Mahip Rai v. Dwarka Rai — 1905 DIGILAW 14 (ALL)

JUDGMENT : BANERJI, J. 1. The plaintiff appellant, having obtained a decree for possession of immovable property against Mathura Rai and Tilakdhari Rai, applied for execution of his decree. He was resisted by the respondent, Dwarka Rai, who claimed to be in possession of the property on his own account. Thereupon, in accordance with the provisions of section 331 of the Code of Civil Procedure, the claim was registered as a suit between the decree-holder as plaintiff and the claimant as defendant, The court of first instance tried the question of title raised by the parties and made a decree in favour of the plaintiff, Upon appeal by the defendant the lower appellate Court found that the defendant was in possession at the time of obstruction, and, without entering upon a determination of the question of title, dismissed the suit. The learned Subordinate Judge says in his judgment:— ” Having regard to the nature of the case, it is only necessary to see and it should only be proved, which party was in possession at the time of obstruction, irrespective of the fact what was the state of things previous to that time.” In so holding the learned Subordinate Judge was clearly war in error. Section 331 directs that the court shall proceed to investigate the claim in the same manner and with the like power as if a suit for the property had been instituted by the decree-holder against the claimant under the provisions of Chapter V. It further provides that the order of the Court shall have the same force as a decree and shall be subject to the same conditions as to appeal, It is thus manifest that a court trying a suit under section 331, must try it as a suit for the property, and determine the question of title also. 2. As the order of the Court has the force of a decree and is appealable as such, there cannot be any doubt that the legislature did not intend that the order should be confined to the question of possession only. This is further manifest upon a comparison of the provisions of section 331 with those of section 332. 2. As the order of the Court has the force of a decree and is appealable as such, there cannot be any doubt that the legislature did not intend that the order should be confined to the question of possession only. This is further manifest upon a comparison of the provisions of section 331 with those of section 332. If in execution of a decree for possession of immovable property any person other than the judgment-debtor is dispossessed, the person so dispossessed may make an application to the Court under section 332, and upon such application being made, the Court is required to confine itself to an investigation of the grounds of dispute specified in the first paragraph of the section, viz., that the property was bona fide in the possession of the claimant on his own account or on account of some person other than the judgment-debtor, and that it was not comprised in the decree of that, if it was comprised in the decree, he was not a party to the suit in which the decree was passed, and then the section provides that the party against whom an order is passed under the section may institute a suit to establish his right. Had the legislature in enacting section 331 intended that the investigation under that section should be limited only to the question of possession, one would have expected’ to find in the section a provision similar to that contained in the last paragraph of section 332. There is another circumstance, which unmistakably shows that the legislature intended that all questions between the parties including the question of title should be tried in a suit under section 331 in the same way as in an ordinary suit, In Act No. X of 1877, it was provided in section 331 that the claim of a person, who resisted the execution of a decree for possession should be registered as a suit, and investigated by the Court with the like power as if a suit had been brought against the claimant under the provisions of section 9 of the Specific Relief Act, 1877; the investigation was to be confined to the question of possession only. This provision however, was repealed by Act No. XII of 1879, and the provisions of that Act, which in this respect are almost the same as those of Act No. VIII of 1859, were re-enacted in Act No. XIV of 1882, the present Code of Civil Procedure. The provisions of section 331 of Act No. X of 1877 were undoubtedly repealed with an object, and that object, it is clear, was that a trial under section 331 should be a trial upon the question of title also. This view is supported by the ruling of the Bombay High Court in Moulakhan, against Gori Khan, [1890] I.L.R., 14 Bom., 627 which was approved and followed in Bapujirao against Fateh Singh Shahji Bhosle, [1896] I.L.R., 22 Bom. 967. With reference to the provisions of section 229 of Act No. VIII of 1859, this Court held in Rucha Rai against Purmeskur Dayal, [1870] 2 N.W.P.H.C.R., 252 that under that section the question of title was also to be tried, and not merely the question of bona fide possession. As I have already said the provisions of section 229 of Act No. VIII of 1859 are almost in terms similar to those of section 331 of the present Code of Civil Procedure. This ruling is therefore an authority of this Court in favour of the appellant's contention. For the above reasons I am of opinion that the lower appellate Court should have tried and determined the question of title also. I accordingly allow the appeal, set aside the decree of the lower appellate Court, and as that Court decided the case upon a preliminary point, I remand the case under section 562 of the Code of Civil Procedure to that Court, with directions to re-admit it under its original number in the register and proceed to determine it according to law. The appellant will have his costs of this appeal. Other costs will follow the event.