Ashok Kumar vs Swaran Bansal & Ors
2021 Latest Caselaw 4085 P&H

              CR No. 6228 of 2018                           -1-



IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                              CR No. 6228 of 2018 (O&M)
                              Reserved on : 29.11.2021
                              Date of pronouncement : 3.12.2021

                             ...

    Ashok Kumar
                                             ................Petitioner

                              vs.

    Swaran Bansal and others
                                             .................Respondents



    Coram: Hon'ble Mr. Justice H. S. Madaan



    Present: Mr. Amit Jain, Senior Advocate with
             Mr. Dhruv Mittal, Advocate for the petitioner.

            Mr. Aman Bahri, Advocate for the respondents.
                          ...

    H. S. Madaan, J.

1. This revision petition is directed against order dated

2.2.2018 and sale deed dated 7.2.2018, executed in pursuance of said

order passed by Civil Judge (Senior Division), Chandigarh.

2. Briefly stated, facts of the case, as per case of the

revisionist, are that initially Smt. Swaran Bansal had been in

occupation of shop No. 156/6, Old Ropar Road, Manimajra as a

tenant under Sh. Ram Chander and his wife Smt. Lajwanti. Both of

them had initiated ejectment proceedings against Smt. Swaran Bansal

- tenant. However, Sh. Ram Chander died. He had bequeathed shop

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in question to his wife Smt. Lajwanti. Smt. Lajwanti entered into an

agreement to sell the shop in question with tenant Smt. Swaran

Bansal on 13.11.2001. Smt. Lajwanti died on 18.1.2002, leaving

behind legal heirs i.e. Ashok Kumar etc. The plaintiff-tenant had

brought a suit for grant of specific performance of agreement to sell.

That suit was dismissed by Civil Judge (Junior Division),

Chandigarh. However, on an appeal having been filed by the plaintiff,

the same was allowed by the Additional District Judge, Chandigarh.

An execution application was filed by the plaintiff, where defendants

- JDs appeared and filed objections, which were partly allowed. The

defendants - JDs challenged such order dismissing their objections

in part, by way of filing a revision petition before the High Court.

However, that revision petition bearing CR No. 7343 of 2015, was

withdrawn with liberty to file fresh objections, since the respondent-

plaintiff had made a statement that she had withdrawn proposed sale

deed in entirety and filed fresh proposed sale deed. The Executing

Court without comparing the proposed sale deed with the decree, had

passed the impugned order dated 2.2.2018, copy of which being

Annexure P-6.

3. Feeling aggrieved, the JD - defendant Ashok Kumar,

has brought the present revision petition, notice of which was given

to the respondent-plaintiff - decree holder.

4. I have heard learned counsel for the revisionist - JD, as

well as counsel for the respondent -decree holder - plaintiff, besides

going through the record and I find that the revision petition is

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without any merit.

5. This is an admitted fact that earlier respondent- decree

holder plaintiff, had been in possession of the shop in question as

tenant and subsequently, she had agreed to purchase the shop from

the landlords by way of agreement to sell dated 13.11.2001, copy

Annexure P-1. Since the other party was not coming forward to

execute the sale deed, plaintiff brought a suit for grant of specific

performance, which though was dismissed by the trial Court but on

an appeal having been filed, the suit was decreed and specific

performance of agreement to sell was allowed. Admittedly, the said

judgment passed by Additional District judge, Chandigarh, has

attained finality.

6. The dispute between the parties is mainly as to whether

roof of the shop in question is subject matter of the transfer or not.

According to the revisionist, it is not, whereas as per case of the

respondent - decree holder the transfer includes roof also. Here the

reference to judgment passed by Additional District Judge,

Chandigarh, Annexure R-1 is very relevant and necessary. In para

No. 46 to 49 of the judgment, this aspect has been dealt in details,

coming to the conclusion that the agreement was with regard to the

entire shop and not ground floor only.

7. Feeling aggrieved by that judgment, the defendants had

preferred a Regular Second Appeal before this Court, the said appeal

bearing RSA 2110 of 2011, was dismissed vide judgment dated

13.5.2011, copy Annexure R-3. A perusal of the judgment goes to

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show that the appellants had not agitated this point specifically and

their appeal had been dismissed. The matter had gone to the Apex

Court also since the defendants had filed a Special Leave Petition

there, but the said petition was dismissed vide order dated 8.11.2011

copy of which being Annexure R-4. With judgment passed by learned

Additional District Judge, Chandigarh, having been affirmed upto the

Apex Court, now it is not open to the defendants to re-agitate the

matter that roof of the shop in question was not the subject matter of

agreement to sell and was not intended to be transferred to the

plaintiff. The argument advanced by learned counsel for the

revisionist that the observations made in para Nos. 46 to 49 are not

reflected in the decree passed, as such cannot be taken into

consideration, lacks merit. With a clear finding having been given by

learned Additional District Judge and judgment having attained

finality, the parties are bound by such finding and defendants-JDs

cannot wriggle out of the same.

8. Another fact to be taken into view is that when the

plaintiff-decree holder had filed an execution application, the

defendants bad filed objections there, one of which was that since as

per condition No. 13 of the rent agreement, entered into between the

parties, the tenant was not entitled to use the roof of the shop and it

was a tenanted premises, which had been agreed to be sold, vide

agreement to sell dated 13.11.2001, therefore, the claim with regard

to roof was not decreed and it cannot be mentioned in the sale deed to

have been transferred to plaintiff-decree holder. This objection,

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besides other objections filed, had been resisted by the plaintiff-

decree holder.

9. After hearing the arguments, the Executing Court had

dismissed the objections, observing that such objections had been

taken by the JDs before the trial Court, as well as the Appellate

Court of Additional District Judge, Chandigarh. Those were decided

by the Appellate Court in judgment dated 16.2.2011 and after

upholding the validity of the agreement to sell, it is observed that

from perusal of the agreement to sell, it is clear that there is no

question of agreement with regard to ground floor only and it is clear

that agreement was with regard to entire shop and no question of

ground floor only arises. With such observations being there, the

objections could not be raised again in execution proceedings and

were not maintainable.

10. Other objections were also dealt with in detail. The

Executing Court observed that objections raised by JD No. 1 and 2

were false and frivolous amounting to abuse of process of law. In that

way, the objections were dismissed with costs of Rs.12,500/- . The

revision petition filed by defendant- JDs in this court, against that

order had been withdrawn, with liberty to file objections to the

amended draft sale deed. Such objections were however, not filed and

the Executing Court on getting report of Ahlmad and finding that the

draft sale deed was as per the decree dated 31.5.2015, had appointed

Niab Nazir as Local Commissioner, for execution of the sale deed

and to get it registered, who accordingly did so.

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11. Again the defendants - JDs had defaulted in filing the

objections to the amended draft sale deed. Then the JDs filed

objections to the sale deed. However, on account of pendency of

C.R. No. 5497 of 2018, further proceedings in the Executing Court

remained stayed for some time, but thereafter on a clarification being

given, the objections filed against the sale deed have been dismissed.

12. The controversy having been settled on account of

judicial verdict coming in the form of observations by learned

Additional District Judge, Chandigarh and such judgment having

been upheld by this Court, as well as by the Hon'ble Apex Court, it

cannot be re-opened now by way of filing objections time and again.

13. The impugned order passed, declining such objections, is

quite detailed, well reasoned, based upon proper appraisal and correct

interpretation of law. I do not find any illegality or infirmity with the

impugned order apparent on the face of the same, which might have

called for interference by this Court, while exercising the revisional

jurisdiction.

14. The revision petition is found to be without any merit

and is dismissed accordingly.

                                               ( H.S. Madaan )
3.12.2021                                         Judge
chugh



                Whether speaking / reasoned           Yes / No

                Whether reportable                    Yes / No




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