Mst. Mumtaz Jehan v. Mst. Insha Allah Alias Noor Jehan

Sultan Singh, J.:— Whether Mst. Insha Allah alias Noor Jehan plaintiff/decree-holder/respondent No. 1 is entitled to actual possession of the immovable property allotted to her in the partition decree ?—is the question for decision in this revision petition.

2. Briefly the relevant facts are that the plaintiff filed a suit for partition and mesne profits with respect to properties detailed in Annexure ‘A’ to the plaint against her step mother (Mst. Munawar Jehan defendant No. 1), two step sisters (Mst. Mumtaz Jehan and Mst. Altaf Jehan, defendants No. 2 & 3) and uncle (Abdul Hamid-defendant No. 4). She claimed 16/72 share of the entire property. A preliminary decree for partition and rendition of accounts was passed. The plaintiffs share was held to be 16/72. The local commissioner suggested vertical partition of the immovable property bearing Municipal No. 2086 Ward No. XI Gali Nahar Khan, Kucha Chelan, Daryaganj, Delhi by a line shown as P to P-1 in the plan Ex. C.W 1/4. The portions marked ‘D’ on ground floor, ‘B’ and ‘F’ on first floor and ‘A’ on second floor of the said property i.e the eastern portion of the said line, was allotted to the plaintiff. The Commissioner also reported that portion marked ‘A’ on second floor was in occupation of the plaintiff, that portion marked ‘B’ on first floor was in occupation of Mst. Munawar Jehan, defendant No. 1 that portion ‘F’ on first floor was in occupation of Akhtar Ali, a tenant at Rs. 18 per month and another portion ‘D’ on ground floor was in occupation of Mohd. Ahmed, a tenant at Rs. 50 per month. The portion marked ‘B’ on first floor is in dispute in this revision.

3. On 5th August, 1967 a final decree for partition in terms of the report of the Local Commissioner dated 2nd August, 1967 was passed. In other words, the ground floor portion marked ‘D’ and the first floor portion marked ‘F’ in occupation of the two tenants Mohd. Ahmed and Akhtar Ali and portion marked ‘B’ on the first floor in occupation of defendant No. 1, Mst. Munawar Jehan and portion ‘A’ on second floor in occupation of the plaintiff were allotted to the plaintiff in the final decree for partition. An appeal was filed by the defendants (R.F.A No. 94 of 1968) but it was dismissed on 7th May, 1973.

4. On 29th September, 1967 the plaintiff-decree-holder filed an execution application for possession of the property allocated to her share by beat of drums. The executing court issued warrant for delivery of symbolical possession. The decree-holder at the time of execution of the said warrant stated before the bailiff on 1st December, 1967 that the ground floor was in possession of Mohd. Yunus while first floor was in the occupation of Mst. Munawar Jehan and Akhtar Ali and that the second floor portion was in her possession. Mohd. Yunus son of Mohd. Ahmed stated before the bailiff that he was a tenant in the eastern portion on the ground floor under Munawar Jehan, Ahmed Syed, another occupant stated that he was tenant under Mst. Munawar Jehan in a portion on the first floor. Proclamation of symbolical possession was made by beat of drum. The decree-holder made a statement that she had received from the bailiff symbolical possession of the eastern portion of the said house, that no further possession remains to be taken according to the plan attached to the warrant of possession. The bailiff submitted his report and the court in its order dated 16th December, 1967 observed that symbolical possession had been delivered and the execution application was consigned.

5. On 29th May, 1979 the decree-holder filed another execution application seeking delivery of actual possession of the portion on the first floor which was in occupation of Mst. Munawar Jehan (defendant No. 1) who had died on 13th May, 1971. The portion in her possession was occupied by Ahmed Syed her grandson. Notice of the execution application was issued. Mst. Mumtaz Jehan and Mst. Altaf Jehan defendants-judgment debtors 2 and 3 filed objections. They alleged that the execution application was barred by principles of res judicata, that the decree-holder had sought satisfaction of the partition decree by delivery of symbolical possession of the property falling to her share, that the portion allotted to her was in occupation of different person entitled to occupy the same and not bound by the decree to relinquish such occupancy, that the property was only capable of symbolic possession which was granted to her. The decree-holder in reply submitted that the party against whom partition decree was passed was not entitled to retain actual possession. The executing court by the impugned order dated 19th October, 1981 held that the decree-holder was entitled to actual possession of the first floor portion marked ‘B’ in the site plan Ex. C.W1/4 observing that there was no effective delivery of possession obtained by the decree-holder in the previous execution case of the entire property as provided by the decree. Mst. Mumtaz Jehan, defendant No. 2 has filed this revision challenging the order of the executing court on the grounds that the decree-holder was not prevented to take actual possession in execution of the decree from Mst. Munawar Jehan, defendant No. 1 and she having obtained symbolic possession is not entitled to make another application for obtaining actual possession, that the property allotted to the plaintiff was only capable of delivery of symbolical possession. The learned counsel also submits that the execution application is barred by principles of res judicata.

6. Learned counsel for the decree-holder on the other hand submits that under the final decree four portions were allotted to the decree-holder out of which two portions i.e ‘D’ on ground floor and ‘F’ on first floor were in occupation of the tenants, portion ‘A’ on second floor has been in occupation of the decree-holder herself and portion ‘B’ on first floor was in occupation of Munawar Jehan, defendant No. 1. He submits that the decree-holder has always been entitled to take actual possession of the portion ‘B’ on first floor because Munawar Jehan, defendant No. 1 was bound by the decree and that the decree-holder was entitled to symbolical possession with respect to the two portions ‘D’ and ‘F’ in occupation of the two tenants. He submits that symbolical possession was to be obtained from the two tenants only and the same has been obtained by execution of the warrant of possession by beat of drum that actual possession of the portion ‘B’ on the first floor was never obtained and no prayer for such possession was made in the previous execution application. Although the previous execution application mentions that the possession of the property allocated to her share may be granted to the decree-holder by beat of drum it does not mean that the decree-holder gave up her right obtain actual possession of the portion ‘B’ in possession of Munawar Jehan, defendant No. 1. In other words, he submits that there was no effective delivery of possession to the decree-holder in the previous execution case with regard to portion ‘B’ on first floor in possession of Munawar Jehan-judgment debtor. He says that as no prayer was ever made to obtain actual physical possession prior to the present execution application, the decree-holder cannot be debarred from obtaining such actual possession now. He further states that the decree-holder is entitled to actual possession of portion ‘B’ on first floor and the question of res judicata does not arise.

7. Order 21 rules 35 and 36 of the Code of Civil Procedure read as under :

“35. Decree for immovable property : (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building or enclosure is to be deliverd and the person in possession, being bound by the decree, does not afford free access, the court through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.”

“36. Decree for delivery of immovable property when in occupancy of tenant : Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property”.

Rule 35 provides for delivery of possession by removing any person bound by the decree. The judgment debtor, is a person bound by the decree and therefore he can be removed. Under Rule 36 possession is delivered to the decree-holder by affixing a copy of the warrant on the property and proclaiming to the occupants the substance of the decree in regard to the property if the same is in occupation of a tenant or any other person not bound by the decree. Thus under Rule 35(1) actual possession is delivered to the decree-holder by removing all persons bound by the decree and under Rule 36 symbolical possession is delivered if the property is in occupation of tenants entitled to occupy and not bound by the decree to deliver possession. In the previous execution case the decree-holder never made any prayer for delivery of actual possession. On the contrary there was specific prayer for delivery of possession by beat of drum. In other words, the decree-holder prayed for obtaining symbolical possession. Symbolical possession, as already stated, was to be obtained only from the tenants occupying the property entitled to occupy and not bound by the decree. Such persons in the instant case were only two in occupation of the portion ‘D’ on ground floor and portion ‘F’ on first floor. As there was never any prayer for actual possession it cannot be said that the decree-holder has no right to obtain actual possession now. There is nothing on the record to show that the decree-holder ever made any application to obtain actual possession of portion marked ‘B’ on first floor which was held to be in occupation and possession of Munawar Jehan, defendant-judgment debtor No. 1 under the final decree passed on 5th August, 1967. The present execution application for actual possession was made on 29th May, 1979 i.e within a period of 12 years. The decree-holder thus, in my view, is entitled to take actual physical possession of the property in occupation of Munawar Jehan, judgment debtor No. 1 i.e portion ‘B’ on first floor shown in plan Ex. C.W 1/4.

8. Learned counsel for the petitioner-judgment debtor however submits that the decree-holder in the previous execution application prayed for symbolical possession, that he did not reserve her right to obtain actual possession of the portion ‘B’ on the first floor and therefore it should be deemed that she abandoned or waived her right to obtain actual possession. It is not correct. In the instant case the executing court has specifically directed issue of warrant for symbolical possession and therefore there was no question for the decree-holder to obtain actual possession of the said portion. Learned counsel for the petitioner further submits that the prayer in the previous execution application was for symbolical possession of the property allocated to her share and therefore his argument is that the decree-holder having applied to obtain possession of the entire property allotted to her and having obtained symbolical possession she cannot be allowed to obtain actual possession.

9. The crucial question for decision is : Whether the property which has been allotted to the decree-holder has been effectively delivered to her ? It is admitted on behalf of the petitioner that actual possession was never delivered to the decree-holder. It does not stand to reason that a decree-holder should be deprived of actual possession under Order 21 rule 35 of the Code of Civil Procedure, if he had never previously prayed for obtaining such possession, merely on the ground that he is deemed to have taken symbolical possession of the portion although he was entitled to actual possession under the decree. Further question of res judicata does not arise at all as there has never been any prayer for actual possession at any time before. In Kaku Singh v. Gobind Singh, AIR 1959 Punjab 468(1), A.N Grover, J. (as he then was) observed that the delivery of symbolical possession given in circumstances in which actual possession ought to have been given is a nullity as symbolical possession is not actual possession nor is it equivalent to actual possession except where the Civil Procedure Code expressly or by implication provides that it should have that effect, It has been further observed that when after obtaining symbolical possession the decree-holder applies for delivery of actual possession, the execution proceeding either continues or, starts afresh because when formal possession has been given in execution proceedings, a fresh application in execution, for actual possession of the property can be maintained and actual possession can be obtained. I am of the view that if it is assumed that the symbolical possession of portion ‘B’ on first floor was obtained by the decree-holder on 1st December, 1967 in execution of the warrants for possession, she is entitled to obtain actual possession now. She is not debarred from obtaining such possession.

10. Learned counsel for the petitioner judgment debtor has referred to various authorities but none of them is applicable to the facts of the present case. No case has been brought to my notice to the effect that if a decree-holder entitled to actual possession of the property makes an application for symbolical possession and obtains such possession, is debarred from obtaining actual possession subsequently, I now deal with the authorities cited by the learned counsel for the petitioner-judgment debtor. In Shew Bax Mohata v. Bengal Breweries Ltd., AIR 1961 Supreme Court 137(2) the executing court passed an order issuing a writ for delivery of possession of premises to the decree-holder by removing any person bound by the decree who refused to vacate the same. At the time of execution of the warrant the decree-holder settled with the judgment debtor and allowed him to run the factory and the decree-holders men remained at the factory as guards. The decree-holder thus obtained possession. Subsequently he prayed for actual possession. It was held that the judgement debtor had not been removed because of certain arrangement arrived at between the decree-holder and judgment debtor and as the decree-holder had not required the removal of the defendant from the premises, he could not be allowed subsequently to remove them. It has been further observed that it is open to the decree-holder to accept delivery of possession without actual removal of the person in possession. If he does that, then he cannot later on say that he has not been given that possession to which he was entitled under the Law. In this case the decree-holder had prayed for actual possession, warrant for actual possession was issued but he entered into an arrangement with the judgment debtor and felt satisfied only with symbolical possession. In Jaimal Singh Susaundha Singh v. Rakha Singh, AIR 1957 Punjab 17(3) it has been observed that where a decree-holder, although he is entitled to delivery of actual possession, is satisfied with the delivery of symbolical possession on account of the presence of standing cross on the Land and informs the court that possession has been delivered to him to his satisfaction, with the result that the decree is consigned to the Record room as satisfied, he is not entitled to comes forward later on with a second execution application. In this case also the decree-holder had applied for execution of the decree by delivery of possession of the land but was satisfied with symbolical possession. In Radhalal v. Chabilchand, AIR 1955 Nagpur 19 (4) it has been observed that where the decree-holder has obtained symbolical delivery of possession he cannot maintain another application for execution of the same decree by asking for actual possession of a house. From the report it is not clear whether in the first execution application the decree-holder made a request for symbolical possession or actual possession and therefore this judgment is not applicable to the present case. In Radhanath Das v. Sadhan Chandra Dey AIR 1935 Calcutta 245(5) the decree-holder made an execution application for actual possession but he obtained symbolical possession without any objection and subsequently he prayed for actual possession. The decree-holder was not allowed to do so. In Jagadish Nath Roy v. Nafar Chandra Paramanik, AIR 1931 Calcutta 427(6) the decree-holder had prayed for actual possession but he obtained only symbolical possession with some ulterior object of his own, and thereafter asked for actual possession. It was held that such a course is not permissible under the law. It has been further observed that had the decree-holder repudiated his getting only the symbolical possession instead of the khas possession, he would have been perfectly within his rights to come before the executing court a second time to have his remedy. In Mst. Mewa v. Amar Singh, AIR 1959 Punjab 515(7) it has been observed that the delivery of symbolical possession in execution of a decree to the decree-holder as against a judgment debtor is equivalent to the delivery of actual possession and that such a delivery therefore operates as dispossession of the judgement debtor. Observations were made in Tara Singh v. Gurdial Singh, AIR 1959 Punjab 518(8) that symbolical possession to decree-holder in execution amounts to actual possession against the judgment debtor. In Ram Narain Chand, v. Purnea Banking Corporation AIR 1953 Patna 110(9) and Kattil Raman Kunhi's sons Chathu v. Vadake Podivath Devaki Amma's AIR 1969 Kerala 121(10) it has been observed that the symbolical possession delivered in execution of decree will be deemed equivalent to actual possession and a suit for recovery of actual possession will be deemed to have been brought in time if it has been brought within 12 years from the date of symbolical possession. In Shamsudin v. Abbas Ali AIR 1971 Allahabad 117(11) which were proceedings unler Order 21 rule 100 of the Code of Civil Procedure it has been observed that though the law has made a distinction between actual possession and symbolical possession under Rules 35 and 36 of Order 21, no such distinction has been made under Rule 100 of Order 21 of the Code of Civil Procedure. Thus I am of the view that the authorities referred to by the learned counsel for the petitioner do not apply to the facts of the present case.

11. Order 21 rule 11 of the Code of Civil Procedure requires every application for execution of a decree to be made in writing. It also requires the decree-holder to state the mode in which the assistance of the court is required. In the instant case, the decree-holder respondent No. 1 prayed for delivery of possession by best of drum. It therefore cannot be said that decree-holder applied for actual possession or that he obtained possession of the said portion. It is well settled that successive applications for execution can be made. The decree-holder obtained partition decree which was to be executed by the different modes, namely, actual possession and symbolical possession. The decree-holder was thus entitled to proceed in execution by one mode i.e by delivery of symbolical possession in the first instance and subsequently by another mode i.e by delivery of actual possession. In the instant case the decree-holder in the previous execution application prayed for obtaining symbolical possession i.e with respect to the property which was held to be in occupation of the tenants under the partition decree and subsequently she applied for actual possession of the property which was held to be in possession of the judgment debtor. Thus there is no bar in allowing the decree-holder to obtain actual possession of the portion ‘B’ on the first floor shown in the plan Ex. CW 1/4. The executing court rightly dismissed the objections of the petitioner-judgment debtor and allowed the decree-holder to obtain actual possession of the said portion. The revision is, therefore, dismissed with costs.

S.N.C Revision Petition Dismissed.