GURDEV SINGH Vs. DIAL SINGH

JUDGEMENT

(1.) Letters Patent Appeals Nos. 590 and 591 of 1975 will now be disposed of by this judgment as they arise out of the same judgment by the learned Single Judge dated October 3, 1975.

(2.) The relevant facts, in brief, are that one Bishan Singh was the owner of the suit land. After his death, the respondents in both the appeals, inherited the same and filed a suit for possession against the appellants on the ground that the appellants were in wrongful possession without any right or title to the suit land. The appellants contested the suit and claimed the suit land as owners on the basis of a Will dated September 26, 1962, by the said Bishan Singh. The suit for possession was decreed by the trial Court in favour of the respondents. Appeals by the present appellants in the Court of the District Judge and subsequent thereto in the High Court did not succeed. Thus, the decree for possession in favour of the respondents became final. Thereafter, execution application was filed on October 3, 1969. In the said application, objection petition was filed by the appellants objecting to the executability of the decree on a number of grounds including the one that the judgment-debtors were tenants under the original owner Bishan Singh till his death and thereafter there being a relationship of landlord and tenant, the Civil Court had no jurisdiction to pass a decree for possession in favour of the respondents. The executing Court dismissed all the objections. Regarding the objection relating to the status of the appellants as tenants, it was held that this objection had not been taken in the suit and as such, the jurisdiction of the Civil Court passing the decree could not be assailed at the stage of execution. However, appeal by the judgment-debtors-appellants succeeded and the Additional District Judge deciding the appeal sustained the objection and held that the decree for possession could not be executed as the appellants were tenants in view of Sections 9 and 23 of the Punjab Security of Land Tenures Act (hereinafter called the Act). Thus, the execution application was dismissed. The respondents who were joint decree holders assailed the said judgment by two separate appeals. The learned Single Judge allowed both the appeals by the impugned judgment and affirmed the judgment of the executing Court and held that it was not open to the judgment-debtors-appellants to raise any objection to the executability of the decree against them on the ground of their being tenants prior to the passing of the decree. Aggrieved by the same, the present two letters patent appeals have been filed.

(3.) According to the emphatic contention of the learned counsel for the appellants, even if no objection to the jurisdiction of the civil Court to try the suit for possession against them was raised by the appellants as defendants during the trial of the suit on the ground of existence of relationship of landlord and tenant between the parties, the executability of such a decree can be challenged during the execution proceedings on the said ground. In the suit for possession filed by the respondents against the present appellants, they had claimed possession on the basis of ownership and the appellants as defendants disputed the claim of the plaintiffs-respondents, claiming themselves to be the owners on the basis of a Will by the original owner. It is not disputed that no objection in the alternative was taken that the civil Court had no jurisdiction to try the said suit as they were in possession of the suit land as tenants. This was not a case where the civil Court, trying the said suit which culminated in the decree which is now sought to be executed, had no inherent jurisdiction to try the suit. In any case, if the appellants wanted to dispute the jurisdiction of the civil Court on the basis of their tenancy, the proper stage to do so was at the trial of the suit. If such an objection had been raised, both the parties would have an opportunity to adduce relevant evidence and if the civil Court came to the conclusion that there was the relationship of landlord and tenant with regard to the suit land, it would have stayed its hands from proceeding with the adjudication of the case on merits. As the suit was tried only with regard to the claim of ownership by both the sides, the civil Court obviously had the jurisdiction. At the stage of the execution proceedings, the contention regarding jurisdiction of the civil Court cannot be gone into unless evidence is allowed to be adduced by both sides with regard to the alleged tenancy of the appellants on the suit land. In these circumstances, such objection to the executability of the decree cannot be allowed to be raised in execution proceedings in view of the clear and unambiguous ration of the decision of their Lordships of the Supreme Court in Vasudev Dhanjibhai Modi v. Rajbhai Abdul Rehman and Others, 1970 AIR(SC) 1475 relied upon by the learned Single Judge. The bald contention of the learned counsel for the appellants to the contrary has no merit. In the circumstances of this case neither Section 9 nor Section 23 of the Act is attracted.