ABDUL REHMAN SHORA (DEAD) BY LRS. & ORS.versusSTATE OF J & K & ANR.

                              [2009] 1 S.C.R. 75


            ABDUL REHMAN SHORA (DEAD) BY LRS. & ORS.                   A

'
    "                             v.
                      STATE OF J & K & ANR.
                    (Civil Appeal No. 25 of 2009)
                              JANUARY 7, 2009
                                                                        B
            [MARKANDEY KATJU AND V.S. SIRPURKAR, JJ.)

     •       REVISION:

               Jurisdiction of High Court while deciding a revision     c
         petition arising out of order of executing court - High Court
         allowing judgment debtors to file certain documents and
         directing executing court to again get the suit land identified
         and demarcated - HELD: High Court exceeded its
         jurisdiction and tried to go behind the decree, which was not D
         permissible - Suit land had already been identified by
          Commissioners' Report even then High Court held that the
         land was yet to be identified and demarcated - High Court
         allowed itself to be swept away by some additional documents
         filed at revisional stage without hearing the decree-holders
                                                                         E
         though the same were available to judgment-debtors while the
         suit and execution proceedings were pending - Order of High
         Court suffers from jurisdictional error and, therefore, is set
         aside - Decree-holders entitled to proceed on the basis of
         Commissioners' Report and judgment-debtors would be
         bound by orders as were passed by executing court- Decree F
         - Execution of.

              A suit for perpetual injunction was decreed in favour
         of the plaintiffs. But as the defendants did not allow the
         plaintiffs to fence the suit land, the decree-holders filed    G
         an execution application. The objection raised by the
    't   judgment-debtors that identity of the land was not
         established and, therefore, the decree was not
         executable, was allowed by the executing court. The
                                       75                               H
                                                                     •

    76        SUPREME COURT REPORTS            [2009] 1 S.C.R.


A revision petition filed by the decree-holders was allowed
  by the High Court holding that the executing court did
  not take any steps to identify the suit land, extent, limit
  and location whereof was clearly given in the revenue
  records. Before the executing court, on an application
B filed by the judgment-debtors, three officers - two from
  the Revenue Department and one from the Municipality
  concerned - were appointed as Commissioners. They
  demarcated the suit land, and the same was found in
  possession of the decree-holders. Counsel for the
c judgment-debtors accepted the Commissioners' report
  as correct. On 14.12.2005 the executing court directed the
  judgment-debtors to satisfy the decree. Again on
  27.6.2006 the executing court ordered the Director of
  Estates to file an undertaking regarding the
  acknowledgment of the decree and demarcation of the
0
  land. The judgment-debtors challenged these two orders
  in another revision petition before the High Court with a
  prayer to allow them to place certain documents on
  record. The stand of the decree-holders was that by such
E move the judgment-debtors were attempting to adduce
  fresh evidence in the form of manipulated and
  manufactured documents. However, the High Court
  again directed that the suit land be duly identified and
  demarcated.

F       In the instant appeal filed by the decree-holders, it
    was contended for the appellants that in the earlier
    revision petition the High Court having held the suit land
    to have been finally identified and demarcated, no
    question of passing fresh directions arose.
G
         Allowing the appeal, the Court

         HELD: 1.1. The High Court in its revisionary            Y

    jurisdiction has tried to go behind the decree, which is
    not permissible. The High Court has returned a finding
H
ABDUL REHMAN SHORA (D) BY LRS. & ORS. v. STATE 77
              OF J & K & ANR.           '

of fact that the decreetal land was yet to be duly A
identified and demarcated and, thereafter, the High Court
has chosen to open a Pandora's box by inviting
suggestions from both the sides for identifying the
decreetal land, which had already been identified by the
Commissioners' report. [Para 8) [86-A-B]                  B

     1.2. The High Court has exceeded its jurisdiction in
the matter and has chosen to allow itself to be swept away
by some documents, which though available to the
respondents/defendants, were never bothered to be filed
either while the civil suit was in progress or even during C
the execution. It is not known as to how and under what
provision, the said documents came to be produced at
the revisional stage, even without hearing the appellants/
plaintiffs, who were parties to the revision. [Para 9)
~6~-~                                                      D
    1.3. The impugned order is clearly erroneous and
suffers from jurisdictional error and is, therefore, set
aside. The appellants shall be entitled to proceed on the
basis of the Commissioners' Report, while the E
respondents/defendants would be bound by the orders
dated 14.12.2005 and 27.6.2006 passed by the executing
court. [Para 9) [86-D-E]

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 25          F
of 2009.

    From the final Judgment and Order dated 7.9.2007 of the
High 9ourt of Jammu and Kashmir at Srinagar in Civil Revision
No. 94 of 2006.
                                                                G
    M.L. Bhat and Purnima Bhat Appellants.

    S. Mehdi Imam, Anis Suhrawardy and Tabrez Ahmad for
the Respondents.

    The Judgment of the Court was delivered by                  H
    78         SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A        V.S. SIRPURKAR, J. 1. Leave granted.

          2. Being aggrieved by the Order passed by the High Court
    in its Revisional Jurisdiction and issuing certain directions,
    appellants have come up before this Court. The appellants
    herein are the original plaintiffs and the legal representatives
8
    of one of the original plaintiffs. First three appellants are the
    original plaintiffs, while the other three are the legal
  . representatives of one Abdul Salam Shora, who was the original
    plaintiff No. 2. During the pendency of this appeal, appellant No.
    1 died on 28.11.2007. Vide order dated 25.3.2008, his legal
C representatives were brought on record. They filed a suit for
    perpetual injunction against the respondents/defendants, whose
    defence was that the appellants/plaintiffs were encroaching
    upon the portion of land, which they alleged to have purchased
    and which is adjacent to the land in question. The location,
D identification and plaintiffs' title and possession over the suit
    land was not controverted by the respondents/defendants in
    their written statement. Two issues came to be framed and
    subsequently two additional issues also came to be framed
    and ultimately, the suit was decreed, after about 14 years of
E its filing by the Court of Sub-Judge, Srinagar. Admittedly, this
    judgment had become final, since no appeal was filed against
    this judgment. However, since the respondents/defendants did
    not obey the terms of the decree and did not allow the
    appellants/plaintiffs to fence the land, which was in their
F possession and which was identifiable and sufficiently
    delineated in the suit, Execution Application was filed in March,
     1987 for issuing directions to the respondents/defendants to
    comply with the terms of decree dated 18.10.1984. An
    objection came tb be raised by the Judgment-Debtors before
G the Executing Court that the decree was un-executable, since
    the identity of the land in respect of which the decree was
    passed, was itself not established. This objection was upheld
    by the Executing Court by its order dated 21.6.1988. Against
    this order, a Revision Petition was filed by the appellants herein
H before the High Court vide Revision No. 153 of 1988. The
•   ABDUL REHMAN SHORA (D) BY LRS. & ORS. v. STATE
          OF J & K & ANR. [V.S. SIRPURKAR, J.]
                                                                     79


     Revision stood allowed by the High Court by its judgment dated        A
    25.8.1998, whereby, the order of the Executing Court was set
    aside and the Executing Court was directed to proceed with
    the execution of the decree. The High Court had observed in
    the judgment that the Executing Court had not taken any steps
    to identify the suit land, though the factors like extent and limits   B
    of the suit land were available. The extent of the suit land was
     1 canal 12 marlas, which was clearly given in Khewat and
    Khasra Numbers, while its location was given as Brari Nambal.
    It was found that no attempt was made by the Executing Court
    to look out for situational and other identifiable features and        c
    locale of the land even from the suit file, Revenue records
    including 'Aksilatha'. Therefore, it was recommended that a
    Commissioner should be appointed for local investigation and
    if required, the oral evidence also could be taken. The High
    Court further observed that even the site plan coupled with the
                                                                           0
    permission of Srinagar Municipality to raise the wall accorded
    to the decree holders for fencing or walling of the suit land, was
    not taken into consideration and it appeared that the Executing
    Court had gone by whatever had been raised and stated by
    the Judgment-Debtors alone, without arriving at an independent
    decision regarding executability of the decree, in totality of facts   E
    and circumstances of the case. It was also observed by the
    High Court that a decree cannot be defeated by reason of
    technical or hyper-technical objection and those unconnected
    with the realities on the ground .level.
                                                                           F
          3. After this decision, the respondents/defendants filed an
    Application-cum-Reply/Statement, in which it was stated that the
    appellants/plaintiffs had grabbed the land of the respondents/
    defendants and under the garb of the decree, they were trying
    to grab the land of the respondents/defendants, adjacent to the G
    suit land, which land was required to be protected by the Court.
    It was, therefore, prayed that the Revenue Authorities should
    be directed to demarcate the land, so that the decree - holders '
    are not able to grab the land belonging to the respondents/
    defendants.                                                       H
    80         SUPREME COURT REPORTS                   [2009] 1 S.C.R.


A       4. Much prior to this, Srinagar Munjcipality had granted
    permission to the appellants/plaintiffs for fencing of the suit land,
    which was demarcable and identifiable.

       5. However, on this application, three persons were
  appointed as Commissioners, two of them were from the
8
  Revenue Department and one was from the Srinagar
  Municipality.They visited the spot on 7.12.2004 in presence of
  the parties, when the Deputy Director of Estates Department
  was also present on the spot, and after detailed inspection, the
  decreetal land measuring 1 canal 12 marlas was found to be
C in possession of the decree holders, i.e., the appellants. The
  decreetal land was also demarcated. A site plan was prepared
  and the report was submitted to the Court on 30.12.2004.

        6. On receipt of this report, the Executing Court gave an
D opportunity to the parties to file their objections to the abovesaid
  Report. The counsel for the respondents/defendants appeared
  before the Court on 16.5.2005 and he also had made a
  Statement that he was satisfied with the Report of the
  Commissioners and he accepted the same as correct.
E Thereafter, various orders were passed by the Executing Court,
  and the Court went to the extent of issuing the coercive
  measures, compelling the respondents/defendants to obey the
  decree. The first such order dated 14.12.2005 was not even
  challenged by the re~pondents in time, while by the second
F passed order dated 27.6.2006, the Director of Estates was
  directed to file an undertaking regarding the acknowledgement
  of the decree and demarcation of land. It is against these
  orders dated 14.12.2005 and 27.6.2006 that a Revision
  Petition came to be filed before the High Court, wherein, a
  totally new case was set up, which had no connection with the
G execution matter. Very significantly, the respondents/defendants
  had accepted the facts regarding the previous Revision Petition
  No. 153 of 1988 decided on 25.8.1998. After filing of the said
  Revision Petition, the respondents herein requested for placing
  certain documents on record. According to the appellants/
H
      ABDUL REHMAN SHORA (D) BY LRS. & OR"S. v. STATE 81
            OF J & K & ANR. [V.S. SIRPURKAR, J.]
      plaintiffs, the respondents/defendants tried to manipulate the           A
      record, which could not have been considered in the Revision
      Petition by the High Court. The appellants/plaintiffs filed
      objections to the respondents' request of production of
      documents, in which it was contended that the documents can
      not be produced at the stage of Revision because by doing so,            B
      the whole case was tried to be reopened, and there was an
      attempt on the part of the respondents/defendants to adduce
      fresh evidence, which too was manipulated and manufactured.

            7. However, it seems that the High Court allowed that
       Application by its order dated 23.11.2006, even without hearing
                                                                               c
       the appellants. During that time, no lawyer used to appear in
       the Court due to the strike call given by the militants in the Valley
       of Kashmir. The Court went on to allow this application, and the
       appellants filed a detailed Application on 4.12.2006 for
       recalling the order dated 23.11.2006. Ultimately, it seems that         D
     . the High Court passed the final judgment on 7.9.2007, whereby,
       the High Court gave a finding in the following words:

           "Accordingly, and in view of what has been stated above,
           I feel that the decreetal land whatever and wherever it is,         E
           is yet to be duly identified and demarcated without which
           the execution proceedings run the risk of being
           misdirected. So before passing final orders hereupon, I
,.         feel it would be proper to seek suggestions of appearing
           sides regarding mode and method of identifying the                  F
           decreetal land, so that the decree under reference is
           properly executed and without any further loss of time."

           The appellants, feeling aggrieved by this, have come up
           before us.
                                                                               G
           8. The Learned Counsel appearing on behalf of the
     appellants pointed out that there was no question of passing
     these fresh directions, particularly, in the wake of finalized order
     in the earlier Civil Revision dated 25.8.1998. Our attention was
     invited to the said order and more particularly, the observations         H
    82         SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A made therein, to which we have already made reference in the
  earlier part of the judgment. Even at the cost of repetition, we
  must note that the High Court has clearly observed therein as
  follows:-

         "What the Executing Court has exactly failed to do is that
B
         it has not taken any steps to identify the suit land. The
         extent and limits of the suit land despite available evidence
         on record has not been determined. This aspect has not
         been considered. The extent of suit land (1 canal 12
         marlas) is clearly given with Khewat No. and Khasra No.
c        The location of the land is given as Brari Nambal. No
         attempt has been made by the Executing Court to look out
         for situational and other identifiable features and locale of
         the land even from the suit file, revenue records including
         'Aksilatha' and may be through appointment of
D        Commissioner for local investigation and if required, on
         an enquiry where oral evidence could have been taken.
         Even the site plan coupled with permission of Srinagar
         Municipality to raise the wall accorded to the decree
         holders for fencing/walling of the suit land has not been
E        taken into consideration. It appears that the Executing
         Court has gone by whatever has been raised and stated
         by the respondent-judgment Debtors, without arriving at an
         independent decision regarding the executability of the
         decree in the totality of facts and circumstances of the
F        case. The Executing Court appears to have been in a hurry
         to rush to the conclusion that the decree is un-executable
         for the ambiguity and vagueness as sighted by the
         Executing Court."

G The learned counsel pointed out that by these observations, the
  High Court had finally held that the land had been finally
  identified and that the Executing Court was duty bound to
  execute the decree in respect of such identified land, which was
  clear from the Khewat and Khasra Numbers, as also the
  permission granted by Srinagar Municipality to the appellants
H
          ABDUL REHMAN SHORA (0) BY LRS. & ORS. v. STATE                83
                OF J & K & ANR. [V.S. SIRPURKAR, J.]

          ·to build a wall. Our attention then was invited to the             A
_..        Commissioners' Report, wherein, as many as two officers of
           the respondents'idefendants' department were present, as also
           the Deputy Director of Estates Department. It was pointed out
           that the Commissioners' Report had finally clinched the issue
           by locating the said land. Our attention was invited even to the   B
           sketch map drawn by the Commissioners, It was then pointed
           out by the learned counsel that the order dated 27.6.2006 read
           with order dated 14.12.2005, passed by the Executing Court,
           which was impugned before the High Court in the Revision, was
           clear enough, inasmuch as, in the order dated 14.12.2005, it       c
           was clearly mentioned that:-

               "To cope up with the problem, this Court has also vide its
               order dated 10.7.2004 read with the order dated
               16.8.2004 & 15.9.2004 got the decreetal land demarcated
               on 7.12.2004 through a commission for local inspection.        D
      •
                     The Commission has already submitted its report on
               31.12.20004, which is on the file. The commission in its
               report has submitted that the demarcation of the decreetal
               land was conducted on spot in presence of both the parties     E'
               on 7.12.2004. It has been reported that Deputy Director,
               Estates (Mr. Farooq Ahmad Lone) was present on behalf
               of the judgment debtors. It has been unambiguously
               reported that the decree holder were found the recorded
               owners, as well as in the physical- possession of the          F
               decreetal land which was demarcated.

                     It is most pertinent to mention that the Ld. Standing
               Counsel for judgment debtors on 16.5:2005 had admitted
              .in the open court that he admits the report of the
               commission and has no objection vis-a-vis the same.            G

                      But, despite the demarcation of the decreetal land,
               the judgment debtors are persisting in their attempt of
               interference with the decreetal land by objections on spot
               the construction of the fencing wall by the decree holder      H
    84        SUPREME COURT REPORTS                (2009] 1 S.C.R.


A        around the decreetal land."

  It was also found in that order that in spite of the demarcation
  of the decreetal land, the Judgment-Debtors were persisting in
  their attempt of interfarence with the decreetal land by objecting
  to the construction of fencing wall. In that order, the Executing
8
  Court has very specifically observed that the objections of the
  Judgment-Debtors were already stood rejected by the High
  Court in its order dated 25.8.1998. Ultimately, the Court went
  up to the extent of observing:-

C        "As such. the judgment debtor Director Estates, Srinagar
         against whom the decree is sought to be executed is liable
         to be committed to civil prison for compelling him to
         implement the decree. The office is directed to issue
         bailable warrant of arrest in the amount of rupees thirty
D        thousand for his appearance in person before this Court
         on 18.1.2006, which shall be entrusted to the S.S.P.,
         Jammu for execution. The warrant shall be accompanied
         with a copy of this order put up on 18.1.2006."

E On the heels of this order came the order dated 27.6.2006,
    wherein, the Executing Court noted that the Judgment-Debtor
    was not satisfied with the demarcation, which was already
    conducted in the case during execution process. It seems that
    on that day, the Judgment-Debtor was present before the
    Executing Court, which had issued a non-bailable warrant
F against him. The Court, then went on to observe that the
    conduct of the Judgment-Debtors was contemptuous. The Court
    also noted that the execution was pending disposal right from
    4.3.1987 and that made it a rarest of the rare case. It seems
    that these two orders were composedly challenged before the
G High Court in the Revision. The learned counsel, appearing on
    behalf of the respondents tried to feebly support the order of
  · the High Court. However, one look at the High Court suggests
    that the High Court has gone on to reopen the whole process.
    It has undoubtedly, made a reference to some documents and
H
         ABDUL REHMAN SHORA (D) BY LRS. & ORS. v. STATE 85
               OF J & K & ANR. [V.S. SIRPURKAR, J.)
         on the basis of those documents, the Court seems to have A
         observed in para 5 that the land under reference was sold by
         one Mehraj-ud-din S/o Assad Shah and Ghulam Nabi S/o
         Ghulam Shah to one Khazir Mohammad S/o Subhan Parey,
         who sold the same to Government in January, 1969. The Court
         further observed that the sale ofland by aforesaid persons is B
         shown to have been effected sometime prior to December,
         1968, when the concerned Patwari had entered the mutation
         regarding it, while the other part of the land comprising of
         Survey No. 1659/1667 measuring 6 marlas is shown to have
         been mutated in favour of Government on 2.1.1960. A very
         curious observation is made thereafter, by the High Court as
                                                                       c
         under:-

              "At the same time, howevei, as per copy of the judgment,
              the decree holders had before the trial Court in their plaint
              claimed ownership of the land under reference under a D
              sale deed purported to have been executed in their favour
              by Ghulam Nabi Shah S/o Ghulam Ali Shah reportedly
              executed on 12th and registered on 28th March, 1968.
              Accordingly, the root of the controversy appears to be lying
              somewhere here. If Ghulam Nabi Shah aforesaid who is E
              shown as son.of Ghulam Ali Shah and Ghulam Shah in
              photocopy of mutation No. 1004 above mentioned had
              sold the land to Khazir Mohammad S/o Subhan Parrey
  ,,,.        aforesaid before it is sold to decree holders in March,
              1968 then obviously their claim would be defective."          F
         We do not know, as to how, such observations could be made
         regarding the appellants'/plaintiffs' title, particularly, in view of
         the decree which had finally been passed. This seems to be
         the main reason why the High Court has interfered in the matter.
         Even the observations made by the High Court in para 6 of the G
         impugned judgment regarding the Commissioners' Report,
·--(
         could not have been made, particularly, because the counsel
         for the respondents/defendants unequivocally had accepted the
         C.ommissicmers' Report, which is clear from the earlier orders
                                                                               H
          ;
    86           SUPREME COURT REPORTS                [2009] 1 S.C.R.


A passed by Executing Court on 27.6.2006 and referred to earlier.
  In short, the High Court in its Revisionary jurisdiction has tried      ..
  to go behind the decree, which is not permissible. The High
  Court has also returned a finding of fact in para 8 that the
  decreetal land was yet to be duly identified and demarcated
8 and, thereafter, the High Court has chosen to open a Pandora's
  box by inviting the suggestions from both the sides for
  identifying the decreetal land, which had already been identified
  by the Commissioners' report.

           9. In short, the High Court has exceeded its jurisdiction in
c the matter and has chosen to allow itself to be swept away by
  some documents, which though available to the respondents/
  defendants, were never bothered to be filed either while the
  Civil Suit was in progress or even during the execution. We do
  not know how and under what provision, the said documents
D came to be produced at the Revisional stage, even without
  hearing the appellants/plaintiffs, who were parties to that
  Revision. In short, the impugned order is clearly erroneous and
  suffers from the jurisdictional error and the same is, therefore,
  set aside. The appellants shall be entitled to proceed on the
E basis of the Commissioners' Report, while the respondents/
  defendants would be bound by the subsequent orders dated
  14.12.20005 and 27.6.2006 passed by tre Executing Court.
  Under the circumstances, the appeal is allowed with costs.

    R.P.                                             Appeal allowed.      .
F