HASIMATHUNNISA BEGUM Vs. VITHAL RAO GANGAJI

JUDGEMENT

(1.) This revision petition is directed by the legal representative of the first defendant against the order of the IInd Asst. Judge, City Civil Court, Hyderabad in E. P. No. 79/71 appointing a Commissioner who recommended that the matter be referred to a valuer for working out equities in dividing the suit house. The circumstances leading to the revision petition briefly stated are these: The first respondent (plaintiff No. l) herein laid a suit against the defendants, the first defendant being the pre decessor in interest of the revision petitioner herein He also happens to be natural father of the second defendant. The suit was for reconveyance of suit house based on an agreement of conveyance. The trial court decreed the suit and this was confirmed by the first appellate Court. In a second appeal preferred by the second defendant in the suit, the decrees of both the courts were modified. The operative portion of the judgment in the Second Appeal reads as follows:-- "The plaintiffs will therefore be entitled to specific performance of the agreement Ex. A-2 only to the extent of the half share of the first defendant on payment of consideration So far as the question of possession is concerned, the result will be that the second plaintiff to whom the rights were assigned by the first plaintiff in Ex. A-3 will be entitled to a half share and joint possession on his payment of half of the consideration and execution of the sale deed by the first defendant. In other words, the second plaintiff (the assignee) will step into shoes of the first defendant on performing his part of the contract in terms of Ex. A-2. The first plaintiff will be accordingly entitled to the mesne profits to the extent of the half share of the first defendant. The decree of the Court below is accordingly varied and the suit decreed as per the above terms. Thus the High Court in the Second Appeal held that the second plaintiff (the assignee of the first plaintiff) is entitled to half share in the suit property which was held by the first defendant and also for joint possession on payment of the consideration and execution of the sale deed by the first defendant It is common ground that the second plaintiff had to file an Execution Petition and get the sale deed executed by the court as the first defendant did not execute the sale deed. However the salt deed was executed by the court on payment of the consideration amount. It is also the common ground that as the first defendant died this revision petitioner was brought un record as the legal representative of the first defendant. Since the sale deed was executed. the decree-holder sought permission covered by the sale deed. Though in the execution petition at first he sought only joint possession he filed an application for the appointment of a commissioner seeking to partition the suit property as a measure to have the property divided so that he may nave separate possession. It is relevant to note that the decree itself provided for joint possession and not for separate possession. The Commissioner opined that the suit property is capable of division rut that certain equities have to be worked out and that in order to work wt the equities it is better to have the opinion of an evaluator so that the necessary improvements required can be valued properly end in that manner both the shares can be equalised. Though it does not appear that this very revision petitioner took objection to the appointment of the Commissioner yet when the Commissioner filed his report he raised objections to the effect that the appointment of Commissioner itself is bad and that the question working out equities not arise. The trial Court over ruled the objections Hence this revision petition.

(2.) While it is contended for the revision petitioner that the remedy of the decree-holder seeking actual possession was by way of separate suit for partition consequent to the sale deed in his favour, as a result of the decree it was contended that what the trial court did was only in pursuance of the decree passed by the High Court and consequence of the contract of re-conveyance in his favour and that executing court is only acting in pursuance of the decree and the executing court is competent to take all incidental steps to put the decree-holder in physical possession of his half share given by dividing it if necessary.

(3.) It cannot be disputed that the terms of the decree as passed by the High Court in Second Appeal clearly envisages a decree for joint possession. It only provides for joint possession rd the plaintiff along with the second defendant. It does not provide for any separate possession of any of the plaintiffs. We are now on the question as to how a decree for joint possession is to be executed. Order 21 Rule 35 sub-rule (2) of Civil P C. lays down the provision as to how a decree for joint possession is to be executed. It reads as follows: "Where a decree is for the joint possession of immovable property, such possession shall he delivered by affixing a copy of the warrant in some conspicuous place oil the property and proclaiming by beat of drum, or other customary mode, at some convenient plate, the substance of the decree" The rule contemplates only a symbolical possession it does not contemplate the delivery of physical possession. It is useful to refer m this context, AIR Commentary by Chitaley to the said order. The relevant passage in Note 6 reads as follows: