GIAN CHAND Vs. TEJA SINGH

JUDGEMENT

(1.) THESE are decree -holder's second appeals (Execution Second Appeals Nos. 1152 and 1153 of 1965). He instituted two suits to pre -empt two sales in favour of Teja Singh judgment -debtor. The date of both the sales is November 9, 1960. Although the sale deeds were presented for registration on the same day, but they were actually entered in the registration books on February 9, 1961. The decree -holder instituted the pre -emption suits to pre -empt the two sales on November 13, 1981. One of the defences of the judgment -debtor was that the suits were barred by time and the ground given by him for that was that he was delivered possession of the lands on the date of the execution of the sale deeds, that is to say, on November 9, 1960. If that was so, the suits filed on November 13, 1961, were obviously barred by time. The judgment -debtor made a statement before the trial Court in those suits which were consolidated and tried together, that some 2 1/2 years before November 9, 1960, he was a tenant of the same lands under the vendor but as the vendor represented to him that he wanted to sell the lands and asked him to deliver back the possession of the same, he surrendered the tenancy and gave back the possession of the lands to the vendor. After his surrender of the tenancies and delivery of possession of the lands, he obtained sale deeds with an interval of about 2 1/2 years, and when he did obtain the sale deeds, by that time, he was put in physical possession of the lands by the vendor. The learned trial Judge in both the suits found the issue of limitation against the judgment -debtor and his decision on the issue was based on a finding of fact that the judgment -debtor was a tenant of the lands to the date of the execution of the two sale deeds on November 9, 1960. Having found that the judgment -debtor was a tenant of the lands on that date, he obviously reached the next irresistible conclusion that the judgment -debtor was not given physical possession of the lands on that date. So he proceeded to consider limitation from the date of the entry of the sale deeds in the registration books on February 9, 1961, and from that date the suits having been instituted on November 13, 1961, were obviously within time, the period of limitation for such a suit being one year from the date of such entry. The suits of the decree -holder were decreed against the judgment -debtor and the date of the decrees is November 21, 1961. The judgment -debtor went up in appeal and it appears that the appeals of the judgment -debtor were dismissed by the first appellate Court. It appears that there was only one second appeal by the judgment -debtor and that was Regular Second Appeal 658 of 1963 Teja Singh v. Gian Chand decided on May 21, 1964, and a learned Single Judge of this Court dismissed that appeal because the only point urged before him in that appeal was the claim by the judgment -debtor with regard to the improvements made by him on the lands Now, the appeal can be treated either one appeal against the decrees in both the suits or one appeal against the decree in one of the suits and the result will be that in so far as the second suit is concerned, the decree of the first appellate Court, not having been challenged in second appeal became final. In any event, both the decrees of the trial Court having been upheld in appeal became final.

(2.) THE decree -holder filed execution applications to execute the decrees. The judgment -debtor raised an objection under Section 47 of the Code of Civil Procedure that the decrees could not be executed against him because he was in possession of the lands in dispute as a tenant at the time of the sales, and, therefore, the decree -holder could not be delivered physical possession of the lands subject of the decrees. The executing Court dismissed the objection petitions of the judgment -debtor on a finding that he was not a tenant of the lands on the date of the sales, that is to say, on November 9, 1980. The orders of the executing Court dismissing the objection petitions of the judgment -debtor are dated April 27, 1964. It is not clear what happened to the execution applications of the decree -holder between that date and May 1, 1964, probably those execution applications were consigned to the record room either at the instance of the decree -holder or for his non -prosecution. In any event the decree -holder came forward with a second, set of execution applications to execute the two decrees on May 1, 1964. In those applications he sought aid of the Court to obtain possession of the lands subject of the decrees. Again the judgment -debtor filed objection petitions under Section 47 of the Code of Civil Procedure but this time taking a specific objection that on account of Section 17 -A(1) of the Punjab Security of Land Tenures Act, 1958 (Punjab Act 10 of 1953) he being a tenant of the lands at the date of the execution of the sales, the decrees could not be executed against him, there being express prohibition in that provision barring the execution of such decrees. The executing Court in its order of April 21, 1965, dismissed the objection petitions of the judgment -debtor on the ground that the same were barred by the rule of constructive res judicata. because the judgment -debtor could have raised this very objection in his earlier objection petitions to the first execution applications by the decree -holder. The judgment -debtor filed two appeals against the dismissal of his two objection petitions and the Appellate Court has, by its order of August 7, 1965, accepted both the appeals reversing the orders of the executing Court and, on allowing the objection petitions of the judgment -debtor, has dismissed the execution applications of the decree -bolder. The learned Judge in the first appellate Court noted that the trial Court, while decreeing the preemption suits of the decree -holder, gave a finding of fact that ,on the date of the sales the judgment -debtor was a tenant of the lands to which the decrees relate and that on the abjection petitions of the judgment -debtor in the first execution applications by the decree -holder the executing Court gave a finding of fact that on the date of the sale the judgment -debtor was not a tenant of those lands. He took cognizance of the argument on the side of the decree -holder that the finding of the executing court that the judgment -debtor was not a tenant of the lands on the date of the sales having become final, the question involved in the same cannot be re -agitated because of the operation of the rule of constructive res judicata applying to execution proceedings. But in spite of this he has accepted the appeals of the judgment -debtor and consequently his objection petition resulting in the dismissal of the execution applications of the decree -holder on the ground that Section 17 -A(1) of Punjab Act 10 of 1953 has an over -riding effect and these considerations do not weigh up against the positive provision in that section prohibiting the passing of a decree against a tenant -purchaser and, if a decree has been passed, prohibiting the execution of such a decree.

(3.) ON July 30, 1958, was promulgated the Punjab Security of Land Tenures (Amendment) Ordinance, 1958 (Punjab Ordinance 6 of 1958) which by Section 30 of it inserted new Section 17 -A in the Principal Punjab Act 10 of 1953. Subsequently the provisions of the Ordinance were enacted as a statute in the shape of the Punjab Security of Land Tenures (Amendment) Act, 1959 (Punjab Act 4 of 1959) and re -enacted new Section 17 -A with slight variation, in the principal Punjab Act 10 of 1953. Section 17 -A reads thus - -