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1951 DIGILAW 124 (PAT)

Bhukhal Tewari v. Ramdayal Sah

1951-11-16

B.P.JAMUAR, RAI

body1951
Judgment Rai, J. 1. Both these revision applications at the instance of the auction-purchaser, are directed against the order of Mr. S. M. Ahmad, Second Munsiff, Chapra, allowing applications of the opposite party filed under Order XXI, Rule 100, Civil Procedure Code. 2. The facts relevant for the decision of the above two cases may shortly be stated as follows: The petitioner in execution of a mortgage-decree purchased the disputed plot and was given delivery of possession on the 25th of June 1949. On the 23rd of July 1949 two petitions under Order XXI, Rule 100 of the Code of Civil Procedure were filed before the executing Court, one at the instance of Ramdayal Sah and the other at the instance of Mts. Nabijan and Alijan. The case of the applicants as mentioned in their petition was that on the 20th of July 1949 while weeding the maize crop on the lands in question they were forbidden to do so by Bhukhai Tewari who informed them that he had purchased the land in execution of a mortgage decree and had been given delivery of possession over the same. The applicants were thus dispossessed by him. Thereafter, an inquiry was made and they came to know that Bhukhai Tewari had purchased the land in dispute at an auction-sale and was given delivery of possession on the 25th of June 1949. They further asserted that they cannot be ousted from the land in dispute, and prayed to be put back in possession of the same. The auction-purchaser resisted the claim of the applicants on the ground that the sale deeds of the year 1927 relied on by the applicants were farsi, fraudulent and without consideration, and that the property had all along remained in possession of the judgment-debtor, who had rightly been dispossessed by the delivery of possession and as such the applicants were not entitled to any relief at all. The executing Court after considering the evidence of the parties came to the conclusion that the applicants were in possession of the property in dispute in their own right on the date of the delivery of possession and that they should not have been dispossessed. On these findings the applications were allowed and the applicants were ordered to be put back in possession of the lands in question. 3. Mr. On these findings the applications were allowed and the applicants were ordered to be put back in possession of the lands in question. 3. Mr. Sen on behalf of the petitioner contended that the application as framed was not maintainable at all under the provisions of Order XXI, Rule 100 (1), Code of Civil Procedure, which runs as follows: "(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession." In support of his contention he relied upon several reported decisions which I shall consider presently. But before I do that, it is necessary for me to quote in extenso the relevant passages from the application in both the miscellaneous cases. On examination of the record, I find that the wordings in the application under Order XXI, Rule 100, Civil P.C., in both the miscellaneous cases are almost identical. So I propose to quote some paragraphs from the application in Miscellaneous Case No. 127 of 1949. The applicant in his petition under paragraphs 3, 4 and 6 stated as follows: "3. That on 20-7-1949, the applicant was weeding maize when opposite party No. 2 came and stopped the applicant saying that he has purchased the land in auction-sale in a decree of Babu Ram Charter Prasad. The applicant protested that he is a vendee of the J.Ds and has been coming in possession but the opposite party No. 2 paid no heed and turned out the applicant by force from the said field. Thus dispossessed the applicant. 4. That the applicant came to Chapra and enquired about the decree and dakhaldehani and came to know the following facts: (1) That Opposite Party No. 1 obtained a mortgage decree in Mort. S. No. 82/109 of 42/43 on the basis of a mortgage bond, dated 5-5-1933 and got the decree executed in Ex. Case No. 154 of 1946 and the Opposite Party No. 2, purchased the property in the execution sale and took dakhaldehani on 25-6-1949. (2) That the applicant was not a party to the mortgage suit or the execution case. 6. Case No. 154 of 1946 and the Opposite Party No. 2, purchased the property in the execution sale and took dakhaldehani on 25-6-1949. (2) That the applicant was not a party to the mortgage suit or the execution case. 6. That the applicant was not a party to tile mortgage suit so the decree is not binding upon him. He cannot be ousted from his land in execution and dakhaldehani of such decree." With reference to paragraph 3 of the application Mr. Sen contended that the dispossession took place on the 20th of July 1949 and not on the 25th of June 1949, on which date the delivery of possession was given and as such the application was not maintainable under the provisions of Order XXI, Rule 100, Civil P.C. I am however, not inclined to accept this submission of Mr. Sen. In paragraph 3 of the petition the applicant simply stated the circumstances in which he came to know of the delivery of possession and it was on that date that the auction-purchaser went and exercised actual possession over the land in dispute. In paragraph 4 the applicant does say that the dakhaldehani was given on the 25th of June 1949. In paragraph 6 of the application he more clearly expresses his grievance and contends that delivery of possession should not have been given as against him. He thereby respects the delivery of possession. 4. In support of his contention Mr. Sen, relied upon the cases of SATYANARAIN MULLICKS V. JINSI SAH, AIR (16) 1929 Pat 553; APPA RAO V. VENKAPPA, AIR (18) 1931 Mad 534; HARE KRISHNA V/s. JAMINI SUNDARI, 85 Cal LJ 155; AMBICA CHARAN V. RAM PROSAD, 30 Cal WN 163; ATARMOYI CAST V/s. RAMANANDA, 50 Cal 311 and KIRON SASHI DASI V/s. THE OFFICIAL ASSIGNEE OF CALCUTTA, 38 Cal W N 965. 5. Now, the case of SATYANARAIN MULLICK V/s. JINSI SAH, AIR (16) 1929 Pat 553, is distinguishable. In that case a Division Bench of this Court considered the applicability of Article 11-A of the Indian Limitation Act to the facts of that case. The article runs thus: Description of suit.Period oflimitationTime from which period begins to run. "11A. 5. Now, the case of SATYANARAIN MULLICK V/s. JINSI SAH, AIR (16) 1929 Pat 553, is distinguishable. In that case a Division Bench of this Court considered the applicability of Article 11-A of the Indian Limitation Act to the facts of that case. The article runs thus: Description of suit.Period oflimitationTime from which period begins to run. "11A. By a persona against whom an order hits beta maae under the Code of Civil Procedure, 19t8, upon an application by the holder of a decree for tbo possession of im-movible property or by the purchaser of such pro-party Bold in execution of a decree, complaining of resistance of obstruction to the delivery of pusses-sion thereof, or upon an application by any person dispossessed of Buch pro-perty in the delivery of possession thereof to the decree holoer or prrcha-ser, to eatablish the tight which he claims to the present, possission of the property comprised in the order."One year.The date of the order. 6. The relevant portion of the judgment in that case runs thus: "The only point taken by the learned Advocate for the appellant who is defendant 1 in the present appeal is a point which does not appear to have been taken in either of the Courts below. His contention is that the application of the plaintiffs under Order 21, Rule 100, having been dismissed on 6th September 1923 he was bound to bring a suit within one year from that date under the provisions of Article 11-A, Limitation Act, and the suit having been brought more than a year after the order of dismissal of the application under Order 21, Rule 100, it was barred by limitation. Now in order to attract the provisions of Article 11-A, it was necessary first to establish that the plaintiff who had made the application under Order 21, Rule 100 had been dispossessed of the property in the course of the delivery of possession to defendant No. 1. There is nothing on the record to show that he was as a matter of fact dispossessed in the course of the delivery of possession. The allegation in the plaint was distinctly made that although, an application was made under Order 21, Rule 100, the plaintiffs continued in possession and that they were actually dispossessed in Bhado 1331. There is nothing on the record to show that he was as a matter of fact dispossessed in the course of the delivery of possession. The allegation in the plaint was distinctly made that although, an application was made under Order 21, Rule 100, the plaintiffs continued in possession and that they were actually dispossessed in Bhado 1331. There was no denial of this fact, the case of the defendant being that they were as a matter of fact never in possession of the property since after the death of the widow and that in fact, defendant 2 was in possession. Both the Courts below have found that the plaintiffs story of possession and dispossession was true. Upon that iinding it is clear that the suit cannot be barred ...........I am of opinion that the plain terms of Article 11-A go to show that that article applies only to cases where a person who had been actually dispossessed of the property and who makes an application under Order 21, Rule 100 and that application is dismissed and then bring a suit for the establishment of his title and his. right to present possession, and such suit has to be brought within a year from the date of" the order." In my opinion, on the authority of this case it cannot be said that the present application was not maintainable. 7 The case of APPA RAO V/s. VENKAPPA, AIR (18) 1931 Mad 534, is also distinguishable. In that case it was found that the persons who had filed the application under Order XXI, Rule 100, Civil Procedure Code, had been set up as occupancy tenants at the instance of the judgment-debtor after the delivery of possession. In that view of the matter, they could not be said to have been dispossessed by the delivery of possession because on the findings they had no existence at the time. In that view of the matter, they could not be said to have been dispossessed by the delivery of possession because on the findings they had no existence at the time. At one place in the judgment of his Lordship Ramesam, J., it is said: "But if on the other hand, I am satisfied that, taking advantage of their not being parties, the defendants men are now set up some time after the execution, proceedings as an after thought to put forward a case of tenancy, to put a further spoke in the wheel, and to prevent the decree-holder from reaping the benefit of his decree, I ought to interfere and set aside the lower Courts order." Then his Lordship discussed several other irregularities and set aside the order of the Court below and dismissed the application filed under Order XXI, Rule 100, Civil Procedure Code. The case of AMBICA CHARAN V/s. RAM PROSAD, 30 Cal W N 163, also has no bearing upon the point under consideration. In that case a landlord, in execution of a decree for rent against the tenant, purchased the holding and took delivery of possession. A transferee from the tenant filed an application under Order XXI, Rule 100, Civil P.C., which was allowed on the 26th of June 1917. In May 1920 the landlord filed a title suit, impleading the transferee as party defendant, for a declaration that the tenant had no right to sell the holding and for recovery of possession. Before the High Court it was urged by the defendants that the suit was barred by limitation. It was held in that case that it was not barred as the plaintiff had filed the suit not in the capacity of the auction-purchaser but in the capacity of the landlord, and that it was not hit by the provisions of Article 11-A of the Indian Limitation Act. 7. Another case relied upon by Mr. Sen was the case of ATORMOYI DASI V/s. RAMANANDA, 50 Cal 311. But in that case the point for consideration was whether Article 11A of the Indian Limitation Act barred the suit filed by the respondent on the 16th of July, 1917. 7. Another case relied upon by Mr. Sen was the case of ATORMOYI DASI V/s. RAMANANDA, 50 Cal 311. But in that case the point for consideration was whether Article 11A of the Indian Limitation Act barred the suit filed by the respondent on the 16th of July, 1917. An application filed under Order XXI, Rule 100, Civil P. C., had been dismissed on the 17th of April, 1915 on the ground that as the applicant was in possession he had no right to file the application. In my opinion, the judgment in that case can be of 110 help to Mr. Sens client. 8. The case of KIRON SASHI Dasi V/s. The Official Assignee of Calcutta, 36 Cal W N 955 cited by Mr. Sen has nothing to do with the point under consideration in the present case. It is therefore unnecessary for me to deal with this case in detail. mr. Sen also relied upon the case of HARE KRISHNA V/s. JAMINI SUNDAR1 DASI, 85 Cal LJ 155 which has not followed an earlier decision of a single Judge of the same Court in the case of RAJENDRA K1SHORE PAL V/s. ASIRULLA, AIR (25) 1938 Cal 192 which had held, "The question was whether dispossession was by ,1 decree-holder or auction-purchaser as such, and not whether the dispossession actually took place after disposal of any execution case started at the instance of the decree-holder or auction purchaser." In HARE KRISHNA RANAs Case the facts were as follows. One Gostha, the predecessor in interest of the plaintiff of that suit, alone with Kedar, defendant No. 5 of that suit, had purchased 8 annas share in a patani tenure. They as owners of 8 annas patani interest sued for rent one Satish Adhikary who was the owner of a Sub-tenure. The rent suit was decreed, and in execution of that decree of the said Gostha, and Kedar, purchased the sub-tenure at an auction sale dated the 15th of February 1924. Delivery of possession was given to the auction-purchaser on the 24th of May 1924. Kedar who was the owner of the 8 annas share of the Sub-tenure had previously borrowed some money from Narendra, defendant No. 3, who obtained a decree for recovery of the amount due to him. Delivery of possession was given to the auction-purchaser on the 24th of May 1924. Kedar who was the owner of the 8 annas share of the Sub-tenure had previously borrowed some money from Narendra, defendant No. 3, who obtained a decree for recovery of the amount due to him. On the 16th of August 1935 Narendra in execution of his decree purchased the entire sub-tenure on the allegation that the entire sub-tenure had belonged to Kedar alone. Narendra got delivery of possession on the 19th of May 1936. Six months afterwards Gostha filed an application under Order XXI, Rule 100 in respect of the half share in the sub-tenure which was claimed by him on the allegation that he was dispossessed by Narendra on the 6th of November, 1936, that is, long after the date of delivery of possession to the auction-purchaser. The application under Order XXI, Rule 100, Civil P. C., was dismissed on the 5th of April, 1937. Thereafter, the plaintiff instituted the suit within one year of the 5th of April, 1937, for declaration of his title to 8 annas interest in the sub-tenure. The question arose whether the suit was maintainable or not. While considering this question Mookerjee, J. held as follows: "The first question which arises for decision is whether an application "made by Gostha in 1936 having been dismissed and no suit having been brought within one year from the date of dismissal, the present suit is barred under Article 11-A of the Limitation Act. On behalf of the plaintiffs-appellants it is contended that the application which purported to be under Order 21, Rule 100 of the Code was not maintainable in law and therefore there is no scope for the application under the provisions contained in Article 11A of the Limitation Act. The ground upon which the application under Order 21, Rule 100, of the Code is sought to be avoided is that on Gosthas own showing the alleged dispossession was not in course of the execution proceeding but much later thereafter. Under Rule 100 no application is maintainable unless dispossession takes place as a direct result of the execution proceedings. Mr. Janah appearing on behalf of the defendant, on the other hand, contends that under Rule 100 there is no reference to dispossession being limited to one in course of the execution proceedings. Under Rule 100 no application is maintainable unless dispossession takes place as a direct result of the execution proceedings. Mr. Janah appearing on behalf of the defendant, on the other hand, contends that under Rule 100 there is no reference to dispossession being limited to one in course of the execution proceedings. The terms as contained in Rule 100 are very general and the application of the rule ought not to be limited by practically introducing words which are not to be found there. If the provisions contained in Rule 100 were to be interpreted as standing by themselves there is room for argument, as contended for by the defendant. Rule 100, however, cannot stand by itself. Whether the suit is barred by limitation or not has to be decided on Article 11A of the Limitation Act," Thereafter, the learned Judge referred to the provisions of Art, 11A of the limitation Act and held that the bar under that article could have applied only if the suit had been filed by the plaintiff claiming to have been dispossessed by the delivery of possession, but as that was not the allegation in the plaint of that suit, it was not liable to be dismissed. While dealing with the argument of the lawyers of the parties Mookerjee, J. referred to the case of RAJENDRA KISHORE PAL V/s. ASIRULLA, AIR (25) 1938 Cal 192 and came to the conclusion that the opinion expressed in that Judgment was mere obiter dictum. In my opinion, the case of HARE KRISHNA also does not support the contention of Mr. Sen that the present application should have been thrown out as not maintainable. Mookerjee, J. in that case was more concerned with the bar of limitation rather than the maintainability of an application under Order XXI, Rule 100, Civil P. C. On the contrary, at one place in his judgment he made it clear that "if the provisions contained in Rule 100 were to be interpreted, as standing by themselves, there is room for argument, as contended for by the defendant." Thus none of the cases relied upon by Mr. Sen go to support his contention that the present application was not maintainable under the provisions of Order XXI Rule 100. Sen go to support his contention that the present application was not maintainable under the provisions of Order XXI Rule 100. Civil P. C. In the present case, on reading the application as a whole, if does ap-pear that the applicant was aggrieved by the delivery of possession though he came to know of it subsequently when the auction-purchaser actually went and interfered with his possession. In my opinion, the present application was maintainable under the provisions of Order XXI, Rule 100, Code of Civil Procedure. 9 But, even if the argument of Mr. Sen were to prevail, I am not inclined to exercise my revisional jurisdiction in this case and interfere with the order of the Court below. 10. The resist is that the application fail and are dismissed with costs. Hearing fee: one gold mohur in each case. Jamuar, J. 11 I agree.