NABLA BANOO Vs. GH ALI

JUDGEMENT

(1.) WAY back in December, 1968 petitioner herein instituted a civil suit against respondents their predecessors in interest for partition of moveable and immoveable property comprising of a three storied house 24 x 16 and land measuring 134 kanals and seven marlas situated at Buchwara, Srinagar under of Khewat No. 16 and Khasra No. 104, 151 to 155 158, 169, 180, 18, 218, 228, 240, 278, 281, 303, 308, 311, 272, 373, 287, 452, 516 and 520 (old), Khewat No.14, survey Nos, 104, 591/151, 153, 593/152, i54, 165, 168, 631/169, 180, 187, 238, 240, 272, 278. 281, 634/303, 677/613/387, 678/613/387, 679/613/387, on various grounds mentioned in memo of plaint mainly based on inheritance. While the suit was being tried in this court on original side with issues framed as far back as in August, 1969 and plaintiff leading her evidence, under interim order of 9.12.1970 while observing that there were chances of amicable settlement this court deferred the trial and on application of parties appointed late Mr. S.M. Rizvi, the then Mobile Magistrate, Srinagar as arbitrator vide interim order dated: 10.12.1970, On his refusal to act as such, vide order of 18.4.1971 Late Sh. Justice G.M. Mir, then District and Sessions Judge, Baramulla was appointed as sole arbitrator with his consent. On 22.2.1979 when the arbitrator so appointed was a Judge of this Court, the matter was listed before His lordship who directed placement of the file before Honble Chief Justice for assignment of the case to some other Bench whereupon vide interim order dated 9.4.1979 it appears to have been assigned to the then Justice Mufti Bahau -ud -din who vide interim order dated: 2.5.1979 appears to have declined hearing the matter for personnel reasons where after it appears to have been referred back to the then Justice G.M.Mir who after prolonged proceedings sometime in May, 1973 adopted the issues already framed as points of reference and continued with arbitration proceedings, during course whereof on 20.7.1974 after agreement of parties, His lordship appointed one Munshi Ahmad Ali as Commissioner to report regarding the area of suit land in possession of defendant Nazir Ahmad Wani. Finally on 13.11.1979 the learned arbitrator appears to have concluded the matter and while observing that the dispute between parties essentially related to the estate of one Samad Bhat their great grant ancestor finally opined that defendants 1 to 7 in the suit could through their mother Mst. Sara Bibi held entitled to possess 8 kanals of land while as a matter of fact 10 kanals and 5 marlas had been found to be in their possession who accordingly were in possession 2 kanals and five marl as excess land and finally passed the following award : "In partial satisfaction of her claim I award to the plaintiff 2 kanals and five marlas of land situated at Buchwara, Srinagar at present in possession of defendants Ghulam Ali, Ghulam Mohammad, Mohammad Amin and Nazir Ahmad as shown at mark "D" in the report EXD4 of the above said report, of Commissioner marked as EXD5. This share of the plaintiff will be from the portion situated at Gagribal road Srinagar. The plaintiff will not be entitled to any share in building property mentioned in the plaint. The award is therefore submitted for further necessary action. Notice of submitting the award has been given to learned counsel to day", The award thereafter appears to have been made rule of the court, by this court (by the Bench presided over by the then Justice Sh. K.K. Gupta) on 21.9.1985 after hearing the counsel for parties thread bear in following terms: "I have perused the award. It does not suffer from any illegality or irregularity. As such it is made rule of the court. Let a decree in terms of the award follow" And thereafter the decree appears to have been drawn as follows: "In the above titled COS a decree in terms of the award is passed as under: "Two kanals and five marlas of land situated at Buchwara, Srinagar are awarded to Nabla Banoo which is at present in possession of defendants Ghulam Ali, Ghulam Mohammad, Mohammad Amin and Nazir Ahmad shown as mark "D" in the report EXD4 of the Commissioners report marked as EXD5. This share of the plaintiff will be from, the portion situated at Gagribal road, Srinagar. The plaintiff shall not be entitled to any share in building property mentioned in the plaint." The said judgment/decree appears to have been appealed against by both parties through CIA "No. 17 of 1985 purporting to have been filed by present petitioner and CIA No. 97 of 1985 filed by the respondent Ghulam Ali. Both appear to have been disposed of by a Division Bench of this court vide order dated: 12.8.1999 in following terms: "We have found that the parties failed to file objections against the award before the Single Judge resulting in dismissal of their applications. "No evidence was led in support of their case, with the result the Single Judge had no option but to make award rule of the court. This apart, Section 17 of the Arbitration Act makes it incumbent to prefer appeal for setting aside the award or remit the same to the arbitrator for consideration. Therefore, what emerged out of these appeals is that there is no merit in both of them and the same are dismissed." With that concluded the first round of substantial litigation after covering 31 years of the parties in this court.

(2.) AFTER dismissal of both the appeals and conclusion of the litigation as aforesaid the petitioner naturally sought execution of the judgment/decree purporting to have been passed by this court in confirmation of the arbitration award through and execution petition No.

(3.) OF 2000 in this court which was vide interim order dated: 21.01.2001 transferred to the court of Pr. District Judge, Srinagar and received there on 9.2.2002 where the proceedings commenced. Perusal of the execution application reveals that after giving details of the final judgments/decree the petitioner sought execution thereof by delivery of possession of land measuring 2 kanals and five marlas as described in the arbitration award aforesaid to be followed by an entry in the revenue records accordingly which was objected to by others side inter alia on the ground that the valuation was not maintainable delivery of possession of the land mentioned therein as no survey numbers had been mentioned and secondly that the award did not satisfy requirement of Or, 21 Rule 12 CPC and as such the decree was unexecutable under Or.21 Rule 35 CPC as also prayer for execution was time barred. Finally the Court disposed of the execution proceedings in following terms: "Heard counsel for parties at length and perused the whole file including the main file. A perusal of the decree sheet framed by Honble High Court on 21.9.1985 shows that the decree is not of possession but only the land mentioned in the decree has been awarded to the present applicant/plaintiff while form of decree sheet is such that it can not be executed by delivery of possession at all in view of the settled law that where a party wants to get possession under a decree, the decree must be one where delivery of possession of immoveable property has been ordered not merely an affirmation of plaintiffs right. The present decree is neither for possession nor for partition of property as prayed for by plaintiff in the main suit thus same cannot be executed in the present form. The present application, therefore, is not maintainable. It is, therefore, dismissed. In view of this main ground there is no need to go to other grounds raised by the judgment debtors. File be consigned to records." And thus ended the plaintiffs around 40 years long battle for her share in the property. 3. Aggrieved by aforesaid order of executing court the petitioner assails it through this revision petition on the ground that learned executing court was wrong in fact and law while concluding that the decree was not executable because the admitted case of the parties being the property was held by defendants in joint possession with plaintiff, as co -owner she had right of joint possession over the property and as such there was no need of a separate direction for delivery of possession and as such the award and decree passed was not appreciated by the court below in proper perspective. During course of submissions while petitioners counsel has reiterated and further elucidated the contents of revision petition learned counsel for respondent has defended impugned judgment of executing court by stating that the same was well placed on fact and law because the decree under execution was purely declaratory and the executing court could not travel beyond that as petitioner/plaintiff was disabled from seeking execution thereof by the possession of decretal land.