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Lal Chand v/s Trust Prabh Dayal Shah Moti Ram Shah & Another


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- M R RAM CHAND AND CO PRIVATE LIMITED [Active] CIN = U74899DL1924PTC000111

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- MOTI PVT LTD [Active] CIN = U74899DL1961PTC003372

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- MOTI PRIVATE LIMITED [Active] CIN = U67120TN1943PTC001460

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- DAYAL LIMITED [Dissolved] CIN = U99999MH1942PTC003639

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    Regular Second Appeal No. 302 of 2017

    Decided On, 17 April 2019

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE TARLOK SINGH CHAUHAN

    For the Appearing Parties: R.L. Sood, Arjun Lall, Jeevesh Sharma, Advocates.



Judgment Text

1. This regular second appeal is directed against the judgment dated 17.6.2017 passed by the learned Additional District Judge-I, Kangra at Dharamshala in Civil Misc. Appeal No. 3-K/2015, whereby he affirmed the order dated 1.7.2015 passed by the learned Civil Judge (Jr. Div.), Kangra, in Execution Petition No. 7/2006 dismissing the objections filed by the appellant (hereinafter referred to as the "objector").

2. Indubitably, a decree for possession was passed by the learned Civil Judge (Jr. Div.), Kangra on 25.4.2000 in favour of respondent No.1 (hereinafter referred to as the "decree holder"). The said judgment and decree was affirmed in appeal by the learned Additional District Judge (Fast Track Court), Kangra vide judgment dated 8.8.2006 and has, therefore, attained finality. The decree holder filed an execution petition under Order 21 Rule 11 and 35 CPC for execution of the judgment and decree dated 25.4.2000 against respondent No.2 (hereinafter referred to as the "judgment debtor"), seeking delivery of physical possession of land comprised in Khata No. 372 min, Khatauni No. 726, Khasra Nos. 2502, 2503, area measuring 16-25 D.M., situated at Up Mohal Bhawan Kangra, Tehsil and District Kangra. Due to non-appearance of the judgment debtor before the learned executing court, he was proceeded ex-parte on 11.10.2007. Thereafter, the learned executing court issued warrant of possession in respect of the land in dispute and the report was called for. In the report so called for, it was submitted by the Bailiff of the court and revenue officials that though the possession of Khasra No. 2502 was delivered to the decree holder, however possession of Khasra No. 1503 could not be delivered because the objector had refused to lift the potatoes and onions sacks kept by him over Khasra No. 2503.

3. The decree holder then moved an application under Order 21 Rules 97, 99, 101 read with Section 151 CPC, seeking fresh direction to the Bailiff for delivery of possession.

The objector contested the application by pleading that the same was barred by limitation. It was contended that the land comprised in Khasra No. 2503 was in his possession as tenant under Choukas Ram, on payment of rent, since 1985.

4. The learned executing court on 6.7.2010 framed the following issues:

1. Whether the application is barred by limitation, as alleged? OPR

2. Whether the respondent is in possession of field No. 2503, as a tenant and if so, its effect? OPR

3. Relief.

5. After recording the evidence and evaluating the same, as observed above, the learned trial court allowed the application moved by the decree holder vide order dated 1.7.2015 and the said order stood affirmed by the learned first appellate court vide order dated 17.6.2017, constraining the objector to file the instant appeal.

6. On 25.10.2018 the instant appeal came to be admitted on following substantial questions of law:

1. Whether the original suit was maintainable in the absence of the instrument of the Trust, which was not placed and proved on record?

2. Whether the original suit was bad in law and not maintainable as all the trustees had not been joined as plaintiffs along with the trust in the suit?

3. Whether the execution petition by itself was not maintainable in the absence of a resolution of the trust authorizing the filing of the same particularly through the then Secretary?

4. Whether the application under Order 21 Rule 97, 99 and 101 moved by the decree holder respondent No.1 was barred by limitation in view of the provisions of Article 129 of the Limitation Act?

7. It is vehemently argued by Mr. R.L. Sood, learned Senior Advocate, assisted by Mr. Arjun Lall, Advocate representing the objector, that since the decree holder admittedly is a trust, therefore, suit itself was not maintainable under Sections 47 and 48 of the Indian Trust Act and, therefore, judgment and decree so passed by the learned trial court as affirmed by the learned first appellate court was without jurisdiction and being coram non judice cannot be executed. He would further argue that an application under Order 21 Rules 97, 99 and 101 CPC being time barred ought to have been dismissed. On the other hand, Mr. Jeevesh Sharma, Advocate, representing the decree holder, would argue that the judgment and decree passed in the suit has attained finality and the question raised by the objector, who was otherwise stranger, is not at all maintainable as the same would amount to reopening of the decree.

8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. SUBSTANTIAL QUESTIONS OF LAW NO. 1 and 2:

9. Since substantial questions of law No. 1 and 2 are instinctively interlinked and interconnected, therefore, they are taken up together for consideration and are being answered by common reasoning.

10. The learned trial court while adjudicating the suit had framed the following issues:-

1. Whether the plaintiff has no locus standi? OPP

2. If issue No.1 is proved, whether the plaintiffs are entitled for the decree of possession? OPP

3. Whether the plaintiffs are entitled for the relief of injunction? OPP

4. Whether the plaintiffs are entitled for damages as claimed? OPP

5. Whether the suit is bad for non-joinder of necessary parties? OPD

6. Whether the suit is barred by limitation? OPD

7. Whether the defendant No. 1 has become owner of the suit land by way of adverse possession? OPD-1

8. Whether the defendants No. 2 and 3 have become owners of the suit land by way of adverse possession? OPD 2 & 3.

8-A. Whether the defendant No.1 is a tenant in the suit land as alleged, if so, its effect? OPR-1.

9. Relief.

11. Issues No. 1 and 5 were tried together as it was specific contention of the judgment debtors therein that the decree holder (plaintiff No.2) was not a trustee of the trust and thus had no locus standi to file the suit on behalf of the trust.

12. The learned trial court after placing reliance upon the Full Bench judgment of the Gujarat High Court in Atma Ram vs. Gulam Hussain, (1973) AIR Gujarat 113 and Division Bench Judgment of Delhi High Court in Duli Chand vs. Mahabir Prasad Trilok, (1984) AIR Delhi 145 (D.B.) and after detailed discussion held as under:-

32. The position of an individual co-trustee with respect to trust, has been held like that of a co-owner with respect to joint land. This is the essence of ratio of Gujarat and Delhi cases. If this preposition of law is accepted, then a co-trustee should be able to file a suit for possession against a trespasser provided he recognizes the title of the trust to the suit property and does not set up exclusive title in himself. This is so, because it has been held by our own Hon'ble High Court in AIR 1981 HP 20 that a co-sharer can file a suit for possession of the joint land against a trespasser without impleading other co-sharers provided he does not deny the title of other co-sharers to the joint land.

13. The judgment debtors thereafter filed an appeal against the said judgment and decree passed by the learned trial court wherein the findings on all the issues including issues No. 1 and 5 were assailed and the learned first appellate court vide detailed discussion in paragraph 16 held that plaintiff No.2 as secretary of the trust was competent to file the suit.

14. Admittedly, the judgment and decree passed by the learned first appellate court has attained finality and therefore, questions No. 1 and 2 are decided against the objector.

SUBSTANTIAL QUESTION OF LAW NO.3:

15. Order XXI Rule 11 (2) CPC, which provides for the person who should sign and verify the execution proceedings, reads as under:-

(2) Written application-Save as otherwise provided by sub-rule(1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely-

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any) awarded;

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required whether-

(i) by the delivery of any property specifically decreed;

[243] [(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require.

16. No doubt, Section 47 of the Indian Trust Act prohibits a trustee from delegating the powers, but the explanation to Section 47 reads as follows:-

Explanation.--The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section.

17. The aforesaid explanation makes it evidently clear that ministerial acts can be performed by the person, who is authorized by the trust to do the needful.

18. The learned counsel for the objector has not been able to place on record any material to point out that the Secretary through whom the execution petition had been filed was either not competent or authorized to file an execution petition or that the Secretary was not acquainted with the facts of the case and could not, therefore, have filed the execution petition.

19. A bare provisions of Section 47 of the Indian Trust Act and Order XXI Rule 11(2) CPC, when read conjointly, clearly provides that the Court has to satisfy itself with the authority of the person, who has filed the execution petition.

20. In Kopargaon Big Bagayatkar Vividha Karyakari Sahakari Society Ltd. vs. Deorao Sakharam Pawar and anr., (1976) AIR Bombay 333, it was held that it is not necessary that the decree holder should sign tan execution petition, but the court should be satisfied that the the person signing the execution petition was acquainted with the facts of the case.

21. In view of the aforesaid exposition of law, it is crystal clear that the execution petition preferred by Secretary of the decree holder was proper and legal and it was not necessary for the decree holder to have signed the execution petition. Accordingly, this substantial question of law is answered against the objector.

SUBSTANTIAL QUESTION OF LAW NO.4:

22. First of all, a stranger/obstructer does not have any right of audience in execution proceedings before the executing court.

23. The learned Single Judge of Rajasthan High Court in Shri Jai Prakash vs. Khimraj and anr., (1991) AIR Raj. 136 has held that plea of limitation under Order XXI Rules 97, 100 and 103 cannot be raised by stranger obstructionist as such plea is only available to the judgment debtor. Admittedly, the objector herein is not a judgment debtor and, therefore, such plea is not available to him. It is apposite to reproduce here relevant observations, which read thus:

23. The petitioner has mentioned in his memo of appeal that he also filed an application under Order XXI, Rule 97, CPC stating therein that the execution petition was filed beyond two years of the passing of the decree and, therefore, a notice has to be issued to the judgment-debtor. That plea was not specifically pressed during the arguments. Still, it may be stated that this plea is not available to the Obstructor but it is available to the judgment-debtor. Secondly, in this case, in the earlier execution petition, warrant for delivery of possession was issued against the judgment-debtor and, therefore, the case is fully covered by the proviso of Rule 22 of Order XXI, CPC and so, that plea also has no legs to stand.

24. To the similar effect is the judgment of the Full Bench of the Karnataka High Court in V.K. Rama Setty vs A. Gopinath, (1998) AIR Karnataka 186.

25. I am in respectful agreement with the view taken by the Rajasthan and Karnatka High Courts respectively. This substantial question of law is accordingly answered against the objector.

26. Now, adverting to the facts of the instant case, I have no hesitation to conclude that the very purpose of filing of the present appeal is to delay the proceedings and objector has tried to turn this litigation into fruitful industry and this obviously cannot be permitted by this Court; and rather this practice has been seriously deprecated by the Hon'ble Supreme Court in South Eastern Coalfields Limited vs. State of M.P. and others, (2003) 8 SCC 648, wherein it was held as under:

28. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.

27. It is, therefore, the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive. In Indian Council for Enviro-Legal-Action vs. Union of India and others, (2011) 8 SCC 161, it is noticed that conduct of the parties is to be taken into consideration and it was held as follows:-

223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdi

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ction of the court. 2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party. 3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court. 4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. 5. No litigant can derive benefit from the mere pendency of a case in a court of law. 6. A party cannot be allowed to take any benefit of his own wrongs. 7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. 8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts. 28. From the aforesaid discussions, it is evidently clear that this appeal not only sans merit, but the intent behind filing this appeal is also not bonafide as the only endeavour of the objector appears to prolong the litigation so as to enable him to reap the benefits from the land and thereby convert this litigation into a fruitful industry. 29. In view of aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed with costs of Rs.25,000/- to be paid to the decree holders before 21.5.2019. Pending application(s), if any, also stands disposed of.
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