JAGDISH DUTT AND ANR. versus DHARAM PAL AND ORS.

JAGDISH DUTT AND ANR. v. DHARAM PAL AND ORS. APRIL 12, 1999 [B.N. KIRPAL ANDS. RAJENDRA BABU, JJ.] Civil Procedure Code, 1908: Section 47, Order XX!, Rule 15-Hindu Undivided family-Suit for ejectment-Decree in favour of joint family- Execution of-Transfer of undivided interest of a coparcener in favour of C judgment-debtor-Effect of-Held, decree gets extinguished to the extent of interest so assigned and execution could lie only to the extent of remaining part of the decree~If the interest of the coparcener. in the property is not specifically defined; the Judgm_ent debtor cannot be, deprived of possession unless the . rights are appropriately ascertpined in a par.tition suit. Ap~llants instituted a suit for ejectment on the ground of arrears of rent and sub-letting by respondents No. 1 and 2. The said suit was decreed by Trial Court and appeals against the decree were dismissed. In the execution petition, respondent No. 2 claimed that he had purchased the undivided interest of the coparceners in the Hindu Undivided family of the decree E holder and therefore, actual physical possession cannot be given but only symbolic possession can be given to the appellant-decree holder. The Executing Court upheld the said contention. However, on challenge, the High Court setting aside the order of Executing Court, remitted the matter to Executing Court to investigate to quantu01 ofshare purchased by respondent No. 2. F Aggrieved by the order of High Court, the present appeal was preferred. The contention of the appellants was that it is not open to the respondents during the subsistence oftenancy or in the suit for recovery of. possession of the property after terinination of tenancy to set up title in himself or in any other person. Respondents bad to surrender.possession G and seek remedy, if any, separately in case he acquires title subsequently through some other person.

The contention of the respondent was that a lease of immoveable property determines in case the interest of lessee and lessor in the whole of the property becomes v.ested in one person and in the present case such H an event having taken piace to the extent of the undivided share of the coparceners of the joint family, decree passed In favour of the appellants A cannot be executed. Therefore, possession of the entire property cannot be obtained by the appellants and only symbolic possession can be given. Dismtssing the appeal, this Court

HELD :

1. When a decree is passed in favour a joint family the same B has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining C part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the right of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an D immovable property cannot claim to be in joint possession of that property with all the other coparceners.

However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for joint decree holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can E be executed in part only where the share of the decree holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing court cannot find out the shares of the decree holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC. Order XXI, Rule 15, CPC enables a joint decree holder to execute F a decree in its entirety but if whole of the 'decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto. Thus, High Court was justified in remitting the matter to the Executing Court to investigate the quantum of share purchased by respondent No. 2 -judgment debtor. [580-F-H; 581-A-C)

Sant Lal Jain v. Avatar Singh, (1985] 2 SCC 332, held inapplicable. Shah Mathuradas Magan/al & Co. v. Nagappa Shankarappa Malage & Ors., ( 1976] 3 SCC 660; Parmar Kanaksinh Bhagwansinh (Dead) by Lrs. v. Makwana Shanabhai Bhikhabhai & Anr., (19951 2 SCC 501; H SUPREME COURT RgPORTS

A Hasimathunnisa Begum v. Vitha/i Rao Gangaji & Anr., AIR (1979) Andhra Pradesh 273; Milkhi Ram & Ors. v. Raghunandan & Ors., AIR (1982) HP 87 and Bawa Maharaj Singh. v. Bawa Gurmukh Singh & Ors., AIR (1965) Punjab 166, referred to.

CIVIL AJ;>PELLA TE JURISDICTION : Special Leave Petition (C) No. 2590 B of 1997 Etc. From the Judgment and Order dated 4.11.96 of the Himachal Pradesh High Court in C.R.P. No. 61of1993.

Surlil Kumar Jain, Jitender K. Bhatia, Ms. Jaya Kumari and Ajay Gupta for Mis Jain Hansaria & Co. for the Petitioners. Atul Shannar, Vijay Kumar and S. U~y Kumar Sagar for the Respondents. The Judgment of the Court was delivered by

RAJENDRA BABU, J. A suit .for ejectment was instituted by the appellants on t~e grounds of arrears of rent and' sub-letting by Dharam Pal (Respondent No. 1) and Sat Pal (Respondent No. 2). The suit was decreed by the trial court on March 31, 1987. Appeal against that decree, second appeal thereafter and further special leave petition to this Court against the E decree in second appeal stood dismissed., The appellants herein levied execution on February 5, 1991 and certain objections thereto were raised that Judgment Debtor No. I was unnecessarily arrayed as a party in the proceedings and he was not in possession of the disputed premises. Judgment Debtor No. 2 claimed that he was a tenant in respect of the shop in question and his tenancy was not terminated in accordahce with I.aw. This contention was F belied by the finding recorded by the High Court in second appeal that the said Sat Pal (Respondent No. 2) was not a tenant but a trespasser of the shop. Hence the ~bjections were overruled. Against that order a revision petition was filed which was also dismissed, of course, granting some time to vacate the premises subject to certain conditions.

In the execution petition respondent No. 2 claimed that he had purchased the undivided interest of the coparceners in the Hindu Undivided Family of the decree holder and, therefore, actual physical possession cannot be given but only symbolic possession can be given to the appellant-decree holder. The Executing Court, after inquiry, upheld this contention. That order was H challenged in the High Court. The High Court set aside the order made by /

the executing court and remitted the matter to it to ·investigate the quantum A of share purchased by respondent No. 2. If a good or larger share as opposed to an insignificant share had been purchased by respondent No. 2 khas possession cannot be given to the appellant and if only an insignificant · portion had been purchased by him, the khas possession shall be given to the appellant. It is against this order the present special leave petitions are B preferred.

The learned counsel for the appellants contended that it is not open to the respondents during the subsistence of tenancy or in the suit for recovery of possession of the property after termination of tenancy to set up title in himself or in any other person. Respondents had to surrender possession and C seek remedy, if any, separately in case he acquires title subsequently through some other person and he placed strong reliance in support of this proposition on the decision of this Court in Sant Lal Jain v. Avtar Singh. [1985] 2 SCC 332; He also contended that in a case of this nature where only a portion of the undivided interest had been purchased by the judgment debtor there would be n<? merger of interest in terms of Section 111 ( d) of the Transfer of D Property Ad, 1882 and submitted that the concept of merger would arise only if no property remains outside the sale. In the present case only I/3rd undivided share having been purchased the judgment debtor cannot resist the recovery of possession and placed· reliance on the decision of this Court in Shah Mathuradas Magan/al & Co. v. Nagappa Shankarappa Ma/age & E Ors., [1976] 3 SCC 660 and Parmar Kanaksinh Bhagwansinh (Dead) by LRs v. Makwana Shanabhai Bhikhabhai & Anr. [1995] 2 SCC 501.

On the other hand, the learned counsel for the respondents submitted that a lease of immovable property determines in case the interests of lessee and lessor in the whole of the property becomes vested in one person and F in the present case such an event having taken place to the extent of the undivided share of the coparceners of the joint family, decree passed in favour of the appellants cannot be executed. If that is so, the possession of the entire property cannot be obtained by the appellants and, therefore, only symbolic possession can be given and placed reliance on the decisions in G Hasimathunnisa Begum v. Vitha/ Rao Gangaji & Anr., AIR (1979); Andhra Pradesh 273; Milkhi Ram & Ors. v. Raghunandan & Ors., AIR (1982) H.P. 87; and Bawa Maharaj Singh v. Bawa Gurmukh Singh & Ors., AIR (1965) Punjab 166.

We will first deal with the contention that a judgment debtor has to H SUPREME COURT REPOp.rs A surrender his possession and thereafter .seek his remedy in case he acquires any subsequent right in the· disputed property is attracted or not. A careful reading of the decision in Sant la/ Jain case (supra) would reveal that during the tenn of tenancy or in the suit for recovery of possession thereof after termination of such tenancy the 'tenant cannot set up title in himself and he has to surrender possession on tenancy being terminated and he has to seek B his remedy separately in case he acquires title subsequent to the decree through some other·person. It is also made ciear therein that he need not do so ifhe had acquired title to the property from the lessor or some one claiming through him in which case there would be a merger of two rights. In that case, the facts were that the original· owner had leased the property which was held C by the licensee through the lessee; that a sale had been effected in favour of the licensee but the lease in favour of the original lessor was continued; that his interest was different from. that of the original owner which was transferred to the licensee and thus there would be n~ merger of interests. In that view of the matter the decision in Sant Lal Jain\ case [supra] will not be of al}y assistance to the appellants.

We need not.examine the scope of Section 111 (d) of the Transfer of Property Act inasmuch as respondent No. 2 is held to be a trespasser and not a lessee. We have to find out the effect of the purchase of undivided interest of some of the coparceners in family of the decree holder in respect E of the property which is the subjet:t-matter of execution. When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the nietrrbers of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession .of immovable property is passed and one ortite coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie on'ly to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated fo be in respect of any one portion of the G property, a decree cannot be given· effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in· an immovable property cannot claim to be_ in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived H of the possession thereof for a joint decree holder can seek for execution of

a decree in the whole and not in part of the property. A joint decree can be A executed 'as a whole since it is not divisible and it can be executed in part only where the share of tne decree holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing court cannot find out the shares of the decree holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC. Order :XXI, Rule 15, CPC enables a joint decree holder to execute a decree in its entirety B but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work ~ut his rights in an appropriate suit for partition and obtain necessary relief thereto. Various decisions cited by either side to which we have referred to do not detract us from the principle stated by us as aforesaid. Therefore, a detailed reference C to them is not required.

In this view of the matter, we think the High Court was justified in making the order under appeal. Hence the special leave petitions stand . dismissed. No orders as to costs. S.V.K.I.

Petition dismissed.