Surjan and Another vs Hari Singh and Others

V.K. Jhanji, J.—This will dispose of Civil Revisions 464 of 1992, 2472 of 1988 as also Civil Misc. No. 6297-CII of 1993 filed in Civil Revision No. 464 of 1992.

The proceedings out of which these Civil Revisions have arisen are nothing but the abuse of the process of the Court.

The dispute between the parties started in the year 1968. When Hari Singh and Inder Singh (Respondent No. 1 and 2 herein) filed Civil Suit No. 17 of 1968 for possession of land measuring 224 Kanal 11 Marlas situated in village Alewa against the petitioners and the proforma respondents (hereinafter referred to as the defendants) or their predecessors-in-interest. Similarly, Baru and others filed Civil Suit No. 470 of 1970 for possession of land against the respondents. Both the suits were consolidated. In civil suit No. 470 of 1940 land involved was nearly 67 Kanal 2 Marlas. Both the suits were decreed on 25.3.1972. Defendants preferred two appeals, No. 126/3 and 127/3 of 1973. Both the appeals were dismissed by the Additional District Judge, Jind on 5.4.1977. Two regular second appeals preferred in this Court were dismissed. SLP was dismissed on 1.5.1986.

After the decision of the Apex Court, defendants who had no justification to remain in possession, filed application u/s 17 of the Arbitration Act (for short the Act) for filing of the alleged Award dated 26.21987 and for making the same as rule of the Court. According to the defendants, after dismissal of the Special Leave Petition, Parties to the litigation decided to refer the dispute to Panchayat so as to bring harmony and good relations and to avoid any dispute in future and ihe occurrence of any untoward incident in the family. Consequently, relations of both the sides convened a Panchayat and the Panchayat decided the matter on the same very day. As per the Award of the Panchayat, Plaintiffs in Civil Suit No. 470 of 1970 were held entitled to remain in possession of 7 Acres of land out of 67 Kanal 2 Marlas and Hari Singh and Inder Singh plaintiffs in Civil Suit No. 17 of 1968 were to receive a sum of Rs. 2,50,000/- in lieu of land measuring 224 Kanal 11 Marlas being the value of the land.

Trial Court vide order dated 27.10.1990 dismissed the application for making the Award as rule of the Court. Trial Court, on appreciation of the evidence brought on record, found that the defendants have not proved the existence of the arbitration agreement. It also found that the arbitration agreement is vague, uncertain and it has not been established that the contesting respondents had in fact given their consent to the reference being made for decision by the Panchayat. It further found that the Award required compulsory registration as it purported to create or extinguish the ownership right in the disputed property. Against the order dismissing the application u/s 17 of the Act, Civil Revision No. 464 of 1992 has been preferred by the defendants. Civil Revision No. 2472 of 1988 has been preferred against order dated 28.9.1988 passed by the Executing Court whereby objections filed by the defendants were dismissed. It may be mentioned at this stage that when the plaintiffs sought the delivery of possession through execution defendants preferred objections on the ground that in view of the Award given by the Panchayat, decree stood satisfied.

Learned counsel for the petitioners contended that the trial Court ought to have believed voluminous evidence which was led in order to show the existence of the agreement and the Award which was passed in pursuance of the agreement. He further contended that Hari Singh and Inder Singh thumb marked the agreement and signed the same in token of its acceptance. He made reference to (i) Nitya Ranjan Chatterjee Vs. Chitta Ranjan Catterjee and others, and (ii) Ram Lal v. Lachhman Dass and Ors. (1988) 93 PLR 673 to contend that the Award which declared the existing rights does not require registration.

In reply, learned counsel for the respondents contended that the order under revision calls for no interference.

Having heard the learned counsel for the parties at length, I find that the proceedings u/s 17 of the Act are frivolous and were filed only in order to delay the delivery of possession of the suit land in execution of the decree which the plaintiffs successfully obtained after litigating for more than 25 years in various Courts.

As already noticed, suits were filed in 1968 and 1970 and were decreed on 25.3.1972. The same were affirmed by the Supreme Court in May, 1986. Since the matter had been settled upto the highest Court, there was no dispute left between the parties. It was only when the plaintiffs sought possession through the agency of the Court that the proceedings u/s 17 of the Act were filed. Reading of the evidence leads to only one conclusion that the entire story set up by the defendants is false and concocted. Defendants also roped in AW-3 Dalbir Singh, Advocate, who in his statement, slated that he had scribed the agreement and the Award on the asking of the plaintiffs and the defendants. A bare perusal of the agreement and the Award shows that they are forged and fictitious documents. The agreement and award are not entered into the proceedings book of the Panchayat but are on loose sheets. There is no mention in the agreement about the particulars of the land or the dispute which was required to be settled by the Panchayat. Thumb impressions appearing on these documents are not comparable. The agreement is neither attested by any witness nor has been signed by the defendants. There is much to be said on the statement made by Dalbir Singh, Advocate, but considering that he is an Advocate and if any finding is given by this Court on the statement made by him, it will affect his career in profession which may lead to serious consequences, I am not commenting any further on his statement. The contention as to whether the Award required registration or not is of no consequence because once the existence of the agreement is not proved, the Award or its registration has no meaning. Otherwise too, the contention of counsel that the Award set up by the defendants declares the existing rights of the parties has not substance for the reason that the Award purports to create right in favour of the defendants and correspondingly purports to extinguish rights of the plaintiffs. An award given under the Arbitration Act requires registration u/s 17(1)(b) of the Registration Act, if the Award in question purports or operated to create, declare, assign, limit or extinguish, whether in present or future any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

Consequently, I find that no ground is made out to interfere with the order of the trial Court or the Executing Court. This leaves me to decide Civil Misc. No. 6297-C-1993 in which a prayer has been made by the plaintiffs for a direction to the Executing Court to determine mesne Profits as the defendants remained in illegal possession.

In reply, defendants have stated that the plaintiffs in Civil Suit No. 470 of 1970 had filed suit for recovery of mesne profits but the same was dismissed and thus this Court should not give any direction to the Executing Court in this regard. I am not prepared to accept this contention of the learned counsel for the defendants. The suit was dismissed by the trial Court on the ground that only Revenue Court has the jurisdiction to try such a suit. Defendants cannot take advantage of the dismissal of Civil suit because the same was dismissed for want of jurisdiction. Plaintiffs, who could not take possession because of the initiation of the proceedings by the defendants u/s 17 of the Act. are entitled to mesne profits as there was no justification with the defendants to remain in possession after the decree of the trial Court was affirmed by the Apex Court. Plaintiffs are thus entitled to mesne Profits with effect from 1.5.1986 i.e. when SLP was dismissed by the Supreme Court:-

(i) the Executing Court shall get the possession delivered to the plaintiffs in execution of the decree by issuance of warrants of possession and in case police help is required, an order to that effect shall also be passed by the Executing Court.

(ii) the Executing Court shall determine the mesne profits with effect from 1.5.1986 till the possession is delivered to the plaintiffs and for recovery of the same, necessary process shall also be issued.

As a result of the above discussion, Civil Revisions No. 464 of 1992 and 2474 of 1988 are dismissed with costs. Costs arc quantified at Rs. 10,000/-. Civil Miscellaneous No. 6297-CII of 1993 is also disposed of.