CLR/49/2018 of Puran Singh Vs Aman Deep Singh AND ANOTHER

Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 49 of 2018

……… Revisionist

Puran Singh

Versus

Aman Deep Singh and another ………. Respondents

Mr. Chetan Joshi, Advocates for the revisionist. Dr. Ugyog Shukla and Mr. Shakeb Khan, Advocates for the respondents.

[Per: Hon’ble Lok Pal Singh, J.]

Civil Revision under Section 115 of the Code of Civil Procedure (hereinafter referred to as CPC), is directed against the order dated 17.04.2018, passed by Civil Judge (Sr. Div.), Almora, in Civil Execution Case no. 01 of 2015, Amandeep Singh and others Vs Puran Singh, whereby the said court has dismissed the objections / application of the revisionist filed under Section 47 of CPC.

2) Brief facts of the case are that the property in question consists of two old bungalows along with outhouses as well as 201 Nali land, being Khata Khatuni no. 01, situated in Village Paparsali, Patti Khas Parja, District Almora and this property is divided on the spot into two estates known as ‘Deodar Estate’ and ‘Epworth Estate’. Father of the revisionist was in possession of the ‘Epworth Estate’ since the Britishers left India and after death of his father, revisionist is in possession of the property in question for last more than 40

years. It is averred that when some intruders tried to interfere in the possession of the revisionist, he filed civil suit no. 28 of 1995, Puran Singh Vs State and another, seeking permanent injunction and declaration. Aforesaid suit was dismissed vide judgment and order dated 27.08.2007. Feeling aggrieved by the same, revisionist preferred Civil Appeal no. 25 of 2007, Puran Singh Vs State & another before the District Judge, Almora. Said civil appeal too was dismissed. Aggrieved against the dismissal of said civil appeal, revisionist filed Second Appeal no. 39 of 2008 before this Court and succeeded in obtaining an interim order. Subsequently, aforesaid second appeal was dismissed for want of prosecution and restoration application filed for restoration of the same is pending disposal before this Court.

3) Simultaneously, revisionist filed suit, being revenue suit no. 09/2003-04, under Section 229B of the U.P. Z.A. & L.R. Act, for declaring him as owner of the property in dispute. Said suit was dismissed by the revenue court vide judgment and order dated 02.03.2006. Against the dismissal of said suit, revisionist preferred an appeal, being Z.A. Appeal no. 87/2010-11/13/2010-11, under Section 331 of the U.P.Z.A. & L.R. Act. The said appeal too was dismissed by Addl. Commissioner, Kumaon Mandal, Nainital vide judgment and order dated 11.02.2014. Order dated 11.02.2014 was assailed by the revisionist by way of Second Appeal no. nil/2017-18, under Section 331(4) of the U.P.Z.A. &

L.R. Act before the Board of Revenue, Circuit Court, Nainital, which is pending adjudication.

4) It is averred that during the pendency of aforesaid proceedings, respondents fraudulently got executed sale deed of the entire land in Khata no. 1, admeasuring 201 Nali, on 19.01.2009. American Methodist Mission also filed suit against the revisionist, being O.S. no. 64 of 2003, seeking prohibitory injunction against the revisionist. Said suit was decreed by the learned Civil Judge against the revisionist vide judgment and order dated 16.04.2012. Being aggrieved, revisionist preferred First Appeal no. 60 of 2012, Puran Singh Vs American Methodist Mission before this Court, which was dismissed vide judgment and order dated 22.01.2015. Against the order dated 22.01.2015, revisionist preferred SLP no. 6151 of 2015 before the Hon’ble Apex Court. Meanwhile, one Awadhesh Kumar Verma also preferred SLP (C) nos. 36208 of 2013 and 36209 of 2013 before the Hon’ble Apex Court. All the SLPs were heard together. Vide order dated 24.11.2015, Hon’ble Apex Court directed the District Magistrate, Almora, who was impleaded party in the SLP, to look into the matter whether the State Government has some interest in the property in question, or not? The District Magistrate forwarded his report to the State Government. On the basis of direction issued by the Hon’ble Supreme Court, revenue case no. 01/2015-16, State of Uttarakhand through Collector, Almora Vs Sri Amandeep Singh and others, was instituted before the court of learned Assistant Collector (I

Class) Sadar Almora under Section 167 of the U.P.Z.A. & L.R. Act, 1951. Revisionist was impleaded as respondent in said proceedings. Having heard learned counsel for the parties and after perusing the material brought on record, the Assistant Collector (I Class), Almora decided the case finally vide judgment and order dated 31.10.2017. The entire land in question was declared State land and the subsequent sale deed dated 19.01.2009, on the basis of which the respondents are claiming their title over the disputed property, was declared void and the land in question was vested in the State Government. Thereafter, the Hon’ble Apex Court proceeded further with the SLPs and disposed of the same on 04.12.2017 observing that the disputed property in the changed scenario cannot be devolved in favour of respondent nos. 1, 2 and 3 once the State Government has initiated proceedings for acquiring said property.

5) It is also averred that one Mr. Richard Wheeler, who was also in possession of some part of the property in dispute, also filed suit, being Revenue Suit no. 54 / 2005-06, under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act in the year 2006 before Assistant Collector, Bara Mandal, Almora seeking declaration of his title on his part of the property in dispute. Notices were sent to the American Methodist Mission (hereinafter referred to as ‘the Mission’), who filed its written statement initially admitting the facts of the case. Later on, the admissions were withdrawn by filing

an application for amendment. It is alleged that during the pendency of said suit, Executive Board, Board of Methodist Church in India without title, right and authority sold the said property to respondents vide registered sale deed dated 19.01.2009. When Mr. Wheeler came to know about the fraudulent sale executed by Board of Methodist Church in India claiming itself to be owner of property, he filed his objection in mutation proceedings. Learned Mutation Court / Tehsildar, Almora rejected the objections of Mr. Wheeler and passed the order of mutation in favour of respondents. Against the order of mutation, Mr. Wheeler preferred an appeal before the Assistant Collector, Almora, which too was dismissed. Against the dismissal of appeal, revision was filed before the Commissioner, Kumaon Division, Naintial. Said revision too was dismissed with the observation that the mutation proceedings are summary in nature and it does not decide the title of any party.

6) Aggrieved against the same, Mr. Wheeler preferred writ petition before this Court, being WPMS no. 1015 of 2013, Richard Wheeler Vs Board of Methodist Church in India and others. The same was dismissed by this Court on 15.07.2013. Special Leave Petition, being Special Leave to Appeal (Civil) no. 37630 of 2013 filed by Mr. Wheeler was dismissed on 02.01.2014. It was observed by Hon’ble Apex Court that the orders passed in mutation proceeding shall not prejudice his right on any ongoing case of title in any court. Thereafter,

seller and purchaser were impleaded as defendants in his suit which was pending in the court of Assistant Collector, Bara Mandal, Almora. Defendants filed their written statements denying the plaint allegations, inter alia, on the grounds of transfer of property and further set up case of licence against the plaintiff. Defendants (purchasers) had also filed their counter claim on the basis of alleged sale deed seeking relief of eviction against the plaintiff / petitioner.

7) Learned Assistant Collector (Ist Class), Almora having heard learned counsel for the parties and after framing the issues dismissed the suit of plaintiff Mr. Wheeler for declaration of rights vide judgment and order dated 06.01.2014. Two revenue appeals, being Appeal nos. 31 and 32 of 2013-14, Richard Wheeler Vs State of Uttarakhand and others, were filed before the learned Commissioner, Kumaon Division, Nainital. Said appeals were numbered as Appeal no. 31 of 2013-14 and Appeal no. 32 of 2013-14. Learned Addl. Commission vide common judgment and order dated 29.09.2016 dismissed the appeal of the plaintiff Mr. Wheeler and allowed the other in favour of respondents in cursory and cryptic manner.

8) Against the judgment and order dated 29.09.2016, Second Appeal was preferred before the Board of Revenue, Uttarakhand, being Second Appeal no. 41 of 2015-16, Richard Wheeler Vs State of Uttarakhand, through Collector, Almora and others. Respondents (seller and purchasers) also

preferred two Second Appeals, being S.A. no. 163 of 2015-16 and S.A. no. 164 of 2015-16, Aman Deep Singh & others Vs Richard Wheeler & others. The learned Board of Revenue vide judgment and order dated 30.11.2017 dismissed Second Appeal no. 41 of 2015-16 and allowed the S.A. nos. 163 of 154 of 2015-16, setting aside the order dated 29.09.2015, passed by the Addl. Commissioner, Nainital and affirmed the judgment and order dated 06.01.2014, passed by the Assistant Collector (I Class), Almora.

9) Meanwhile, respondents, who are trying to grab the property in question filed revision against the order dated 31.10.2017 before the Board of Revenue without impleading the revisionist as party in said proceedings. Said revision was allowed vide judgment and order dated 26.03.2018. It is alleged that the respondents with an intention to grab the property are continuing with execution proceedings and are trying to dispossess the revisionist from the land in question. Revisionist filed an objection under Section 47 of CPC before the executing court stating therein that since the land in question has vested with the State Government vide order dated 31.10.2017 and the sale deed in favour of the respondent has been treated to be in contravention of the provisions of U.P.Z.A. & L.R. Act, as such, respondents cannot get the decree executed. Vide order dated 17.04.2018, the executing court has dismissed the objections filed by the revisionist under Section 47 of CPC. Hence, present civil revision.

10) Heard learned counsel for the parties and perused the material available on record.

11) Learned counsel for the revisionist would submit that from bare perusal of order dated 17.04.2018 it would reveal that the executing court misconstrued the arguments of the decree holder that it cannot test the validness and correctness of the decree.

12) Learned counsel for the revisionist would further submit that the objection filed by the revisionist under Section 47 of CPC before the executing court is that since the land in question has vested with the State Government vide judgment and order dated 31.10.2017 and the sale deed in favour of the respondent has been treated to be in contravention of the provisions of U.P.Z.A. & L.R. Act, as such, respondents cannot get the decree executed.

13) Hon’ble Apex Court in Brakewel Automotive Components (India) (P) Ltd. Vs P.R. Selvam Alagappan, 2017 (5) SCC 371, has held as under:

“19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by court lacking inherent jurisdiction or is nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is nullity. There are no intervening developments as well as to render the decree inexecutable.

20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.

21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others (1970) 1 SCC 670, in essence enunciated that only decree which is nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:

“A Court executing decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, decree even if it be erroneous is still binding between the parties.

When decree which is nullity, for instance, where it is passed without bringing the legal representatives on the record of person who was dead at the date of the decree, or against ruling prince without certificate, is sought to be executed an objection in that behalf may be raised in proceeding for execution. Again, when the decree is made by Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”

22. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh vs. Jai Prakash University and others, (2001) 6 SCC 534, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void

ab initio and is nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.

14) Thus, it can safely be construed that the executing court had rightly rejected the application moved by the revisionist / judgment debtor under Section 47 of CPC as it had no jurisdiction to examine the validity or to review or hear the appeal in respect of orders passed by Assistant Collector as well as by Revenue Council Dehradun. Thus, the executing court is not an appropriate forum for the person aggrieved (revisionist herein) and the said orders have no concern at all with the execution proceedings of the suit. The judgment and decree dated 22.01.2015 passed by this Court in First Appeal no. 60 of 2012, Puran Singh Vs American Methodist Mission is effective and very much in existence. It is also evident that the execution proceeding going on in the executing court were not stayed by any of the courts.

15) Furthermore, the revisional jurisdiction exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by clauses (a) to (c) thereof, and should be applied only in those cases, where subordinate court appears to have exercised jurisdiction not vested in it by law; or failed to exercise jurisdiction so vested; or acted in exercise of its jurisdiction illegally or with material irregularity. In other words, such

revisional jurisdiction may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate court or assumption of jurisdiction which the Court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The revisionist could not bring its case within the parameters as laid down under Section 115 of the Code. The jurisdiction under Section 115 of the Code is akin to the jurisdiction as guaranteed upon this Court under Article 227 of the Constitution of India. Revisional jurisdiction under Section 115 of the Code is not to correct the mistake of fact and to substitute its own findings by the revisional court.

16) In view of the above, this Court has no reason to interfere in the order impugned as the revisionist has failed to show that grave injustice or failure of justice has occasioned to him, or the court below has assumed jurisdiction which it do not have, or has failed to exercise jurisdiction which it possess and that the jurisdiction though available is being exercised in manner which tantamounts to overstepping the limits of jurisdiction.

17) In view of the above, the civil revision is devoid of merit and is liable to be dismissed. The same is hereby dismissed.

(Lok Pal Singh, J.)

Dt. July 28, 2020Negi