IMPORTANT POINT
The High Court while exercising its revisional jurisdiction against the finding of the Executing Court, is not justified in interfering with the finding of fact recorded without assigning sufficient or cogent reasons to conclude that the finding of the executing court in that behalf was factually incorrect.

Headnote:Civil Procedure Code, 1908—Sections 115, 151—Decree for recovery of possession of land—Interpretation of—Claim made to some ‘Kothas’ existing on land—Dispute as to whether ‘Kothas’ which were in possession of judgment-debtor formed part of decree—Powers of Executing Court—Subject matter of suit was in respect of 2 bighas 17 biswas—A decree for recovery of possession was passed—Decree holders alleging that actual delivery of possession was confined only to 10 biswas only in execution proceeding and only symbolic possession of 2 bighas 7 biswas was given—A fresh suit for possession was filed in respect of the said lands which was dismissed—However a decree for 10 biswas was passed—Warrant of possession was issued—Question raised in execution case as to whether a portion of property delineated with the words ‘EFGH’ in the plan including the ‘Kothas’ formed part of decretal property or not—It was held that these Kothas were outside the scope of the decree—Revision petition filed thereagainst by decree holders allowed—High Court held that ‘kothas’ form part of decretal land and actual delivery of possession having not been granted in relation thereto, a fresh execution petition was maintainable—Whether High Court was justified in interfering with the findings of fact while exercising its revisional jurisdiction—(No)—High Court, in the facts and circumstances of the case, exceeded its jurisdiction in passing the impugned judgment.
       Held : Delivery of possession of the ‘kothas’ delineated in the plan 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 learned Subordinate Judge in the suit that as actual delivery of possession having been effected, the suit was not maintainable.(Para 19)
       Appreciation of evidence on the 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.(Para 20)
       The High Court, therefore, in our opinion, was, thus, 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. The contentions raised in this behalf by the respondents were not borne out of records. (Para 21)
       There cannot be any doubt whatsoever that if the ‘kothas’ formed part of the decretal land, the decree holder was entitled to possession thereof but the question was whether the kothas in question were part of the decretal land or not.(Para 22)
       The finding of the Executing Court essentially was a finding of fact. The High Court has not assigned sufficient or cogent reasons to conclude that the finding of the executing court in that behalf was factually incorrect. Revisional jurisdiction as is well-known is very limited. The High Court, in our opinion, in the facts and circumstances of the case, exceeded its jurisdiction in passing the impugned judgment.(Para 24)
       (ii) Civil Procedure Code, 1908—Order 22, Rule 3 as Amended in terms of Punjab and Haryana High Court—Abatement of Appeal—Death of respondent 4—Statement made on behalf of appellant before the Registrar that name of respondent 4 be deleted—An order was passed to that effect—Application for impleadment filed by legal representatives of respondent 4—Relationship between applicants and deceased respondent 4 seriously denied and disputed — Applications for impleadment as also for substitution rejected.(Para 27)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. Interpretation of a decree passed as far back on 14.01.1953 falls for consideration in this appeal which arises out of a judgment and decree dated 21.10.2005 passed by the High Court of Punjab and Haryana in Civil Revision No. 1186 of 1984 whereby and whereunder the order dated 30.01.1984 passed by the Additional District Judge, Patiala was set aside.

3. The subject matter of the suit filed by one Sampuran Singh was in respect of 2 bighas 17 biswas in Khasra No. 2057 to 2059. A decree for recovery of possession was passed. The present dispute revolves round the question as to whether actual possession in execution of the said decree was granted or not.

4. The contention of the decree holders had been that actual delivery of possession was confined only to 10 biswas only in the execution proceeding and only symbolic possession of 2 bighas 7 biswas on 5.03.1954 was given, and, thus, the actual possession thereof remained with the judgment debtors appellants. A fresh suit for possession was filed in respect of the said lands which although was dismissed by the learned Trial Judge but a decree for 10 biswas was passed by the learned District Judge on 16.01.1960. It was held that the subsequent suit was not maintainable stating:

“It would, thus, appear that the plaintiff had not taken possession of the land measuring 2 bighas and 7 biswas in accordance with law under the previous decree and the subsequent suit is, therefore, not competent in accordance with the observations in Sasi Sakharewar Ray Vs. Lalit Mohan Maitra (AIR 1925 Privy Council 34) as held therein that it was on executable decree and precluded a fresh suit for the possession of the properties concerned by one of the parties. Consequently, the subsequent suit is not competent.”

5. The decree holder in execution of the decree dated 14.01.1953 prayed for delivery of possession of the said lands. The court passed the following order on 25.01.1963:

“The warrant of possession has been received back. It has been reported that the site plan was not attached with the warrant of possession but this appears to be incorrect. The D.H. is hereby directed to file a fresh site plan of the disputed property excluding the portion of 10 Biswas which may be clearly shown in the site plan that may be got filed and this 10 Biswas is out of land bearing khasra no. 2059 and the Patwari while giving possession according to the decree should ascertain that possession is given to the Decree Holder of the land etc. excluding the 10 Biswas of land. This 10 Biswas of land has been shown in the site plan today filed by the J.D. and has been marked A, B, C & D. The Patwari should ascertain whether this plot of land is out of Khasra no. 2059 or not? Warrant of possession be issued on payment of process fee etc. Now case to come up on 15.2.63. It should also be mentioned that possession of portion marked E, F, G, H be also not given to the D. Holder. Warrant of possession be given dasti also.”

6. In terms of the said order, warrant of possession was issued wherein it was directed:

“In respect of possession of land as per site plan attached in the above noted suit by fixing the peshi 6.7.63, you are hereby ordered that the possession of the land bearing khasra numbers except mark A, B, C, D & E, F, G, H be delivered to the decree holder along with the standing crops which are duly shown marked as red in colour with police force and in this respect the report be submitted. For the sanction of help of the police force, the proceedings have been started.”

7. Delivery of possession pursuant to the said warrant of possession was given upon publication of notice by beat of drums on or about 29.06.1963.

8. Thereafter, the decree holders respondents applied for mutation of their names which was said to have been granted. Entire khasras were recorded in the names of the decree holders. Allegedly, the decree holders had also transferred the lands in question to outsi

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