The Executing Court gave a categoric finding to which Amar Singh tenant and Avtar Singh were parties and it was held that the possession of the premises was never delivered to the decree-holder and the tenant had delivered the possession of the premises to Avtar Singh and that the delivery of possession did not comply with the decree nor it was legal That order has not been challenged either by Amar Singh or by Avtar Singh. Therefore, it had become final between the parties. Once that is so, the liability of the tenant to deliver the possession or cause the possession to be delivered to Santokh Singh will continue till the decree for execution is complied with by delivery of actual physical possession of the premises to the landlord.

There is obvious collusion between Amar Singh and Avtar Singh because in the Court below the stand of Avtar Singh was also that he is a co-owner with Santokh Singh decree-holder and, therefore, since he is in possession as such, no execution can proceed, It appears that Amar Singh is continuing in possession by himself or through Avtar Singh and the filing of objections by them is to delay the execution and to deprive Santokh Singh from its possession. This cannot be permitted in law after their objections have been disallowed.

Reverting to the matters dealt with by the Executing Court, I am in total disagreement with it that because the premises were demolished after the ejectment order the corpus of the property eeased to exist. In whatever condition the premises were, the Executing Court was bound to deliver possession of the same to the decreeholder. The superstructure stands on the site and the ejectment order had to be read for superstructure as also for the site. Therefore, the view of the Court below that the ejectment order did not include the delivery of possession of the site, is also erroneous. Hence, the decision of the Court below deserves to be reversed.

For the reasons recorded above, this revision is allowed with costs throughout, the order of the Executing Court is set aside and it is directed to deliver the possession of the premises in dispute in whatever condition it may be at the time of actual delivery of possession, to Santokh Singh decree-holder by dispossessing Amar Singh, Avtar Singh or any other person who may be found to be in possession thereof. Since it is an old matter of ten years, the Executing Court will give utmost preference to this case. The parties, through their counsel, are directed to appear before the Executing Court on 16.4.1984.