J.V.GUPTA, J. - (1.) THIS revision petition is directed against the order of the executing Court dated April 1, 1986, whereby the objections to the execution filed by the petitioners were dismissed.
(2.) KARNAIL Singh was the owner of the house, in dispute. He entered into an agreement of sale dated July 25, 1958, in favour of Jagdish Kaur. She filed the suit for specific performance of the agreement of sell which was decreed by the trial Court on November 7, 1985. During the pendency of the suit, both the plaintiff Jagdish Kaur and defendant Karnail Singh died and their legal representatives were brought on the record. The first appeal filed in this Court on behalf of the legal representatives of Karnail Singh, i.e., Bhagwan Kaur and others, was dismissed on September 22, 1983. It is the common case of the parties that at the time of the entering into of the agreement of sale, one Inderjit Singh was the tenant on the house, in dispute. It is also no more disputed that the said Inderjit Singh walked away in the year 1980 and was no more in occupation of the house, in question. The decree-holders filed the execution application against the judgment-debtors as well as against Sarbjinder Singh, Balbir Singh and Davinder Kaur, as they were alleged to be in illegal occupation of the house. Admittedly, Sarbjinder singh and others were not parties to the suit, but since they were in occupation of the house, they were made parties to the execution application and the warrants of possession were obtained against them as well. Two separate objection petitions were filed; one on behalf of Sarbjinder Singh, he was the nephew of the tenant Inderjit singh and was in occupation of the house along with him. Therefore, he was in occupation of the house as a member of the joint Hindu family and as a license under Inderjit Singh who was paying rent regularly to the landlady, i.e. Bhagwan Kaur. It was further pleaded that he was not a trespasser, nor he was in unauthorised occupation of the property. In the objection of the premises along with him being the members of his family. It was also pleaded that they were in possession as tenants prior to the year 1976 and were in occupation of the property as such in their own rights. Surprisingly enough, neither Balbir Singh, nor Davinder Kaur come forward before the executing Court in support on the objections filed by them. On that short ground alone, their objections were liable to be dismissed. However, Sarbjinder Singh did appear in the witness-box in support of his allegations, but he was unable to produce the tenant Inderjit Singh to support his version. The executing Court came to the conclusion that according to the objectors Inderjit Singh and they were occupying the premises being the members of the former's family and as such, they as well as Inderjit Singh were the tenants in their own rights, but they had not shown if they were related to Inderjit singh to claim the tenancy being the members of his family. It was further found that it was also not proved if they were ever in possession prior to the year 1976, as alleged by them. Ultimately, the executing Court found, - "As discussed above, the circumstances viz. non-appearance of objectors Nos. 6 and 7 in the Court in support of their case, their possession having not been proved prior to 1976 as claimed by them, there being no evidence to show if their possession was as a direct tenant nor there being any evidence to show if they were licensees of Inderjit singh, tenant, as is claimed by them, their possession cannot be said to be in their own right. They appear to have been put up in possession by Inderjit Singh simply to frustrate the decree of possession in favour of decree-holder." So far as the case of Surbjinder Singh, objector, was concerned, the executing Court found,- "It is amply proved that Inderjit Singh has since walked out of the premises from 1980 onwards. He is occupying his own house where he has even shifted his telephone number. It is admitted by objector Sarbjinder Singh that Inderjit singh is living in Sherpur House. Inderjit Singh has not stepped into the witness-box to deny this claim of the decree-holders. Once it is proved from the evidence that Inderjit Singh is no more in occupation of the premises, no other person even as licensee can be said to be in possession as own right. If the person in possession claims to be so under the tenant who has walked out of the house such person cannot be allowed to remain in possession irrespective of the stand he takes either of sub-tenancy or licensee." In view of these findings, it was ultimately held by the executing Court that the objectors cannot be said to be in possession of the house in their own right and they were put in possession thereof during the pendency of the suit. Consequently, the objection petitions were dismissed. Dissatisfied with the same, all the three objectors have filed this revision petition in this Court. The learned counsel for the petitioners submitted that when neither Inderjit Singh, tenant, nor they were parties to the suit, no warrants of possession could be obtained against them as the decree was not binding on them as provided under Order 21 rule 35 read with rule 36, Code of Civil Procedure, (hereinafter called the Code). According to the learned counsel, the decree-holder stepped into the shoes of the original vendor Karnail Singh and even Karnail Singh, according to the learned counsel, could not dispossess the objectors unless he had sought an order of ejectment against Inderjit Singh. In support of the contention, the learned counsel relied upon Pt. Har Sarup v. Municipality Karnal, 1977 Punjab Law Reporter 16. On the other hand, the learned counsel for the decree-holders contended that it had been found by the executing Court that the objectors had absolutely no right or interest in the house, in question. Their plea that they were inducted by Inderjit Singh has not been accepted by the executing Court and since they have no right to the property, they being the trespassers were liable to be dispossessed in execution of the decree. In support of the contention, the learned counsel relied upon Kashmiri Lal v. Madan Lal, 1979(2) RCR 301: 1979 Punjab Law Reporter 738. The learned counsel further contended that even if it be assumed that no warrants of possession could be issued against the objectors, since they were not parties to the suit, even their objections will be deemed to have been filed under Order 21 rule 97 of the Code. That being so, all those questions were to be decided by the executing Court as provided under rule 101 of the said Order and not by a separate suit. The learned counsel also contended that as a matter of fact, no revision petition as such was maintainable as the order dismissing the objections was an appealable one. Since Inderjit Singh, tenant, argued the learned counsel, was no more in occupation of the house in dispute, the question of filing the ejectment application a against the objector did not arise and the allegations of the objectors that they were inducted by Inderjit Singh as licensees or sub-tenants have not been accepted by the executing Court. In any case, further argued the learned counsel, there was no justification for interfering with the impugned order in the revisional jurisdiction under section 115 of the Code, when the objectors have been found to be in unauthorised occupation without any rights or interest. The matter might have been different if Inderjit Singh, tenant, was in occupation of the premises. In that situation, the provisions of ORder XXi rule 36 of the Code will be attracted and he could be dispossessed only by seeking ejectment under the Rent Law. The objectors are neither the tenant nor the sub-tenants nor the licences under the tenant, as alleged by them nor person entitled to occupy the same as contemplated under Order 21 rule 36. Therefore, the question of ejecting them by filing the ejectment application against them as such did not arise.
(3.) I have heard the learned counsel for the parties. The main question to be decided in this revision petition is : whether the decree-holders be directed to file separate proceedings either by way of a suit or by way of an ejectment application against the objectors, or they are liable to be dispossessed in execution of the decree for specific performance of the agreement ?;