Rajasthan High Court - Jodhpur

Lrs Of Ramji Lal vs Narendra Kumar on 14 December, 2023

Author: Nupur Bhati

Bench: Nupur Bhati

[2023:RJ-JD:43017]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 11815/2019

1.       Lrs Of Ramji Lal, S/o Sh. Kurda Ram, By Caste Mumar,
         Resident Of Chak 3 E Choti-I, Gali No. 6 Shiv Nagar, Sri
         Ganganagar And Wardno. 7 Kesarisinghpur, Tehsil Sri-
         Karanpur (Deceased) Thruogh His Lrs.
2.       Santosh W/o Late Sh. Ramji Lal, Aged About 51 Years, By
         Caste Kumar, R/o Chak 3 E Choti, Gali No. 5 Near Khatu
         Shyam Mandir, S.s.b. Road Sri-Ganganagar, Tehsil And
         District Sri Ganganagar.
3.       Rakesh Kumar S/o Late Sh. Ramji Lal, Aged About 36
         Years, By Caste Kumar, R/o Chak 3 E Choti, Gali No. 5
         Near Khatu Shyam Mandir, S.s.b. Road Sri-Ganganagar,
         Tehsil And District Sri Ganganagar.
4.       Rita Rani D/o Late Sh. Ramji Lal, Aged About 30 Years,
         W/o Sh. Krishan Lal, By Caste Kumar, R/o Chak 6 E Choti,
         Gali No. 3 Tehsil And District Sri Ganganagar.
5.       Rani Verma D/o Late Sh. Ramji Lal, Aged About 28 Years,
         W/o Chiranji Lal , By Caste Kumar, Resident Of 3 Y Sri-
         Ganganagar, Tehsil And District Sri-Ganganagar.
6.       Laxmi Verma D/o Late Sh. Ramji Lal, Aged About 26
         Years, W/o Sanjeev Kumar, By Caste Kumar, Resident Of
         Chak 3 P.h.m. Khajuwala, District Bikaner.
                                                                   ----Petitioners
                                    Versus
1.       Narendra Kumar S/o Sh. Jugal Kishore, By Caste
         Maheshwari, Resident Of Kesarsinghpur, Tehsil Sri
         Karanpur, District Sri-Ganganagar.
2.       Jagannath S/o Sh. Pyare Lal, By Caste Arora, Resident Of
         50 B Guru Nanak Road, Setiya Colony, Sri Ganganagar,
         Tehsil And District Sri Ganganagar.
                                                                 ----Respondents


For Petitioner(s)         :     Mr. B.S. Sandhu with
                                Mr. Dishant Kiroriwal
For Respondent(s)         :     Mr. C.S. Kotwani



               HON'BLE DR. JUSTICE NUPUR BHATI

                              JUDGMENT

Reserved on                                                        05/12/2023
Pronounced on                                                      14/12/2023



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1. The instant writ petition has been preferred by the petitioner

under Article 226 and 227 of the Constitution of India with the

following prayers:-

"i. The impugned order dated 16.07.2019 passed by Additional District Judge Srikaranpur District Sriganganagar in Execution case no. 27/2018 (Narendra Kumar V/s Ramji Lal & Ors.) may kindly be declared illegal and be set aside.

ii. That the application filed by the deceased Ramji Lal under 47 C.P.C. (Annexure -4) may kindly be allowed as prayed for.

iii. Any other order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioners.

iv. Cost of the writ petition may kindly be awarded to the petitioners."

2. Brief facts of the case are that a suit for specific performance

of agreement dated 12.11.1990 was filed by respondent no.1

(Annexure-1) for the property Muraba No.35 at Chak 4-U, Aahta

No.17 measuring 35 x 60 feet situated at Labour Colony, Faridsar,

Tehsil Karanpur wherein the respondent no.1 prayed for execution

of the sale deed. The suit for specific performance came to be

decreed against the petitioner's deceased father ie Ramjilal and

the decree (Annexure-2) for specific performance was drawn.

3. Thereafter the execution application (Annexure-3) was filed

by the respondent No 1 seeking the same relief that was prayed in

the plaint regarding specific performance along with an additional

prayer of handing over the possession of the land which was not

sought by the respondent no 1 in the suit nor was decreed in his

favour by the trial court. Thereafter upon the service of notices,

[2023:RJ-JD:43017] (3 of 9) [CW-11815/2019]

the deceased Ram Lal preferred an objection application dated

29.10.2018 (Annexure-4) under section 47 of the Code of Civil

Procedure 1908 with the averments that the property in dispute is

an ancestral property and thus the execution proceedings cannot

be initiated against the deceased Ramjilal and moreover there was

no relief sought regarding possession of the property by the

respondent No. 1 in the plaint and thus an additional relief

regarding possession in the execution application was not

maintainable as the suit was of the nature of the specific

performance and not a suit for possession of land in dispute.

4. The respondents filed the reply (Annexure-5) to the

objection application. Thereafter the court below dismissed the

objection application filed by the petitioner vide order dated

16.07.2019 (Annexure-6)

The petitioner aggrieved by the order dated 16.07.2019 prefers

this writ petition. Hence this writ petition.

5. Learned counsel for the petitioner submitted that the

execution court erred in ignoring the importance of omission of a

specific plea regarding the relief of granting possession in a suit

for specific performance, thus in absence of the same no decree

for handing over the possession can be passed. Furthermore he

submitted that the execution court erred in ignoring the fact that

no relief regarding handing over the possession was ever decreed

in favour of the respondent No. 1.

6. Learned counsel for the petitioner also submitted that in the

suit of specific performance no such relief was asked by the

respondent No. 1 nor any issue was framed nor any decree was

[2023:RJ-JD:43017] (4 of 9) [CW-11815/2019]

drawn hence the order assailed is illegal and unsustainable in the

eyes of law hence the same deserves to be quashed and set aside.

7. Learned Counsel for the petitioner also submitted that the

disputed property is under the possession of several people

claiming to be legal representatives of Ramji Lal (deceased), thus

without filing a suit for possession the possession of such persons

cannot be disturbed. He further submitted that the execution court

erred in ignoring the well settled principle of law that a suit for

specific performance is not a suit for possession of land as Section

22 of the Specific Relief Act 1963 categorically bars any Court to

grant such relief of possession in a suit for Specific Performance

unless specially sought.

8. Learned counsel for the petitioner, in support of his

contentions, placed reliance upon the judgment dated 12.09.2001

passed by Hon'ble the Apex Court in the case of Adcon

Electronics Pvt. Ltd. Vs. Daulat and Ors. reported in AIR

2001 SC 3712.

9. Per contra learned counsel for the respondents submitted

that the suit for specific performance preferred by respondent

No.1 has been decreed and the Learned Court below has directed

to make payment of Rs 86000/- to the defendants and it has been

observed that the property Muraba No.35 at Chak 4-U, Aahta

No.17 measuring 35 x 60 feet situated at Labour Colony, Faridsar,

Tehsil Karanpur be transferred to respondent No.1 and sale deed

be executed.

10. Learned Counsel for the respondent also submitted that

Section 22 of the Specific Relief Act 1963 indicates that it is not

[2023:RJ-JD:43017] (5 of 9) [CW-11815/2019]

always incumbent on the plaintiff to pray possession or partition or

separate possession in a suit for specific performance of a contract

for transfer of the immovable property and the relief of possession

can be granted without there being any specific prayer and the

writ petition has been filed by the petitioner to prolong the

litigation and in order to deprive the respondent No.1 to have the

decree executed in his favour and thus the writ petition is liable to

be dismissed.

11. Learned Counsel for the respondent further submitted that

the respondent No.1 had deposited the entire amount as directed

in the judgment and the decree passed by the court below and

when in the first instance the decree of specific performance has

been granted then the relief of possession being incidental could

always be granted by the executing court and as such executing

court has rightly rejected the objections preferred by the

petitioner herein and has not committed any irregularity or

illegality while passing the order impugned.

12. Learned counsel for the respondents, in support of his

contentions, placed reliance upon the judgment dated 05.04.2022

passed by Hon'ble the Apex Court in the case of Hemant Gupta

Vs. Ramasubramanian, JJ reported in (2022) 5 SCC 1996.

13. Heard learned counsel for the parties as well as perused the

material available on record.

14. The petitioner had preferred an application under Section 47

of CPC raising objection to the execution petition No.27/2018

preferred by the respondent on the ground that the decree holder

got the blank papers signed from the deceased Ramji Lal and on

[2023:RJ-JD:43017] (6 of 9) [CW-11815/2019]

the said signed papers, a forged and fake agreement was made by

the decree holder for the land in dispute. It has also been

submitted in the application that there was no deal made between

the decree holder and the judgment writer for the land in dispute

and therefore, the said application filed for execution, is liable to

be dismissed.

15. In the application, the petitioner also submitted that the

deceased Ramji Lal was ready to abide by the terms of the said

agreement but was not ready to abide by the decreed conditions

and thus, the execution application is liable to be dismissed. It is

seen from the application filed by the petitioner that on one hand,

the petitioner has categorically said that the agreement is fake

and forged and on the other hand, it is submitted in the

application that the deceased Ramji Lal alongwith some people

met the respondent-plaintiff for fulfillment of the contract by way

of paying compensation to the plaintiff-respondent as an advance

amount which was not accepted by the plaintiff-respondent.

16. It is seen that in the application, the petitioner has stated

that the possession of the disputed land was not obtained by the

plaintiff as per the agreement and even today, the possession and

tenancy of the deceased Ramji lal on the land in dispute, still

continues and thus, in such circumstances, the decree and

judgment cannot be enforced. Further, the petitioner in the

application has stated that the land mentioned in the agreement

under the category of ancestral property in which, each heir of the

family has a right and share and therefore, the deceased Ramji lal

had no right to sell the said land alone and the consent of each

[2023:RJ-JD:43017] (7 of 9) [CW-11815/2019]

heir is necessary and therefore, in the absence of the consent, the

decree and the judgment dated 07.03.1998, cannot be executed.

17. The petitioner has also stated in the application that the

plaintiff-respondent has not received the possession of the

disputed land through the agreement, nor any decision in respect

to the same has been given vide judgment and decree dated

07.03.1998 and thus, in such circumstances, the decree and

judgment dated 07.03.1998, cannot be executed.

18. A bare perusal of the judgment and decree dated 07.03.1998

reflects that the Court below, had specifically directed the

petitioner defendant to execute the sale deed for the land in

dispute and also getting the same registered in favour of the

plaintiff while directing the plaintiff-respondent to pay the cost of

registration and thus, once, the sale deed is executed and

registered, the possession of the land in dispute in favour of the

plaintiff-respondent is ancillary and in the absence of any direction

given by the Court below while passing the decree in respect to

the possession to be handed over to the respondent-plaintiff, it

cannot be said that the plaintiff-respondent cannot make a prayer

while filing the application for execution of the decree and

judgment that the possession of the land in question may be

delivered to the plaintiff-respondent. The relief of possession is

ancillary to the decree for Specific Performance and need not be

specifically claimed.

19. This Court finds that Hon'ble the Apex Court in the case of

Hemant Gupta Vs. Ramasubramanian, JJ reported in (2022)

5 SCC 1996, has held that:-

[2023:RJ-JD:43017] (8 of 9) [CW-11815/2019]

"29. To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute, we find that Section 22(2) of the Act is only directory and thus, the decree-holder cannot be nonsuited for the reason that such relief was not granted in the decree for specific relief.

30. The defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor.

31. The judgment debtor in the written statement has admitted that the property is a vacant land and that she has sold other portion in favor of one Lakshmipathy. The stand of the judgment debtor now that the respondent is in possession of 750 sq. feet would not defeat the right of possession of 2400 sq. feet of an area which she has agreed to sell to the plaintiffs in respect of which decree was passed. All sales affected, and the construction, if any, raised are subject to lis pendens and no legal or equitable rights arise in favour of the purchasers during the pendency of the proceedings. Therefore, the decree-holders are entitled to actual physical possession of 2400 sq. feet of land which was agreed to be sold to the appellants.