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LEKH RAJ & ORS versus RANJIT SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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Lekh Raj & Ors v. Ranjit Singh & Ors - CR-3823-2005 [2006] RD-P&H 4622 (21 July 2006)

In the High Court of Punjab and Haryana at Chandigarh

C.R.No.3823 of 2005(O&M)

Date of decision: 08-2006

Lekh Raj and others ..........Petitioners Versus

Ranjit Singh and others ..........Respondents CORAM: Hon'ble Mr.Justice Vinod K.Sharma
Present: Mr.Arun Jain, Advocate, for the petitioners.

Mr. R.C.Chaudhary, Advocate

Mr. Vimal Kumar Gupta, Advocate.

VINOD K.SHARMA,J.

The present revision petition has been filed against the order 12-05-2005 passed by the learned Civil Judge ( Senior Division), Jagadhri, rejecting the objections filed by the judgment-debtors to be frivolous and the execution application filed by the decree holders was accepted. The said order was confirmed by the Additional District Judge, Jagadhri, vide order dated 16-07-2005.

The decree holders filed an execution application against the judgment- debtors for delivery of possession to them in execution of the judgment and decree dated 14-05-1965 on payment of Rs. 2,000/- and sought issuance of warrant of possession in their favour,

In the execution application, the decree holders claimed that they filed a suit for declaration that the sale deed of land bearing Khasra Nos. 1//19, 1//2, 1//23, 1//24 and 4//2 executed by Kanshi Ram since deceased in favour of defendant No.1 -Lekh Raj shall not effect their rights of inheritance after the death of Kanshi Ram.

C.R. NO.3823 of 2005 (O&M)

The suit was partly dismissed and an appeal was filed in the Court of shri Mohan Lal Jain, Additional District Judge (II), Ambala vide Civil Appeal No.63/13 of 1964 and the said appeal was allowed on 14-5-2006. The learned Additional District Judge granted a decree of declaration that the sale of land in dispute by defendant No.2 therein in favour of defendant No.1 shall not effect the right of inheritance after the death of their fther Kanshi Ram and they shall be entitled to its possession on his death on payment of Rs. 2,000/- to defendant No.1.

Defendant No.1 transferred the suit land in favour of his sons namely Nasib Singh, Hari Chand and Tejpal Singh, who were respondent- judgment-debtors No. 2 to 4 in the execution application, by way of civil court decree dated 29-3-1997 and the mutation was sanctioned in their favour. It was for this reason that they were impleaded as respondent Nos.2 to 4.

The decree holders claimed that Shri Kanshi Ram had died on 18th

of July 2001 which entitled them to take possession of the suit land by depositing a sum of Rs. 2,000/- as per judgment dated 14-5-1965. amount of Rs 2,000/- was tendered to the respondent-judgment-debtors and a request was made to deliver the possession of the suit land to them.

However, the respondent-judgment-debtors refused and, therefore, the execution application was filed.

The said execution application was contested by Shri Lekh Raj by taking preliminary objection qua maintainability, locus-standi and concealment of true facts. It was alleged that the execution application was hopelessly barred by time.

C.R. NO.3823 of 2005 (O&M)

It was further the case of the respondent-judgment-debtors that father of the decree-holders after selling the property in dispute had purchased another property by way of pre-emption and by way of sale deeds. As such the alleged decree was null and void and was not executable at all.

It was also the case of the judgment-debtors that the decree- holders had not deposited the amount due within the requisite time, as such, had no right, title or authority to file an execution application. It was also claimed by the judgment-debtors that they had improved the quality of suit land by spending huge amount from their own pocket in the shape of installing a tubewell, levelling of land and by putting fertilizers etc. They made it cultivable and, therefore, had a natural attachment with it.

Therefore, they could not legally be asked to hand-over the possession to the decree-holders. It was further claimed that they had planted the poplar and safeda trees in the suit land which were well matured and they have got every right to cut and remove the said trees. They also claimed compensation with regard to the improvement of the suit.

The next objection raised by the judgment-debtors was that the suit property was joint with other co-sharers and until and unless the same was partitioned , the decree holders had no right, title or authority to file the execution application or claim possession of the suit land. It was also claimed that by way of family settlement, the suit land was given to other respondents.

On merit, it was contended that another suit was pending in the Court of Mrs. Anita Dahiya, Additional Civil Judge (Sr. Divn.) Jagadhri C.R. NO.3823 of 2005 (O&M)

and appeal against the dismissal of the injunction application was pending in the Court of Shri D.S. Sheoran, Additional District Judge, Jagadhri. The other averments in the execution application were denied.

Respondent No.2 and respondent Nos.2 and 4 filed their separate objections wherein they had taken similar stand as taken by respondent No.1 and claimed that they had got this land by way of family settlement under the Civil Court decree and, therefore, holding the land as absolute owners without any obstruction. On this ground, the execution application was sought to be dismissed.

The aforesaid objections were contested by the decree-holders and it was claimed that Ranjit Singh, Ajaib Singh and Sat Pal Singh, sons of Kanshi Ram, were only legal heirs of Kanshi Ram and that they had deposited the amount within the requisite time and challan was also filed. It was claimed that the execution application was filed within time and that they were entitled to possession of the suit land. The claim of compensation by the judgment-debtors was denied and it was claimed that the decree wa not null and void. Their right to cut the trees was also denied.

The learned executing Court considered the said objections and noticed that though the suit filed by the decree-holders was dismissed by the learned Judicial Magistrate Ist. Class, Jagadhri on 27-11-1963. However, in appeal filed against the said judgment and decree,the earned Additional District Judge (II), Ambala, vide his judgment and decree dated 14-05-1965 had allowed the same by passing a decree reproduced below:- "The findings of the trial Court that a sum of Rs. 5000/- was proved to have been paid to the vendor by the vendee and a sum of Rs. 2000/- was alleged to have been proved to be for C.R. NO.3823 of 2005 (O&M)

legal necessity have not been contested before me. No other finding was disputed. The plaintiffs are thus entitled to a decree for declaration as also a decree for pre-emption. In view of my findings above, I , therefore, hereby setting aside the judgment and decree of the trial Court accept the appeal and grant the plaintiffs aa declaration that the sale of the land in dispute by defendant No.2 in favour of defendant No.1 shall not affect lthe rights of inheritance after the death of their father Kanshi Ram and that they shall be entitled to its possession on his death on payment of Rs.2000/- to defendant No.1. In case they do not want to avail of the decree as is granted to them for declaration, they shall be entitled to possession of the land in dispute on payment of Rs. 5000/- to defendant No.1 which shall be deposited by them on or before 14/5/65. The parties shall bear their won costs throughout."

The learned executing Court observed that the judgment and decree passed by the learned Additional District Judge (II), Ambala, gave the following two reliefs:-

" (i) The sale of land in dispute by defendant No.2 in favour of defendant No.1 shall not affect the rights of inheritance after the death of their father Kanshi Ram and that they shall be entitled to its possession on his death on payment of Rs. 2,000/- to defendant No.1.

(ii) In case they do not want to avail of the decree as is granted to them for declaration, they shall be entitled to possession of the land in dispute on payment of Rs. 5000/- to defendant No.1 which shall be deposited by them on or before 14-5-1965."

It was further observed by the executing Court that the decree- holdlers did not avail of the decree for pre-emption as they did not C.R. NO.3823 of 2005 (O&M)

deposit a sum of Rs. 5,000/- before the stipulated date. Therefore, it was held that they had the right to enforce and execute the decree for declaration after the death of their father Kanshi Ram and they were held entitled to possession of land on payment of Rs.2,000/- to defendant No.1. It was also observed that this relief was available to them after the death of Kanshi Ram as the learned Additional District Judge had observed that the sale land shall not affect the rights of inheritance after the death of their father Kanshi Ram.

The executing Court also held that Shri Kanshi Ram had died on 18-7-2001 as per the death certificate issued by Registrar, Births and Deaths, Yamuna Nagar, which was placed on record and, therefore, it was held that they were read to execute their part of decree commenced from the date of his death i.e. 18-7-2001 The executing Court further held that , as the execution petition was filed on 4-8-2001, the same was well within the period of limitation and it further held that the stand of the judgment- debtors that the decree to be executed had become time barred was devoid of any merit. The contention of the learned counsel for the judgment- debtors that the decree has become unexecutable as the father of the decree-holders after selling the property in dispute had purchased another property by way of pre-emption and sale deeds was also rejected on the ground that the same was against the spirit of the judgment and decree passed by the learned Additional District Judge. The learned executing Court relied upon the judgment of this Court in Gurcharan Singh Vs.

Bhag Singh, 2004 (1) P.L.R. 349 to contend that the limitation for filing a suit by a reversioner was to start from the date of death of original owner.

C.R. NO.3823 of 2005 (O&M)

The learned executing Court by relying on a judgment reported in (1969) 2 Mys. L.J.273 held that for determining an application under Order 21 Rule 35 of the Code of Civil Procedure the Court was only to examine whether the decree-holder was entitled under the decree to possession of the property and in case he was found entitled to by the executing Court, the warrant of possession cannot be declined merely on the ground that some third party asserts that he was in actual physical possession of the property. It was held that 3rd party cannot object to the

issuance of warrant of possession.

The contention of the learned counsel for the judgment-debtors regarding improvement of land and their claim to have come become owners under the decree passed by the civil Court was also rejected by relying on the judgment of this Court in Santa Singh & others Vs.

Darshan Singh & others, 1998 (1) PLR 651. It was held that the transfer in favour of judgment-debtors Nos. 2 to 4 was hit by the principle of lis pendens.

The learned executing Court rejected the contention of the judgment-debtors that they were entitled to retain the possession of the property in dispute under the court decree holding therein that the same was transferred by way of a consent decree with malafide intention and, therefore, the same would not come in the way for issuance of warrants of possession.

The claim regarding the improvement of the land was rejected by holding that if the judgment-debtors had improved the suit land,they must have enjoyed the fruits therefrom for this period and t it was held that C.R. NO.3823 of 2005 (O&M)

this fact does not in away disentitle the decree-holders from taking possession of the suit land.

In the appeal filed by the judgment-debtors besides taking objections which were rejected by the executing Court, it was contended that the learned executing Court wrongly held that the decree was for possession, but in fact it was only a decree of declaration to the effect that the sale would not affect the right of inheritance of the decree-holders after the death of their father Kanshi Ram. It was contended that the sale deed in favour of the judgment-debtor Lekh Raj was never set aside. It was further contended by the judgment-debtors that it is yet to be settled that as to who has inherited the estate of Kanshi Ram. It was also claimed that as there were 12 Class-1 heirs of Kanshi Ram, therefore the decree-holders cannot claim more than 1/4th

share in the suit land.

Before the Appellate Court it was pleaded by the appellants and proforma respondent No.4, that the decree-holders had filed a suit for possession wherein material questions had to be decided and, therefore, it was not open to the executing Court to decide the objections. It was also contended that it was obligatory on the part of the executing Court to frame issues and by permitting the parties to lead their evidence, the objections were to be decided and could not be rejected as was done by the executing Court.

The said appeal was contested by the decree-holders by rasing a plea that the appeal against the order passed by the executing Court was not maintainable. According to them as objections were filed by the judgment-debtors under order 21 Rule 23 of the Code of Civil Procedure, C.R. NO.3823 of 2005 (O&M)

there was no provision of appeal against the order of the executing Court. It was also contended that proforma respondent could not be treated as third party as the judgments-debtors had no independent right over the suit property. Since they were claiming their rights through their father Lekh Raj, who was a judgment- debtor in this case, therefore, they were bound by the decree passed by the trial Court on 14-5-1965. The claim of the judgment-debtors before the Appellate Court was contested by the decree- holders on the same pleas which were accepted by the learned executing Court.

The contention of the judgment-debtors that they were third party and objections were to be treated under Order 21 Rule 91 of the CPC was rejected by holding that they had no independent right over the suit land as they were claiming the title over the suit land through his father Lekh Raj, the original judgment-debtor.

The learned lower Appellate Court even rejected the appeal on merits. The contention of the judgment-debtors that no physical possession can be given as the property was not partitioned, was rejected on the grond that once the judgment-debtors were claiming to be in actual physical possession of the property, it was not available to them to allege that only symbolical possession can be given in execution of the decree dated 14- 05-1965.

The learned lower Appellate Court also held that as far as the trees standing on the suit land are concerned, the judgment-debtors can be paid for the value assessed or these can be allowed to be cut and removed by them. Therefore, the same was treated to be causing no hindrance in C.R. NO.3823 of 2005 (O&M)

execution of the decree.

The contention of the judgment-debtors that the objections could not be rejected summarily was also rejected by holding that they had no independent right in the suit property as they were claiming their title through Lekh Raj, the original judgment-debtor.

The learned Appellate court also came to the conclusion that the transfer of suit land by Shri Lekh Raj in favour of his sons shall not affect the rights of inheritance of the decree-holders under the decree after the death of their father. It was also held that all the persons entitled to possession would inter se get their rights decided qua the property.

It was also held that the suit for possession filed by the decree holders had already been withdrawn. The question of limitation was decided in favour of the decree-holders by relying upon the judgment of this Court in Gurcharan Singh's case (supra).

In view of the above discussion, the appeal filed by the appellant-judgment-debtors was dismissed.

Mr.Arun Jain, learned counsel for the petitioners, vehemently argued that no warrant of possession could be issued in favour of the decree-holders as the decree was merely for declaration and, therefore, it was incumbent upon the decree-holders to have filed a suit for possession as declaratory decree was not executable. The learned counsel contended that reliance by the learned lower courts below on the judgment of this Court in Gurcharan Singh's case (supra) was misconceived as in that case the plaintiffs therein had filed a suit for possession of the suit land it was not a case wherein an execution application was moved. However, I find no force C.R. NO.3823 of 2005 (O&M)

in this case as the reading of the orders shows that the learned Courts below placed reliance on the judgment of this Court in Gurcharan Singh's case (supra) only to hold that the execution application was within limitation and did not hold that the decree-holders were entitled to possession in view of the law laid down by this Court in the aforesaid case. The reading of the judgments clearly shows that the Courts below had issued the warrant of possession of interpreting the decree as granted in favour of the decree- holders and not by placing reliance on the judgment of this Court referred to above as contended by the learned counsel for the petitioners.

The learned counsel for the petitioner also argued that the decree dated 14-5-2005 was not executable as it was merely a decree for declaration entitling the reversioners to claim possession after the death of their father and, therefore, it was incumbent upon the decree holders to file a separate suit for possession.

I have considered this argument raised by the learned counsel for the petitioners and do not find any force in the same. For the sake of repetition the part of the decree sought to be executed is reproduced below for ready reference:-

"The sale of land in dispute by defendant No.2 in favour of defendant No. 1 shall not affect the rights of inheritance after the death of their their father Kanshi Ram and that they shall be entitled to its possession on his death on payment of Rs.2000/-" The law of interpretation with regard to documents or judgments is very clear that original meaning has to be assigned to the documents or decrees passed by the courts below. The addition or C.R. NO.3823 of 2005 (O&M)

deletion can only be done if there is any ambiguity in the said decree/document. The reading of the decree leaves no manner of doubt that it is in two parts, the first part is for declaration to the effect that the sale of land in dispute shall not affect the rights of inheritance and the subsequent part of the decree gave right to the decree holders to seek possession on the death of their father on payment of Rs.2,000/- It is not in dispute that after the death of their father,the decree- holders within the period of limitation deposited a sum of Rs. 2,000/- and sought execution of decree by seeking warrant of possession. Therefore, the contention of the learned counsel for the petitioners that it is merely a decree of declaration cannot be accepted.

Mr. Arun Jain by relying upon the judgment of this Court in Anguri Devi Vs. Moti Ram, 2003 (1) RCR (Civil) 443, contended that as the benefit of a declaratory decree obtained by a reversionary heir in an action to set aside the alienation of ancestral property was to enure for the benefit of all persons, who would ultimately take the estate of the deceased would mean that the decree sought to be executed is merely a declaratory decree entitling all the reversions to claim possession. It is relevant to note paras 10 and 12 of the said judgment on which the reliance was placed by the learned counsel for the petitioners:- "10. The effect of earlier judgment Ex.P-6 that the alienation made Mam Raj could not enure beyond his life time. It means that after his death, the property would have become subject mater of inheritance to his legal heirs. MamRaj died in January 1979, leaving behind him the only surviving daughter (appellant). After his death, the appellant is his only legal heir under the Act of 1956, who can inherit his estate. Though it is C.R. NO.3823 of 2005 (O&M)

true that under the customary law a female heir cannot contest the alienation made by the vendor, but a declaratory decree obtained by a reversionary heir in an action to set aside the alienation of ancestral property will enure for the benefit of all persons, who ultimate took the estate of the deceased alienor.

The object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury in the interest of all the reversioners. The decree passed in suit suit removes the obstacle to the right of the reversioners entitled to succeed when the succession is open. The earlier judgment Ex.P-6 declared that after the death of Mam Raj, the sale made by him will not be binding on his heirs and the property will revert to his estate. The effect of that decree was merely to declare that by the sale interest conveyed in favour of the alienee was to enure during the life time of alienor. The net result therefore is inevitable that the property alienated reverted to the estate of Mam Raj at the point of his death and all persons, who would have taken his estate will be entitled to inherit the same. The fact that the appellant was not competent to file the suit to contest the sale made by her father, being female, is of no consequence, because the alienee had not subsisting interest after the death of Mam Raj. In this regard, I am supported by the Hon'ble Supreme Court in Giani Ram's case (supra). In that case,one Jawala sold some ancestral land without legal necessity. The alienation made by him was challenged by one of his sons Giani Ram under the customary law. His suit was decreed and the sale was declared to be without legal necessity and not binding on the right of the reversioners. Jawala died leaving behin him his widow, two daughters and three sons.

After his death, all his legal heirs filed a suit for possession, on the basis of above said declaratory decree. Initially, the trial court decreed the suit for half share qua three sons and suit for remaining half share qua widow and daughters was dismissed.

C.R. NO.3823 of 2005 (O&M)

In appeal, the first Appellate Court decreed the entire suit in favour of three sons holding that only sons were entitled to the ancestral property alienated by Jawala, as the widow and daughters were not eligible to challenge alienation made by him. In Regular Second Appeal, this High Court set aside the decree of first Appellate Court and restored the decree of trial Court by observing that under the Act of 1956, the daughters and widow can inherit the estate of Jawala, but they cannot take benefit of the declaratory decree obtained by one of the reversioners because under the customary law, female cannot contest the sale made by male owner. This Court also held that the widow and daughters have neither filed any appeal nor any cross-objection against the order of the trial Court as well as the first Appellate Court, therefore, qua them decree became final.

The Hon'ble Supreme Court modified the decree of this Court and a decree for possession of the suit land in favour of all the legal heirs of Jawala was passed. While allowing the appeal, the Hon'ble Supreme Court Observed as under: "The effect of the declaratory decree in suit No.75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure during the life time of the alienor. The conclusion is, therefore, inevitable that the property alienated reverted to the estate of Jawala at the point of his death and all persons, who would, but for the alienation, have taken the estate will be entitled to inherit the same. If Jawala had died before the Hindu Succession Act, 1956, was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved, by virtue of Sections 2 and 4 (1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920, the wife and the daughters C.R. NO.3823 of 2005 (O&M)

of Jawala were incompetent to challenge the alienation of ancestral property by Jawala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force.

The second ground on which the learned Judge as founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jawala had died filed the suit claiming possession of the entire property from the alienee. That suit was decreed by the trial Court in favour of the sons only to the extent of a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because "only those persons can bring a suit for possession on the death of Jawala, who had the right to challenge the alienation made by Jawala." In appeal the District Court granted a decree for possession of the entire property on the view that the alienee had no subsisting interest after the death of Jawala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jawala were not entitled to any share in the property. According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred an appeal or filed cross-objections to the decree appealed from. The sons, daughters and widow of Jawala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees are unable to convince the Court that they had any subsisting interest in the property in dispute after C.R. NO.3823 of 2005 (O&M)

the death of Jawala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jawala in that property."

This judgment was further followed by the Hon'ble Supreme Court in Teg Singh's case (supra) by observing as under:- " The decision of this Court in Giani Ram Vs. Ramji Lal, (1969) (3) SCR 944 : (AIR 1969 SC 1144) may, with advantage be referred to on this point. Under the customary law of the Punjab, the wife and daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of alienor. But the reversioner, who was entitled to challenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienor's death. It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of alienor and therefore, all persons, including the wife and the daughters of the deceased, were entitled to the benefit of that restoration.

Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daughters, who also became heirs alongwith the sons under the Hindu Succession Act, 1956 were held entitled to obtain possession of the ancestral property. Mr.

Juneja attempted to get over the effect of this decision by invoking the provisions of S.8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him according to custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation.

Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having C.R. NO.3823 of 2005 (O&M)

been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit. The short answer to this contention is that the decree would enure for the benefit of all persons, who are entitled to share in the property of the deceased as it existed at the moment of his death. Since Mula's property stood freed from the encumbrance of the gift at the moment of his death,respondent as the adopted son would be entitled to the possession of the gifted property." "

12. In view of the aforesaid legal position, it has to be examined as to what is the effect of the observation made by this Court in the earlier judgment Ex.P6 on the maintainability of the present suit. Both the Courts below have dismissed suit of the appellant on the ground that she cannot take the benefit of the earlier judgment Ex.P6, because in the said judgment, it was specifically mentioned that the daughter of Mam Raj will not take any benefit of the decree, which will enure only for the benefit of reversioners. Counsel for the respondents also raised similar arguments in support of the decree passed by the Courts below. In my view, there is no substance in the above said reasonings. The Courts below have ignored the very important fact that the appellant was not a party to the earlier suit and she is not bound any observation made in the earlier judgment Ex.P6. The finding recorded or any observation made therein will not operate as res judicata under Section 11 of the Code of Civil Procedure against the appellant. Such observations will have no effect on the rights flowing to her under the Act of 1956 on the death of her father. The only effect of the earlier judgment Ex.P6 was to declare that the alienation made by Mam Raj would not be binding on the reversions after his death. Whosoever, reversioner is, entitled to inherit the property of the deceased would inherit the same. In support of C.R. NO.3823 of 2005 (O&M)

this view, taken by me, I am supported by the following observations of the Hon'ble Supreme Court in Teg Singh's case (supra):

" ............ when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him according to custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation.

Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit. The short answer to this contention is that the decree would enure for the benefit of all persons who are entitled to a share in the property of the deceased as it existed at the moment of his death. Since Mula's property stood freed from the encumbrance of the gift at the moment of his death,respondent as the adopted son would be entitled to the possession of the gifted property."

13. I also do not find any force in the submission of the learned Counsel for the respondents that the present suit filed by the appellant is like execution of the earlier decree and the same can be filed by only that person in whose favour the said decree was passed. Similarly, it cannot be accepted that the earlier decree was a conditional decree and the appellant is bound by the condition imposed in that decree. I have already discussed in detail about the effect of earlier decree. In view of that, there is no force in the contention raised by the larned counsel for the respondents.

In view of the above, the appeal is accepted, impugned judgment and decrees, passed by both the Courts below are set aside and the suit of the plaintiff-appellant for possession is decreed with no order as to costs."

C.R. NO.3823 of 2005 (O&M)

However, I do not feel that this judgment in any way advances the cause of the petitioners. In the said judgment, this Court has only held that alienation made was not to enure beyond his life time and the property would become subject matter of inheritance. However,in the present case besides declaration, decree for possession on payment of Rs.2,000/- was also passed. The learned Appellate Court below in the present case has categorically held that the applicants decree-holders in the executing Court were to take the possession of the property on behalf of the reversioner and, therefore it would be for them to decide inter se about their shares and this cannot be a ground to deny the execution of the decree on an application made by any one or more of them.

In view of what has been stated above, I do not find any merit in the present revision petition and dismiss the same with no order as to costs.

August 4 ,2006 (VINOD K.SHARMA)

'dls' JUDGE


Copyright

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