Abdul Rehman Shora(D) By Lrs. & Ors vs State Of J & K & Anr

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 25 OF 2009 (Arising out of SLP(C) No. 22945 of 2007)

Abdul Rehman Shora (D) by LRs. & Ors. .... Appellants

Versus

State of J & K & Anr. .... Respondents

JUDGMENT

V.S. SIRPURKAR, J.

Leave granted.

2. Being aggrieved by the Order passed by the High Court in its

Revisional Jurisdiction and issuing certain directions, appellants have come

up before this Court. The appellants herein are the original plaintiffs and

the legal representatives of one of the original plaintiffs. First three

appellants are the original plaintiffs, while the other three are the legal

representatives of one Abdul Salam Shora, who was the original plaintiff

No. 2. During the pendency of this appeal, appellant No. 1 died on 0 2

28.11.2007. Vide order dated 25.3.2008, his legal representatives were

brought on record. They filed a suit for perpetual injunction against the

respondents/defendants, whose defence was that the appellants/plaintiffs

were encroaching upon the portion of land, which they alleged to have

purchased and which is adjacent to the land in question. The location,

identification and plaintiffs' title and possession over the suit land was not

controverted by the respondents/defendants in their written statement.

Two issues came to be framed and subsequently two additional issues also

came to be framed and ultimately, the suit was decreed, after about 14

years of its filing by the Court of Sub-Judge, Srinagar. Admittedly, this

judgment had become final, since no appeal was filed against this

judgment. However, since the respondents/defendants did not obey the

terms of the decree and did not allow the appellants/plaintiffs to fence the

land, which was in their possession and which was identifiable and

sufficiently delineated in the suit, Execution Application was filed in March,

1987 for issuing directions to the respondents/defendants to comply with

the terms of decree dated 18.10.1984. An objection came to be raised by

the Judgment-Debtors before the Executing Court that the decree was un-

executable, since the identity of the land in respect of which the decree

was passed, was itself not established. This objection was upheld by the

Executing Court by its order dated 21.6.1988. Against this order, a

Revision Petition was filed by the appellants herein before the High Court

vide Revision No. 153 of 1988. The Revision stood allowed by the High

Court by its judgment dated 25.8.1998, whereby, the order of the Executing 0 3

Court was set aside and the Executing Court was directed to proceed with

the execution of the decree. The High Court had observed in the judgment

that the Executing Court had not taken any steps to identify the suit land,

though the factors like extent and limits of the suit land were available. The

extent of the suit land was 1 canal 12 marlas, which was clearly given in

Khewat and Khasra Numbers, while its location was given as Brari Nambal.

It was found that no attempt was made by the Executing Court to look out

for situational and other identifiable features and locale of the land even

from the suit file, Revenue records including `Aksilatha'. Therefore, it was

recommended that a Commissioner should be appointed for local

investigation and if required, the oral evidence also could be taken. The

High Court further observed that even the site plan coupled with the

permission of Srinagar Municipality to raise the wall accorded to the decree

holders for fencing or walling of the suit land, was not taken into

consideration and it appeared that the Executing Court had gone by

whatever had been raised and stated by the Judgment-Debtors alone,

without arriving at an independent decision regarding executability of the

decree, in totality of facts and circumstances of the case. It was also

observed by the High Court that a decree cannot be defeated by reason of

technical or hyper-technical objection and those unconnected with the

realities on the ground level.

3. After this decision, the respondents/defendants filed an Application-

cum-Reply/Statement, in which it was stated that the appellants/plaintiffs 0 4

had grabbed the land of the respondents/defendants and under the garb of

the decree, they were trying to grab the land of the

respondents/defendants, adjacent to the suit land, which land was required

to be protected by the Court. It was, therefore, prayed that the Revenue

Authorities should be directed to demarcate the land, so that the decree-

holders are not able to grab the land belonging to the

respondents/defendants.

4. Much prior to this, Srinagar Municipality had granted permission to

the appellants/plaintiffs for fencing of the suit land, which was demarcable

and identifiable.

5. However, on this application, three persons were appointed as

Commissioners, two of them were from the Revenue Department and one

was from the Srinagar Municipality. They visited the spot on 7.12.2004 in

presence of the parties, when the Deputy Director of Estates Department

was also present on the spot, and after detailed inspection, the decreetal

land measuring 1 canal 12 marlas was found to be in possession of the

decree holders, i.e., the appellants. The decreetal land was also

demarcated. A site plan was prepared and the report was submitted to the

Court on 30.12.2004.

6. On receipt of this report, the Executing Court gave an opportunity to

the parties to file their objections to the abovesaid Report. The counsel for 0 5

the respondents/defendants appeared before the Court on 16.5.2005 and

he also had made a Statement that he was satisfied with the Report of the

Commissioners and he accepted the same as correct. Thereafter, various

orders were passed by the Executing Court, and the Court went to the

extent of issuing the coercive measures, compelling the

respondents/defendants to obey the decree. The first such order dated

14.12.2005 was not even challenged by the respondents in time, while by

the second passed order dated 27.6.2006, the Director of Estates was

directed to file an undertaking regarding the acknowledgement of the

decree and demarcation of land. It is against these orders dated

14.12.2005 and 27.6.2006 that a Revision Petition came to be filed before

the High Court, wherein, a totally new case was set up, which had no

connection with the execution matter. Very significantly, the

respondents/defendants had accepted the facts regarding the previous

Revision Petition No. 153 of 1988 decided on 25.8.1998. After filing of the

said Revision Petition, the respondents herein requested for placing certain

documents on record. According to the appellants/plaintiffs, the

respondents/defendants tried to manipulate the record, which could not

have been considered in the Revision Petition by the High Court. The

appellants/plaintiffs filed objections to the respondents' request of

production of documents, in which it was contended that the documents

can not be produced at the stage of Revision because by doing so, the

whole case was tried to be reopened, and there was an attempt on the part 0 6

of the respondents/defendants to adduce fresh evidence, which too was

manipulated and manufactured.

7. However, it seems that the High Court allowed that Application by its

order dated 23.11.2006, even without hearing the appellants. During that

time, no lawyer used to appear in the Court due to the strike call given by

the militants in the Valley of Kashmir. The Court went on to allow this

application, and the appellants filed a detailed Application on 4.12.2006 for

recalling the order dated 23.11.2006. Ultimately, it seems that the High

Court passed the final judgment on 7.9.2007, whereby, the High Court

gave a finding in the following words:

"Accordingly, and in view of what has been stated above, I feel that the decreetal land whatever and wherever it is, is yet to be duly identified and demarcated without which the execution proceedings run the risk of being misdirected. So before passing final orders hereupon, I feel it would be proper to seek suggestions of appearing sides regarding mode and method of identifying the decreetal land, so that the decree under reference is properly executed and without any further loss of time."

The appellants, feeling aggrieved by this, have come up before us.

8. The Learned Counsel appearing on behalf of the appellants pointed

out that there was no question of passing these fresh directions,

particularly, in the wake of finalized order in the earlier Civil Revision dated

25.8.1998. Our attention was invited to the said order and more

particularly, the observations made therein, to which we have already 0 7

made reference in the earlier part of the judgment. Even at the cost of

repetition, we must note that the High Court has clearly observed therein

as follows:-

"What the Executing Court has exactly failed to do is that it has not taken any steps to identify the suit land. The extent and limits of the suit land despite available evidence on record has not been determined. This aspect has not been considered. The extent of suit land (1 canal 12 marlas) is clearly given with Khewat No. and Khasra No. The location of the land is given as Brari Nambal. No attempt has been made by the Executing Court to look out for situational and other identifiable features and locale of the land even from the suit file, revenue records including `Aksilatha' and may be through appointment of Commissioner for local investigation and if required, on an enquiry where oral evidence could have been taken. Even the site plan coupled with permission of Srinagar Municipality to raise the wall accorded to the decree holders for fencing/walling of the suit land has not been taken into consideration. It appears that the Executing Court has gone by whatever has been raised and stated by the respondent- judgment Debtors, without arriving at an independent decision regarding the executability of the decree in the totality of facts and circumstances of the case. The Executing Court appears to have been in a hurry to rush to the conclusion that the decree is un-executable for the ambiguity and vagueness as sighted by the Executing Court."

The learned counsel pointed out that by these observations, the High Court

had finally held that the land had been finally identified and that the

Executing Court was duty bound to execute the decree in respect of such

identified land, which was clear from the Khewat and Khasra Numbers, as

also the permission granted by Srinagar Municipality to the appellants to

build a wall. Our attention then was invited to the Commissioners' Report,

wherein, as many as two officers of the respondents'/defendants'

department were present, as also the Deputy Director of Estates 0 8

Department. It was pointed out that the Commissioners' Report had finally

clinched the issue by locating the said land. Our attention was invited even

to the sketch map drawn by the Commissioners. It was then pointed out by

the learned counsel that the order dated 27.6.2006 read with order dated

14.12.2005, passed by the Executing Court, which was impugned before

the High Court in the Revision, was clear enough, inasmuch as, in the

order dated 14.12.2005, it was clearly mentioned that:-

"To cope up with the problem, this Court has also vide its order dated 10.7.2004 read with the order dated 16.8.2004 &

15.9.2004 got the decreetal land demarcated on 7.12.2004 through a commission for local inspection.

The Commission has already submitted its report on 31.12.20004, which is on the file. The commission in its report has submitted that the demarcation of the decreetal land was conducted on spot in presence of both the parties on 7.12.2004. It has been reported that Deputy Director, Estates (Mr. Farooq Ahmad Lone) was present on behalf of the judgment debtors. It has been unambiguously reported that the decree holder were found the recorded owners, as well as in the physical possession of the decreetal land which was demarcated.

It is most pertinent to mention that the Ld. Standing Counsel for judgment debtors on 16.5.2005 had admitted in the open court that he admits the report of the commission and has no objection vis-`-vis the same.

But, despite the demarcation of the decreetal land, the judgment debtors are persisting in their attempt of interference with the decreetal land by objections on spot the construction of the fencing wall by the decree holder around the decreetal land."

It was also found in that order that in spite of the demarcation of the

decreetal land, the Judgment-Debtors were persisting in their attempt of

interference with the decreetal land by objecting to the construction of 0 9

fencing wall. In that order, the Executing Court has very specifically

observed that the objections of the Judgment-Debtors were already stood

rejected by the High Court in its order dated 25.8.1998. Ultimately, the

Court went up to the extent of observing:-

"As such, the judgment debtor Director Estates, Srinagar against whom the decree is sought to be executed is liable to be committed to civil prison for compelling him to implement the decree. The office is directed to issue bailable warrant of arrest in the amount of rupees thirty thousand for his appearance in person before this Court on 18.1.2006, which shall be entrusted to the S.S.P., Jammu for execution. The warrant shall be accompanied with a copy of this order put up on 18.1.2006."

On the heels of this order came the order dated 27.6.2006, wherein, the

Executing Court noted that the Judgment-Debtor was not satisfied with the

demarcation, which was already conducted in the case during execution

process. It seems that on that day, the Judgment-Debtor was present

before the Executing Court, which had issued a non-bailable warrant

against him. The Court, then went on to observe that the conduct of the

Judgment-Debtors was contemptuous. The Court also noted that the

execution was pending disposal right from 4.3.1987 and that made it a

rarest of the rare case. It seems that these two orders were composedly

challenged before the High Court in the Revision. The learned counsel,

appearing on behalf of the respondents tried to feebly support the order of

the High Court. However, one look at the High Court suggests that the

High Court has gone on to reopen the whole process. It has undoubtedly,

made a reference to some documents and on the basis of those 0 10

documents, the Court seems to have observed in para 5 that the land

under reference was sold by one Mehraj-ud-din S/o Assad Shah and

Ghulam Nabi S/o Ghulam Shah to one Khazir Mohammad S/o Subhan

Parey, who sold the same to Government in January, 1969. The Court

further observed that the sale of land by aforesaid persons is shown to

have been effected sometime prior to December, 1968, when the

concerned Patwari had entered the mutation regarding it, while the other

part of the land comprising of Survey No. 1659/1667 measuring 6 marlas is

shown to have been mutated in favour of Government on 2.1.1960. A very

curious observation is made thereafter, by the High Court as under:-

"At the same time, however, as per copy of the judgment, the decree holders had before the trial Court in their plaint claimed ownership of the land under reference under a sale deed purported to have been executed in their favour by Ghulam Nabi Shah S/o Ghulam Ali Shah reportedly executed on 12th and registered on 28th March, 1968. Accordingly, the root of the controversy appears to be lying somewhere here. If Ghulam Nabi Shah aforesaid who is shown as son of Ghulam Ali Shah and Ghulam Shah in photocopy of mutation No. 1004 above mentioned had sold the land to Khazir Mohammad S/o Subhan Parrey aforesaid before it is sold to decree holders in March, 1968 then obviously their claim would be defective."

We do not know, as to how, such observations could be made regarding

the appellants'/plaintiffs' title, particularly, in view of the decree which had

finally been passed. This seems to be the main reason why the High Court

has interfered in the matter. Even the observations made by the High

Court in para 6 of the impugned judgment regarding the Commissioners'

Report, could not have been made, particularly, because the counsel for

the respondents/defendants unequivocally had accepted the 0 11

Commissioners' Report, which is clear from the earlier orders passed by

Executing Court on 27.6.2006 and referred to earlier. In short, the High

Court in its Revisionary jurisdiction has tried to go behind the decree, which

is not permissible. The High Court has also returned a finding of fact in

para 8 that the decreetal land was yet to be duly identified and demarcated

and, thereafter, the High Court has chosen to open a Pandora's box by

inviting the suggestions from both the sides for identifying the decreetal

land, which had already been identified by the Commissioners' report.

9. In short, the High Court has exceeded its jurisdiction in the matter

and has chosen to allow itself to be swept away by some documents,

which though available to the respondents/defendants, were never

bothered to be filed either while the Civil Suit was in progress or even

during the execution. We do not know how and under what provision, the

said documents came to be produced at the Revisional stage, even without

hearing the appellants/plaintiffs, who were parties to that Revision. In

short, the impugned order is clearly erroneous and suffers from the

jurisdictional error and the same is, therefore, set aside. The appellants

shall be entitled to proceed on the basis of the Commissioners' Report,

while the respondents/defendants would be bound by the subsequent

orders dated 14.12.20005 and 27.6.2006 passed by the Executing Court.

Under the circumstances, the appeal is allowed with costs.

......................................J. 0 12

(Markandey Katju)

......................................J. (V.S. Sirpurkar)

New Delhi;

January 7, 2009