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2002 DIGILAW 909 (DEL)

ROHIT KUMAR v. DALIP KUMAR

2002-07-12

SHARDA AGGARWAL

body2002
SHARDA AGGARWAL ( 1 ) SMT. Kanchan Bala Thukral has filed objections under Order 21 Rules 99 and 100 read with Section 151 Code of Civil Procedure, 1908 alleging that she being the owner in her own rights of the immovable property known as Flat No. F-16, Desh Bandhu gupta Market, Karol Bagh, New Delhi has been illegally and forcibly dispossessed by the Decree Holders under the cover of executing warrants of possession issued against the judgment debtor. These objections were decided vide orders dated 24th August,2001 prima facie holding that the applicant/objector was having independent title in the suit property. She was, however, not put back in possession and an inquiry was ordered to be held under order 21 Rule 101, Code of Civil Procedure. The applicant/objector preferred TO an appeal EFA (OS ). 8/2001 against the aforesaid orders. ( 2 ) VIDE orders dated 1st May,2002 the appeal was disposed of and the case was remanded back with the directions to re-adjudicate the objections in the light of the Apex Court s decision in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust Anr. 1998 ( 3 ) SCC 723, where in the Apex Court observed that the adjudication mentioned in the rules need not necessarily involve a detailed enquiry or collection of evidence. The executing Court can adjudicate as to whether the resistor or objector is a person bound by the decree or has title independent of the judgment debtor on admitted facts and even on the averments made in the application made by the objector. ( 3 ) BEFORE adverting to the contentions of the learned counsel for the parties a short background of the facts is necessary. One Banarsi Dass had filed a suit for specific performance and for declaration and possession of property bearing No-F-16, Desh Bandhu Gupta market, Karol Bagh, New Delhi against the legal heirs of harbans Lal. Dalip Kumar Jain, the Judgment Debtor is the son of Harbans Lal. He was impleaded as a defendant in that suit. The property being a Government built property was allotted to Harbans Lal under the Displaced person (Compensation and Rehabilitation) Rules. As such, union of India through Land and Development Office was also impleaded as a party to that suit. The said suit for specific performance was decreed in favour of Banarsi dass on 4th April,1985. The property being a Government built property was allotted to Harbans Lal under the Displaced person (Compensation and Rehabilitation) Rules. As such, union of India through Land and Development Office was also impleaded as a party to that suit. The said suit for specific performance was decreed in favour of Banarsi dass on 4th April,1985. On directions in that suit lease deed was executed by Land and Development Office (for short L and DO) in favour of the legal heirs of Harbans Lal including the judgment debtor, Dalip Kumar Jain. Pursuant to the decree dated 4th April,1985 a sale deed was executed on 11th January,1988 in favour of Banarsi dass on behalf of legal heirs of Harbans Lal. The name of Banarsi Dass was mutated in the records of L and DO and municipal Corporation of Delhi. By this sale deed the judgment debtor, Dalip Kumar Jain ceased to have any right, title or interest in the said property. This decree in favour of Banarsi Dass was not challenged and became final. ( 4 ) THE case of the objector is that she purchased the property from Banarsi Dass by entering into an agreement to sell dated 2nd November,1999 and the physical possession of the property was delivered to her. Since then she has been using the property in question as go-down for storing the stocks of her husband s business, which he was running under the name of M/s. Best of India and M/s. Rakesh Kumar Thukral. ( 5 ) THE decree holders claim is that they had purchased the said property from judgment debtor, Dalip kumar Jain and a suit for possession being suit no. 2577/98, was filed against the judgment debtor, wherein an ex-parte decree of possession was passed on 25th May,2000. The decree holder took out execution and when the bailiff reported that the premises were found locked on 12th October,2000, on an application moved by the decree holder permission to break open the lock and seek police help if necessary was granted on 17th october,2000. In execution, the decree holder took possession of the property in question through bailiff from the applicant/objector on 21st October,2000. The objector filed the present objections on 30th october,2000 claiming that she had independent title to the suit property and was illegally dispossessed by the decree holders. In execution, the decree holder took possession of the property in question through bailiff from the applicant/objector on 21st October,2000. The objector filed the present objections on 30th october,2000 claiming that she had independent title to the suit property and was illegally dispossessed by the decree holders. She gave the details as to how she had purchased the property from one Banarsi Dass, who was a registered owner of the property. She also placed on record the documents showing the title of Banarsi Dass from whom she had purchased the property. ( 6 ) MR. A. K. SINGIA, learned counsel for the objector has taken me through the Apex Court decision in silverline Forum Pvt. Ltd. (supra) and has contended that the adjudication under Rule 101 Order 21 Code of civil Procedure can be based on admitted facts or even on the averments made by the objector. It is contended that the inquiry contemplated under rules need not necessarily be a detailed enquiry and the question that the objector was having independent title and was not bound, by the decree can be decided on admitted position of facts. In the case before the Supreme Court the objections were filed under Rule 97 Order 21 Code of Civil Procedure, 1908 before the objector was dispossessed in pursuance of warrants of possession issued in the execution of decree. There the objector had resisted the execution. Objections were filed under order 21 Rule 97 by the decree holder but the High Court had dismissed the objections on the ground that resistance or obstruction made by a third party to the execution could not be gone into under Order 21 Rule 97 of the Code of Civil Procedure. The Apex Court setting aside the High Court s order held that the Rules 97 to 106 in Order 21 of the Code are intended to deal with every sort of resistance or obstructions offered by any person. ( 7 ) IT was held that Rule 97 specifically provides that when the holder of decree for possession of immovable property is resisted or obstructed by any person in obtaining possession of the property as such decree holder has to make an application complaining of the resistance or obstruction and sub-Rule 2 of Rule 97 makes it incumbent on the Court to adjudicate upon the complaint in accordance with the procedure laid down. Likewise Rule 99 of Order 21 of the Code of Civil procedure is available to a third person who is wrongly dispossessed from the immovable property by the decree holder. ( 8 ) IN the instant case the applicant was dispossessed in execution of the decree and it is the applicant who has filed objections under Rules 99 and 100 order 21 of Code of Civil Procedure. Rules 99, 100 and 101 of Code of Civil Procedure are reproduced as under:- 99. Dispossession by decree-holder or purchaser-~ (1) Where any other person 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. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 100. Order to be passed upon application complaining of dispossession.-Upon the determination of the questions REFERRED TO to in Rule 101. the Court shall, in accordance with such determination,- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. 101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. ( 9 ) RULE 99 provides that if any person other than judgment debtor is dispossessed of immovable property by the holder of a decree for possession of such property he may make an application to the Court complaining of such dispossession and the Court is to adjudicate upon the application in accordance with the provisions contained in Rules 100 and 101 of Order 21 of the Code of Civil procedure. ( 10 ) THE Supreme Court in Silverline Forum Pvt. Ltd. case (supra) while considering the scope of Rule 101 order 21 of the Code of held as under;- "the questions which the executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e. g. , if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the question raised by the resistor or the obstructor must legally arise between him and the decree holder. "the Apex Court further held as under:- "the Court can make the adjudication on admitted facts or even on the averments made by the resister. Of course, the Court can direct the parties to adduce evidence for such determination if the Court deem it necessary. " ( 11 ) MR. A. K. Singla, vehemently contends that from the objections filed by the objector and the decree holders reply thereto, it is borne out that the objector was in possession of aforesaid property not through the judgment debtor, but was having independent title thereto. The judgment debtor in the present case is Dalip Kumar Jain. No document has been placed on record which could indicate that the objector, Kanchan Bala Thukral had obtained possession of the suit property through the judgment-debtor. The documents placed on record on the other hand establish that the objector had purchased the property from one Banarsi Dass, who was a registered owner thereof. In fact, the sale of the property in favour of Banarsi Dass was through the Court on behalf of the legal heirs of Harbans Lal including Dalip Kumar jain. The documents placed on record on the other hand establish that the objector had purchased the property from one Banarsi Dass, who was a registered owner thereof. In fact, the sale of the property in favour of Banarsi Dass was through the Court on behalf of the legal heirs of Harbans Lal including Dalip Kumar jain. As per Rule 101 Order 21 of Code of Civil procedure all questions (including questions relating to right, title or interest in the property) arising between the parties to the proceeding of an application under rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application have to be determined by the Court dealing with the application. The questions relating to right, title or interest in the property should be between the parties, i. e, decree holder and the objector and relevant for the adjudication of the objections. The relevant question to be adjudicated between the parties is to decide as to whether the objector is bound by the decree or she has a title to the property independent of the judgment debtor. In view of the facts given in the objections/application of the objector read with the reply of the decree holder and coupled with the documents placed on record, it is evident that the objector is not bound by the decree as she did not get the possession through the judgment debtor. ( 12 ) LEARNED counsel for the decree holder contends that the question relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 99 means that the objector s title to the property qua the person from whom she had purchased the same has also to be determined. The fallacy in the arguments of the learned counsel lies in the mis-reading of the provisions of Rule 101 Order 21 code of Civil Procedure, 1908. As REFERRED TO above the questions relating to right, title or interest in the property should arise between the parties to the objection petition and should be relevant for its adjudication. The fallacy in the arguments of the learned counsel lies in the mis-reading of the provisions of Rule 101 Order 21 code of Civil Procedure, 1908. As REFERRED TO above the questions relating to right, title or interest in the property should arise between the parties to the objection petition and should be relevant for its adjudication. The decree holder in reply to the objections has questioned the right, title or interest of Banarsi Dass in the property alleging that banarsi Dass was a fraud and had obtained the decree for specific performance against the legal heirs of Harbans lal by playing fraud and forging the documents. Certainly, validity of Banarsi Dass s title and the subsequent transfer of the property to the objector cannot be questioned in these objections as this does not relate to the right, title or interest arising between the parties to the application (objections), nor it is relevant for adjudication of the application. ( 13 ) ADMITTEDLY, it is not the case of the decree holder that the applicant/objector was in possession of the suit property through the judgment debtor. Even from the averments made by the resistor/objector in her objection/petition which is supported by documents it can be concluded that the objector was in possession of the suit property having independent title and not through the judgment debtor. ( 14 ) IN view of the observations made by the Apex court in Silverline Forum Pvt. Ltd. case (supra) the disputed question iof title of the objector is adjudicated on the admitted facts and averments made by the resister. No detailed enquiry by recording evidence is required to be held in the facts of this case. It is, therefore, held on admitted position of facts and the averments made by the resister that she was not in possession of the property in question through the judgment debtor and infact she has an independent title thereto. She was illegally dispossessed by the decree holder on 17th october,2000. As such, she needs to be re-possessed and put back in immediate possession of the suit property. The Decree holder is directed to forthwith restore back the possession to her of the property No. F-16, Desh bandhu Gupta Market, Karol Bagh, New Delhi shown read in the plan annexed as part of annexure a to the objections of which she was dispossessed by the decree holder. The Decree holder is directed to forthwith restore back the possession to her of the property No. F-16, Desh bandhu Gupta Market, Karol Bagh, New Delhi shown read in the plan annexed as part of annexure a to the objections of which she was dispossessed by the decree holder. ( 15 ) THE objector in the objection/petition has alleged that while illegally and forcibly dispossessing her the goods stored in the premises were thrown out which she later on kept on the second floor of the premises. She has alleged that the premises were being used as go-down for storing the stocks of her husband s business being run in the name of M/s. Best of India and m/s. Rakesh Kumar Thakural and by illegally depriving her of the user of the premises she has suffered losses for which she has claimed compensation/damages. The question whether the objector suffered damages and if so to what amount and to what extent needs to be adjudicated by holding an enquiry. ( 16 ) ACCORDINGLY, the inquiry under Rule 101 Order 21 code of Civil Procedure, 1908 needs to be conducted only on the point of determining the compensation/damages for depriving her of the user of her property by illegally dispossessing her. Regarding the enquiry to be held on the point of determining the compensation/damages, objections be listed before Regular Bench on 30th July,2002.