KHAZAN SINGH (D) BY LRS. versus GURBHAJAN SINGH AND ORS.

Citation: [2007] 3 S.C.R. 120 · Decided: 23-02-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A 
KHAZAN SINGH (D) BY LRS. 
'"' 
v. 
GURBHAJAN SINGH AND ORS. 
FEBRUARY 23, 2007 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.) 
Execution of decree for possession-Possession of agricultural land 
when sought without expressly mentioning existence of some kothas, aft.er 
c long litigation and by first taking actual possession of small portion (lO 
biswas) and then taking rest of 2 bighas 7 biswas, decree holder could not 
belatedly claim that kothas were also included in decree for possession. 
Code of Civil Procedure, 1908-ss. / 00, 115-Second appeal-Heid, 
lies on question of law-Revisional Jurisdiction is also limited. 
D 
One 'S' filed a suit in respect of 2 bighas 17 biswas. The trial Co111rt 
passed decree for recovery of possession in 1953. Tiie actual delivery taken 
was of I 0 biswas only and only symbolic possession of 2 bighas 7 biswas was 
~ 
taken as i'. was in possession of Judgment Debtors (JDs). 
... 
E 
The decree holder-respondent (DH) fi"d a fresh suit for possession of 
2 bighas and 7 biswas which was dismissed as not maintainable by the District 
Judge on 16.1.1960 on the ground that an executable decree was passed in 
1953 and hence precluded a fresh suit for the possession of properties. The 
DH in execution of the decree prayed for delivery of possession on 2S.l.l!l'63 
F 
of the said lands. Delivery was &iven pursuant to warrants of possession. 
In the site plan, 2 portions of lands were delineated shown as ABCD 
and EFGH. Tile DH lllld also transferred portions of lands to some vendta. 
There were some kothas and then dispute arose whether these were in tthe 
portions of DH. Executing Court held that delineation of kothas WH aot: In 
G 
EFGH in the plan .. The delineation was done in the presence of parties with 
their consent·&lld they cannot question the same now. They fdtd revisiion 
against th1is, which was allowed by the High Court 
' 
, 
In appeal to this Court, ihe appellant contended that DHs never sued for 
possession of kothas and never asked the Executia& Court to deliver tbe 
H 
120 
KHAZAN SINGH (D) BY LRS. v. GURBHAJAN SINGH 
121 
possession of said kothas and were not entitled to seek their possession A 
;;< 
belatedly. 
Allowing the appeal, the Court 
HELD: I.I. The subject matter of the dispute is 'kothas'. JD had all 
along taken the stand that the 'kothas' are outside the decretal land. Even if B 
they had not raised the contention that the decree stood satisfied, it was for 
the Executing Court to arrive at the said decision. Appellants are admittedly 
in possession of the 'kothas' in question. In the first execution case, therefore, 
the DHs were required to file application not only for actual delivery of 
possession of agricultural lands as also non-agricultural lands as directed 
in terms of warrant of delivery of possession but also for the said 'kothas'. In c 
the warrant of delivery of possession issued by the executing court no direction 
was issued while directing the authorities to render all assistance to the bailiff 
of the court, to evict the JDs from the 'kothas'. (Para 16( 
(126-G-H; 127-A-B] 
1.2. The delivery of possession of the 'kothas' dt:lineated in the plan D 
and marked with the letters 'EFGH' was a contentious issue in the Execution 
Second Appeal as also in Civil Revision filed before the High Court. It had 
categorically been held that the 'kothas' did not form part of the decree and, 
.. 
thus, the possession thereof cannot be delivered. It has also been found by the 
• 
Subordinate Judge in the suit that as actual delivery of possession having 
been effected, the suit was not maintainable. Appreciation of evidence on the E 
basis of the materials brought on record by the parties was within the domain 
of the Executing Court By reason of the Code of Civil Procedure (Amendment) 
Act, 1976, an appeal thereagainst does not lie. Revisional jurisdiction of the 
High Court, thus, could be exercised only on limited grounds. 
(Paras 19 and 20] (127-G-H; 128-A( 
F 
1.3. The High Court, therefore, was not correct in interfering with the 
said findings of fact. It was exercising its revisional jurisdiction. It had not 
found that the Executing Court committed any illegality or material 
irregularity in passing the order impugned before it. It proceeded on a 
presumption that merely symbolic possession had been delivered. (Para 21) 
(128-B-C] G 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 920 of2007 . 
' 
. , 
From the final Judgment and Order dated 21.10.2
Excerpt shown. Read the full judgment & AI analysis in Lexace.