Dara Singh vs Smt.Shivkumari Bai D/O Shri Pancham ...
2024 Latest Caselaw 28318 MP

Madhya Pradesh High Court

Dara Singh vs Smt.Shivkumari Bai D/O Shri Pancham ... on 15 October, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

NEUTRAL CITATION NO. 2024:MPHC-JBP:51878


                                                                                1                                             M.P. No.5677/2024


                 IN THE                      HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                                           BEFORE
                                     HON'BLE SHRI JUSTICE G.S. AHLUWALIA
                                                  ON THE 15th OF OCTOBER, 2024
                                   MISCELLANEOUS PETITION No. 5677 of 2024
                                                         DARA SINGH AND OTHERS
                                                                               Versus
                    SMT. SHIVKUMARI BAI (DECEASED) THROUGH LRS SMT. DAYA
                                                       RAGHUVANSHI AND OTHERS
               ............................................................................................................................................
               Appearance:
               Shri Ashok Kumar Chakravarti - Advocate for the petitioners.
               ............................................................................................................................................
                                                                          ORDER

This petition under Article 227 of Constitution of India has been filed seeking following relief(s):-

7.1 That this Hon‟ble Court may kindly be pleased to issue a writ and set-aside order dated 20.9.24, passed by Civil Judge Senior Division Chaurai, District Chhindwara (M.P.) in Ex.C. No.Ex.A/02/22 contained in Ann.P/1, as the proceedings for execution of Decree has been initiated by incompetent Court namely; Civil Judge Junior Division Chaurai, District Chhindwara in the interest of justice.

7.2 That this Hon‟ble Court may kindly be pleased to quash entire execution proceedings in Ex.C. No.Ex.A/02/22 pending before the Learned Civil Judge Senior Division Chaurai, District Chhindwara (M.P.) as being void ab initio in the interest of justice. 7.3 That this Hon‟ble Court may kindly be NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

pleased to direct the Learned Executing Court to first consider and decide the application Under Order 14 Rule 5 CPC dt.20.8.24 contained in Annexure P/9 and another application for framing issues and to lead opportunity of evidence, then to decide all the written objections made by the petitioners contained in Annexure P/6 & P/7 afresh. 7.4 Any other relief deemed fit, may also kindly be granted.

2. It is submitted by counsel for petitioners that a decree for possession has been passed against the petitioners. Petitioners filed an application raising objection to the execution proceedings thereby challenging the maintainability of the suit as well as the jurisdiction of the Trial Court to pass the decree. However, by impugned order dated 20/09/2024 the Executing Court has rejected the said objection.

3. Challenging the order dated 20/09/2024, it is submitted by counsel for petitioners that suit was filed by Smt. Shivkumari for declaration of title and possession. The defendants/ petitioners filed their written statement along with counter-claim for declaration of their title as well as that they have perfected their title by way of adverse possession. The Trial Court by judgment dated 30/08/2019 decreed the suit filed by plaintiff/respondent No.1 and dismissed the counter-claim filed by the petitioners.

4. Being aggrieved by judgment and decree passed by Trial Court, petitioners filed two Civil Appeals i.e. Civil Appeal No.19/2020 and Civil Appeal No.20/2020. The appeals were dismissed by District Judge Chourai, District Chhindwara by judgment and decree dated 03/03/2022.

NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

5. Being aggrieved by said judgments and decrees, petitioners preferred Second Appeal No.1326/2022 which was dismissed by this Court by order dated 17/01/2023. Petitioners filed an objection before the Executing Court with regard to the maintainability of the suit which has been dismissed by the impugned order.

6. Challenging the order passed by the Executing Court, it is submitted by counsel for petitioners that since the land in dispute i.e. khasra Nos.266/4, 267/4 and 268/4 total area 2.091 hectares situated in village Grethiya is an agricultural land, therefore the plaintiff had an efficacious remedy of initiating proceedings under Section 250 of M.P.L.R. Code. Since the same was not done, therefore it was claimed that the suit filed by the plaintiff is not maintainable in the light of Section 257 of M.P.L.R. Code and it is further submitted that therefore the judgment and decree passed by the Trial Court which has been affirmed by the High Court is a nullity and is unexecutable.

7. Heard learned counsel for the petitioners.

8. It is well established principle of law that the Executing Court cannot go beyond the decree. A decree for possession has been passed by the Trial Court which has been affirmed up to the stage of High Court.

9. The Supreme Court in the case of Mumtaz Yarud Dowla Wakf Vs. M/s. Badam Balakrishna hotel Pvt. Ltd. And Ors. reported in AIR 2023 SC 5491 has held as under:-

"14. The legal principle that an Executing Court cannot go beyond the decree stands fortified, subject to the rigor of Section 47 read with Order XXI of the Code. As a matter of course, an Executing Court is enjoined with the duty to give NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

effect to the decree. Any interference, including on a question involving jurisdiction, should be undertaken very sparsely as a matter of exception. The onus lies heavily on the judgment-debtor to convince the Court that a decree is inexecutable. When an exercise is likely to involve a factual adjudication, it should better be avoided.

15. The conduct of a party assumes significance. If a party is likely to have an undue advantage, despite the availability of an opportunity to raise a plea of lack of jurisdiction at an earlier point of time, it should not be permitted to do so during the execution proceedings. In other words, a plaintiff shall not be made to suffer by the passive act of the defendant in submitting to the jurisdiction. One has to see the consequence while taking note of the huge pendency of the cases before various Courts in the country. There is no gainsaying that but for the adverse decree suffered, a judgment-debtor would not have ventured to raise such a plea. It is clearly a case of an afterthought to suit his convenience. He cannot be allowed to approbate and reprobate. Though we are conscious about the earlier precedents dealing with the stage at which such a plea can be raised, much water has flown under the bridge in terms of the ground reality. Union of India and Others v. N. Murugesan and Others, (2022) 2 SCC 25, "Approbate and reprobate

26. These phrases are borrowed from the Scots law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.

27. We would like to quote the following judgments for better appreciation and understanding of the said principle:

27.1.Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B. Shama Rao, 1956 SCR 451 : AIR 1956 SC 593] : (AIR pp. 601-02, para 23) "23. But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate. It is immaterial that the present appellants were not parties thereto, and the NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

decision in Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd. [(1921) 2 KB 608 (CA)], and in particular, the observations of Scrutton, LJ., at p. 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree.

Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L.J. : (Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)] , KB p. 611) „... Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act.‟ The observations of Scrutton, L.J. on which the appellants rely are as follows :

(Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)], KB pp. 611-

12) „... A plaintiff is not permitted to "approbate and reprobate". The phrase NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election -- namely, that no party can accept and reject the same instrument : Ker v. Wauchope [(1819) 1 Bligh PC 1 at p. 21 : 4 ER 1 at p. 8] :

Douglas-Menzies v. Umphelby [1908 AC 224 at p. 232 (PC)] . The doctrine of election is not however confined to instruments.

A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.‟ It is clear from the above observations that the maxim that a person cannot "approbate and reprobate" is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England, Vol. XIII, p. 464, para 512: „On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it.‟ 27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC 144] : (SCC pp. 153-54, paras 22-23 & 25-26) "22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. MR. P. Firm Muar [AIR 1965 SC 1216] .)

23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground.

(Vide Maharashtra SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329]). In R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683] this Court has observed as under : (R.N. Gosain case [(1992) 4 SCC 683] , SCC pp. 687-88, para 10) „10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that „a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

and then turn round and say it is void for the purpose of securing some other advantage‟.‟ ***

25. The Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had." 27.3. Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] : (SCC pp. 480-81, paras 15-16) "I. Approbate and reprobate NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

15. A party cannot be permitted to "blow hot-blow cold", "fast and loose"

or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [1956 SCR 451 :

AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706] , Pradeep Oil Corpn.

v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712], Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v.

Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : (2013) 4 SCC (Cri) 587 : (2013) 3 SCC (L&S) 416].

16. Thus, it is evident that the doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."

(emphasis supplied)

16. There is a subtle difference when we deal with a case involving coram non-judice. The principle governing lack of jurisdiction to a forum may differ from a case where two or more forums deal with the same issue along with the rights and liabilities of the parties. To make the position clear, one has to see as to whether there is any change in the rights and liabilities of the parties by choosing one forum as against the other. As an example, we can take the case of eviction of a tenant. If he is to be evicted only under the Rent Control Act which extends a certain right to the tenant, who cannot be evicted otherwise than under the provisions contained therein, a common law remedy cannot be invoked by way of a suit as against a proceeding before the Rent Controller. In that view of the matter, certainly the question of prejudice would arise. However, in a case involving same rights and liabilities but the question is only with respect to the forum being judicial or quasi-judicial, the issue of jurisdiction would pale into insignificance when it is sought to be raised as a last straw at a very belated stage. Therefore, when the process becomes the same for both parties who undertake the said route willingly, the question of jurisdiction cannot be put against each other after it has attained finality, unless it is demonstrated that the rights of the party who suffered the decree are obliterated."

10. So far as the question of maintainability of suit before the Trial Court is concerned, it is undisputed fact that petitioners had also filed their counter-claim for declaration of their title as well as that they have NEUTRAL CITATION NO. 2024:MPHC-JBP:51878

perfected their title by way of adverse possession. The question of title cannot be adjudicated by the revenue Courts.

11. Furthermore, in the light of judgment passed by Supreme Court in the case of Mumtaz Yarud Dowla Wakf (supra), it is clear that if the objection with regard to jurisdiction of the Civil Court is not raised, then the same may not be allowed to be raised at the stage of execution proceedings.

12. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.

13. Petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE S.M.