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1990 DIGILAW 1053 (MAD)

Pathuma Beevi v. Pathamuthu Joharan

1990-11-23

SRINIVASAN

body1990
JUDGMENT Srinivasan, J. 1. This second appeal is filed by the 2nd respondent in the court of the Principal District Munsif, Karaikal in E.A. No. 155 of 1980 in E.P. No. 51 of 1980 in H.R.C.O.P. No. 90 of 1979. 2. The 1st respondent herein obtained an order of eviction against the 2nd respondent in H.R.C.O.P. No. 90 of 1979. When the order was sought to be executed, the appellant herein obstructed. The 1st respondent filed E.A. No. 155 of 1980 for removal of obstruction under O.21, Rules 97 and 98 of the Code of Civil Procedure. The Principal District Munsif, Karaikal, granted the prayer and directed delivery of possession. The appellant herein filed AS. No. 3of 1981 on the file of the Sub Court, Karaikal. While dismissing the appeal on merits, the Subordinate Judge held that the appeal was not maintainable. The present second appeal is against the judgment of the Subordinate Judge. During the pendency of the second appeal, the appellant died and her legal representatives were brought on record as the 2nd appellant and 3rd respondent. The 3rd respondent also died and his legal representatives have been brought on record as respondents 4 to 11. 3. When the appeal was taken up for hearing, a preliminary objection was raised by learned Counsel for 1st respondent that the appeal is not main tainable. Really the objection is that the appeal by the appellant in the lower appellate court was itself not maintainable and consequently, the second appeal is not maintainable. 4. Learned Counsel submits that under Section 18 of the Pondicherry Buildings (Lease and Rent Control) Act, an order for eviction shall be executed by the Munsif having jurisdiction over the area in which the building is situated as if it were a decree passed by him. According to learned Counsel, the appeal against the order of the Munsif shall be only to the appellate authority under Section 23, if an appeal lies. But, according to him, under the provisions of Section 18 of the Pondicherry Act, an appeal does not lie but a revision would lie under Section 25. It is, therefore, contended that the remedy of the appellant was to file a revision against the order of the Principal District Munsif and not an appeal to the Subordinate Judge. 5. I do not agree with this contention. It is, therefore, contended that the remedy of the appellant was to file a revision against the order of the Principal District Munsif and not an appeal to the Subordinate Judge. 5. I do not agree with this contention. Section 18(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act contains similar language but the authority under the said sub-section to execute the orders is the Controller himself. Under the said sub-section, the controller shall execute the order as if it is an order of a civil court and for that purpose, he shall have all the powers of the civil court. Under Sub-section (2) of Section 18, an order passed in execution under Sub-section (1) shall not be subject to any appeal or revision. The question whether an order removing obstruction or dismissing an application to remove obstruction passed under Order 21, Rule 97 of the Code of Civil Procedure is an order under Section l8(1) of the Tamil Nadu Act arose for consideration before a Division Bench of this Court in Fathima Automobiles v. P.K.P. Nair . The Division Bench held that an order under Order 21, Rule 97 of the Code of Civil Procedure will not fall within the scope of Section l8(1). The reasoning of the Division Bench is that it is an order passed by the Rent Controller in exercise of the powers of a Civil Court an independent order passed under the Code of Civil Procedure and not the Rent Control Act. The Bench proceeded to hold that the order being passed by Rent Controller, an appeal would lie under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, as under the said section any order passed by the Rent Controller is appealable. If the reasoning of the Bench is applied to the provisions of the Pondicherry Act, it is clear that the order passed by the Principal District Munsif, Karaikal is one under Order 21, Rule 97 of the Code of Civil Procedure and not under Section 18 of the Pondicherry Buildings (Lease and Rent Control) Act. Consequently the Proviso to Section 18 will not apply. If an order is passed under Section 18, then only, the proviso will come into play and a revision would lie under Section 25. Consequently the Proviso to Section 18 will not apply. If an order is passed under Section 18, then only, the proviso will come into play and a revision would lie under Section 25. As the present order is an independent order under Order 21, Rule 97 of the Code of Civil Procedure, the proviso will not apply and the provision for appeal or revision under the Pondicherry Rent Control Act cannot be invoked. The only remedy available to the party is to file an appeal under the provisions of the Code of Civil Procedure as the order is an appealable one. 6. In fact, the relevant provision in the Code of Civil Procedure is found in Rule 103 of Order 21. Under that rule, an order made under Rule 98 or 100 shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Here, the order has been passed by the District Munsif. The authority, who is competent to entertain an appeal against the order of the District Munsif under the Code of Civil Procedure is undoubtedly the Subordinate Judge, Karaikal. 7. Learned Counsel for the 1st respondent placed reliance on the judgment of Natarajan, J. in S. Mohammad v. State of Tamil Nadu (1985) 2 M.L.J. 131. That was a case under the Tamil Nadu Act and the relevant provision authorised the Controller to pass orders in the stage of execution. That judgment will not apply to the present case. 8. Hence I overrule the objection raised by the 1st respondent and hold that the appeal to the Subordinate Judge was maintainable and the present second appeal is also maintainable. 9. As regards the merits of the claim made by the appellant, I am of the view that it should not have been gone into in this case. The appellant is claiming rights as a co-owner with the 1st respondent. According to the appellant, the property originally belonged to Alima Ammal alias Hamid Nachiar. She executed a settlement in favour of the 1st respondent with reference to one half of the property. The other half, which was retained by her, devolved on her death in 1967 on her husband and her sister's children. According to the appellant, the property originally belonged to Alima Ammal alias Hamid Nachiar. She executed a settlement in favour of the 1st respondent with reference to one half of the property. The other half, which was retained by her, devolved on her death in 1967 on her husband and her sister's children. Thereafter, there were number of transactions in the family and ultimately, the 1st respondent became entitled to 1/3rd share and the appellant became entitled to 2/3rd share, by purchase from one Fatima Beevi daughter of Ibrahim and wife of Hamid. Thus, it is contended that the appellant having entered possession as a co-owner entitled to 2/3rd share cannot be dispossessed by an order of eviction obtained against the 2nd respondent. The question relating to title to the property is a complicated one and it cannot be decided in a summary proceeding. No doubt, Order 21, Rule 101 of the Code of Civil Procedure provides that all questions arising between the parties to a proceeding on an application under Rule 97 or their representatives and relevant to the application shall be determined by the Court dealing with the application and not by separate suit. But the language of the Rule is very significant. It says clearly that 'all questions relevant to the adjudication of the application.' Here, the application is for removal of obstruction caused by the appellant herein to execution of an order of eviction obtained by the 1st respondent against her tenant, the 2nd respondent. The question relevant for the decision of the application is whether the obstructor is in possession at the time when the order of eviction is sought to be executed and whether such possession is independent of the judgment-debtor. It is not necessary for the purpose of Order 21, Rule 97 of the Code of Civil Procedure to decide whether an obstructor has got title independent of the decree-holder or a judgment debtor and by virtue of such title, the obstructor is entitled to be in possession. Hence the question of title put forward by the appellant herein in this proceedings will not be relevant for deciding the application for removal of obstruction under Order 21, Rule 97 of the Code of Civil Procedure filed by the 1st respondent herein. 10. Hence the question of title put forward by the appellant herein in this proceedings will not be relevant for deciding the application for removal of obstruction under Order 21, Rule 97 of the Code of Civil Procedure filed by the 1st respondent herein. 10. Therefore, I hold that the finding given by the courts below on the title put forward by the appellant is unnecessary for the purpose of this case and consequently I vacate the same. leave the parties to work out their title elsewhere under appropriate proceedings. I understand that there is already a partition suit filed by the appellant herein. 11. The only relevant question will be whether the appellant was in possession in her own right at the time of execution proceedings. That is a question of fact and the courts below have found that the appellant was not in possession and it was the 2nd respondent, who was in possession as a tenant of the 1st respondent. If at all, the appellant has entered possession subsequent to the order of eviction obtained against the 2nd respondent, she was not entitled to resist execution of the order of eviction. I accept the concurrent finding of fact and hold that the appellant, was not in possession before the order of eviction, was obtained. Consequently, the appellant's resistance to the execution is unsustainable and hence the appeal has to fail. 12. In the result, the second appeal is dismissed with the above observations on the question of title. There will be no order as to costs.