R.L.ANAND, J. - (1.) THIS is a civil revision and has been directed against the order dated 24th April, 1999 passed by the Court of Civil Judge (Junior Division), Narnaul who allowed the application under Order 6 Rule 17 CPC of the decree holder at the execution stage.
(2.) SOME facts can be noticed in the following manner: The land in dispute in this case is 4 Kanals and 6 Marlas. Earlier, it was owned by Murli to the extent of 4/5th share and by Rattan Singh to the extent of 1/5th share. Murli sold his 4/5th share to the petitioner in the year 1974. Rattan Singh filed a suit for pre-emption being the co-sharer against the vendee and the suit was decreed in favour of Rattan Singh and Rattan Singh became the full-fledged owner of the land in dispute. Rattan Singh entered into two agreements of sale; one on 24th June, 1975 of 1/5 share and second on 23rd February, 1983 regarding 4/5th share with Phool Chand son of Raml Lal (present respondent). Phool Chand filed a suit for specific performance on 15th June, 1983 against Rattan Singh. The suit was decreed vide judgment and decree dated 25th January, 1988 and the following relief was given to the decree holder : "In view of the matter, I pass a decree only for specific performance of contract Ex.P1 dated 23rd February, 1983 with cost of the suit. However, the suit of the plaintiff in respect of land in Ex.PW2/A agreement dated 24.6.1975 is dismissed, since Hari Ram is in possession of the suit land as a tenant, therefore, the plaintiff is entitled only to take Malkana possession and not physical possession from Hari Ram. The defendant No. 1 and Hari Ram are directed to execute and get the sale deed registered jointly in favour of the plaintiff in respect of the suit land regarding which the suit has been decreed within two moths from today, failing which a commission would be appointed by the court for the execution and registration of the sale deed in their behalf. Decree sheet by drawn up accordingly and the file be consigned to record room."
(3.) THIS decree passed by the trial Court was challenged by Phool Chand son of Ram Lal in appeal and the decree was passed with regard to the second agreement dated 24th June, 1975 on 20th September, 1990. Thereafter, Phool Chand filed the execution and during the course of execution proceedings, he filed an application under Order 6 Rule 17 CPC dated 28th January, 1994 and made a prayer that he should also be given the factual physical possession of the land in question, which was agreed to be purchased by him and regarding which the suit was decreed. This application was resisted by the petitioner on the plea that Hari Ram was in possession of the suit property, he is in occupation of the property in the capacity of Gair Morushi tenant and, therefore, Hari Ram cannot be directed to deliver the possession of the suit land in favour of the decree holder Phool Chand son of Ram Lal. It was also pleaded by the petitioners that the application under Order 6 Rule 17 CPC at the execution stage should not be allowed. The arguments were addressed by the parties before the trial Court and vide impugned order dated 24th April, 1999 the learned Civil Judge (Junior Division), Narnaul allowed the application of the decree holder for the reasons given in paras Nos. 4 to 16 of the said order, which can be reproduced as follows :- "4. I have heard the learned Counsel for the parties and have gone through the record on file. Admittedly the said property measuring 4 kanal 6 marlas was entirely owned by Raghubir Singh to the extent who sold 4/5 share to Phool Chand and Vinod on 26.7.1974. Thereafter Rattan Singh, owner of 1/5 share got his sale pre-empted vide judgment dated 15.1.1979. Said Rattan Singh entered into agreement of sale in respect of 1/5 share on 24.6.1975 (Ex. PW2/A) and in respect of 4/5 share on 23.2.1983 (Ex.P1). The said sale agreements were entered into with the plaintiff/decree holder/applicant. However, the said deed was never executed hence the plaintiff filed a suit specific performance. Admittedly, before Rattan Singh got the sale pre-empted from Phool Chand and Vinod, Hari Ram was entered into the said property as a tenant by Phool Chand and Vinod and even during the pendency of the present suit Rattan Singh, who had agreed to sell the property to Phool Chand plaintiff, sold the entire property to Hari Ram. The plaintiff even filed an application for impleading Hari Ram as a party, but the same was rejected. Thereafter, the suit of the plaintiff was decreed against Rattan Singh only in respect of 4/5 share and not in respect of 1/5 share. Thereafter feeling aggrieved from the said order Hari Ram, Rattan Singh and Phool Chand filed three separate appeals. Appeals of Hari Ram and Rattan Singh were dismissed. However, the appeal filed by Phool Chand was allowed. Hence, a sale deed was to be executed by Rattan Singh and the LRs of Hari Ram in respect of the entire property. Although, Hari Ram was not a party to the original suit, he become a party in appeal since he had filed a separate appeal against the judgment. Consequently, the plaintiff got the sale deed executed and registered through the Local Commissioner appointed by the court. The possession was handed over to the plaintiff/decree holder being owner by way of he sale deed, but he was never given physical possession of the suit property. 5. Admittedly Hari Ram is recorded as the person in possession of the suit property and the Local Commissioner expressed his helplessness in getting the physical possession handed over to the decree holder since there was no order in this respect. 6. Now the decree holder wants to amend the plaint in such a manner so that he can get the physical possession of the suit property. 7. The learned Counsel for the decree holder has rescued that since Hari Ram was in possession when Raghubir Singh had sold the property to Phool Chand and Vinod on 26.7.1974 he came into possession during the pendency of the pre- emption suit filed by Rattan Singh. Once Rattan Singh become the owner by way of pre-emption possession of Hari Ram became illegal as per the observation of the Punjab and Haryana High Court in Hukam Singh v. Hukumat Rai, reported as 1967 PLR page 743 (FB) wherein it was held by their Lordships that a successful pre-emptor is not bound by tenancy created by the vendee after the sale in his favour. In other words, relationship of landlord and tenant is not created by operation of law between a pre-emptor decree holder on the one hand and a tenant inducted by the vendee into the pre-empted property by the vendee after the sale in his favour but before in the pre-emption suit." 8. It has also been argued that even if Hari Ram claims to be in possession of the suit property on the basis of sale deed executed by Rattan Singh he had to vacate the property since the sale deed had been executed during the pendency of the present suit and was hit by principle of lis-pendens thus clearly the said sale deed was void and hence the plaintiff was entitled to get physical possession of the suit property and, therefore, he deserved to be permitted to amend the plaint. 9. On the other hand, the learned Counsel for the judgment debtor has argued that once physical possession has been shown to have been given to the plaintiff by way of Ex.PW2/A and Ex.P1, the plaintiff cannot be permitted to back out from the fact that suit property has been taken by him and could not seek physical possession in execution. It has also been argued the plea of possession was not taken at an initial stages of the suit since in that way, Hari Ram would have had to be made a party to the suit. 10. The major argument forwarded by the learned Counsel for the judgment- debtor is that the court cannot superimpose conditions on the agreement of sale at this stage since, in the agreement of sale it has been agreed that possession had been handed over to the plaintiff, Court could not ask the judgment debtor to hand over the possession once against (again ?). 11. It has been also been agreed that Hari Ram's possession had been upheld and protected in the judgment. Therefore, now it cannot be disturbed in the execution proceedings. It has also been argued that Hari Ram not a party in the original suit therefore, he could not be directed to hand over the possession of the suit property to the degree holder. 12. After giving due deliberations to the contentions of the learned Counsel for the parties, I am of the considered view that since admittedly Hari Ram had been inducted by vendees Phool Chand and Vinod after sale deed was executed on 26.7.1974, the tenancy of Hari Ram cannot be held binding on Rattan Singh (Preemptor) as per the observations of the Punjab and Haryana High Court (Full Bench) in Hukam Singh case (supra). Thus, even the decree holder Phool Chand cannot be held bout (bound ?) by the said tenancy and the tenancy is clearly void and not binding on the interest of the decree holder. 13. As regards the physical possession having been given away by way of Ex.PW2/A and Ex.P1, it is settled principle of law and that mere recital over of the possession is not enough and his not binding of anybody unless the actual physical possession is handed over. 14. There is no merit in the contention of the learned Counsel in the judgment debtor that the plea of possession had not been taken up so that Hari Ram is not required to make a party. Since, admittedly an application was filed by the plaintiff for (to be made ?) impleading Hari Ram as a defendant but the same was rejected by the Court. It can also not be said that Hari Ram was not bound by the judgment since he was not party to the original suit. Because admittedly, Hari Ram became an interested party when he filed an appeal and the same was dismissed and as per the direction of the appellate Court he also executed the sale deed in favour of the decree holder. 15. Clearly, possession of Hari Ram though upheld by the trial Court was never protected by the appellate Court and the order of the lower Court was modified to the extent that Hari Ram was also directed to execute the sale deed. The sale deed was also admittedly executed by Rattan Singh and LRs of Hari Ram jointly. 16. As for the condition of agreement on the sale, the agreement is totally baseless since the decree for possession is inherent in the decree for specific performance. Even otherwise it cannot be said that since recital regarding possession had been made and agreement to sale same cannot be delivered after the execution of sale. Since, there is nothing of record to show that the factual physical possession was ever handed over to the decree holder at the time of execution of agreement of sale." ;