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Rajasthan High Court · body

2006 DIGILAW 2100 (RAJ)

Bajranglal Swami v. Shiv Bhagwan

2006-07-03

S.P.PATHAK

body2006
Honble PATHAK, J.—The matter, at the request of parties, has been heard finally at the admission state itself and is being disposed off by this judgment. 2. Appellant-plaintiff Bajranglal filed a suit for declaration and permanent injunction against the defendants, who are respondents herein and are said to be the trustees of Churu Charitable Trust, stating inter-alia that the land known as Poddaron-ki-Chhatri, which has 10 rooms, 8 verandahs, one well, water tank, temples of Shivji and Balaji and the canopies, in the year 1950 was in a condition of decay and nobody was there to lookafter this place to worship in the temples. At that time, his grandfather Kishandas came in possession of this place and got. the temples and canopies repaired and started worshiping in the temples and since then he was in possession and control of whole of the land and after his death plaintiffs father started worshiping in the temples, however, in the year 1970 he appointed Inder Singh to look after the place and provided him one room at the said place. It is further stated that as the father of plaintiff was in Government service and was unable to spare time for worshiping, he asked the plaintiff for worshiping and he started doing so but he after about two months in the year 1974 appointed Shankarlal as the priest for the temples and gave him accommodation in one room there. It is further stated in the plaint that in the year 1978 when he was raising the boundary wall and some other construction the Municipal Council served him show cause notice to which he replied and he made further developments there and also constructed a room for his residence in the year 1979. It is said that when in the year 1982 permission was sought from him by the Montessori Bal Bhawan Samiti, Churu for running a school in the vacant 6 rooms, he agreed to it. The plaintiff stated further development of the place by him and stated that one room was given by him for the office of Lions club and authorized them by his consent for water and electricity connection. The plaintiff stated further development of the place by him and stated that one room was given by him for the office of Lions club and authorized them by his consent for water and electricity connection. By the said averments the plaintiff tried to establish himself to be the owner of the disputed land being in his possession for more than 12 years, and sought for the reliefs prayed therein including declaring himself to be owner of the land in dispute and for quashing and setting aside the judgment and decree dated 11.12.2004 passed in Civil Suit No. 17/2004 and for permanent injunction. 3. The Original Civil Suit No.17/2004 was filed by the trustees of the said Charitable Trust against the Director of Montessori Bal Bhawan for eviction and arrears of rent stating that the Patta of land in question which was gifted to the trust was in the name of Late Ramnarayan and his sons Biharilal and Kunjilal Poddar and its possession till its gift, was with them and the premises were being looked after b c the servants kept on salary, however, Bhagwati Prasad encroached upon the land and y started the school and also raised construction there. After framing of issues and recording of evidence of parties, the said suit was decreed against Bhagwati Prasad and in favour of the plaintiffs in that suit, the trustees of the said charitable trust were found entitled to receive possession and mesne profit @ 1200 per month from 25.11.1998 from defendant. The said suit was decreed on 11.12.2004. The appeal filed by said Bhagwati Prasad before this Court was ultimately withdrawn seeking time for vacating the premises and this Court vide order dated 14.7.2005 with the consent of parties granted time to Bhagwati Prasad upto 15.5.2007 for vacating the premises imposing certain conditions. 4. The case of the appellants in the suit with which the present appeal relates is that the patta in question on which the respondents rely was issued by the State of Bikaner in respect of Badi adjoining to the land in dispute and in respect of the land in dispute no Patta was ever issued in any name, however, the defendants under the garb of the said proceedings in Civil Suit No. 17/2004 (106/89) want to establish their ownership on the premises in dispute also and thereby evict him from the land in his possession. So many objections were raised in respect of the gift-deed being forged and fabricated and it was stated that the action of the defendants in filing the suit, getting it decreed against Bhagwati Prasad and then withdrawing the appeal all was a part of pre-planned scheme of the defendants so that the appellant be also evicted from the premises. He therefore prayed for declaring himself to be the owner and in possession of the disputed land and the buildings and canopies in the premises as stated in Para 1 of the suit, declaring the decree dated 11.12.2004 void, nullity and ineffective against the rights of the plaintiff so also against the temples and its lands and prayed for permanent injunction not to dispossess him from the premises and also prayed for granting other suitable relief and costs. 5. During the pendency of the suit filed by the appellant, the defendants moved an application under Order 7 Rule 11, C.P.C. on 20.9.2005 and while narrating the fate of Civil Suit No.17/2004 - Satyanarayan & Ors. vs. Bhagwati Prasad, and also the outcome of the appeal filed by Bhagwati Prasad in that matter, it was contended that in the circumstances, defendants are entitled to possession of the land as judgment and decree dated 12.11.2004 has been sustained by this Court whereas the suit of the plaintiff seeking reliefs on the basis of his claiming ownership on the disputed premises is barred by law and is not maintainable, therefore, the same be rejected. The appellant-plaintiff replied to the application and stated that the judgment & decree passed in Civil Suit No.17/2004 was the result of collusion and fraud otherwise there was no reason for withdrawing the appeal by defendant Bhagwati Parasad in that suit and thereafter not filing the undertaking as per the orders making it convenient for the plaintiffs to get the decree executed which goes to show they under a collusion played a fraud and after getting the decree want to get the present plaintiff evicted. According to the plaintiff the decree obtained by playing fraud in collusion with defendant Bhagwati Prasad in Civil Suit No.17/2004 is a nullity and is not liable to be executed. According to the plaintiff the decree obtained by playing fraud in collusion with defendant Bhagwati Prasad in Civil Suit No.17/2004 is a nullity and is not liable to be executed. The learned trial Court heard the parties on the application and scanning the material and discussing the related law allowed the application filed by defendants and came to the conclusion that the suit filed by the plaintiff was not maintainable and hence dismissed the suit. Aggrieved, the plaintiff-appellant has approached this Court by filing this appeal. 6. Heard learned Counsel for the parties and perused the material available on record. 7. The contention of the learned Counsel for the appellant is that the learned trial Court has not properly appreciated the provisions contained in Order 7 Rule 11, C.P.C. inasmuch as that the learned trial Court has taken into consideration the contents of application moved by the respondent trustees and on that basis the trial Court reached to the conclusion that the suit was barred by law. According to learned Counsel, only the statement made in the plaint was required to be seen for coming to the conclusion as to whether the suit was barred by law. It has next been contended that a decree which is obtained by fraud and in collusive manner is a nullity and it has not no binding effect on the appellant and it could be set aside only by filing a suit under the provisions of the Specific Relief Act. The learned Counsel submits that Bhagwati Prasad, the respondent in the case, who was also defendant in the earlier suit filed by the trustees against him, acted in a manner which establishes the fact that the suit was collusive in nature because against the judgment and decree passed in earlier Civil Suit No. 17/2004 was challenged by him but was subsequently withdrawn that goes to show that he wanted to help the trustees to oust the appellant from the suit premises. The learned Counsel submitted that the suit was maintainable and the learned trial Court has erred in holding that suit was barred by law. In support of submissions, the learned Counsel has placed reliance on AIR 1985 (SC) 577 - Abdulla Bin Ali vs. Gallapa (WLC 2005(2) (SC) 588) - Popat & Kotecha Property vs. S.B.L Staff Association (DNJ 2005(1) (SC) 1) - Sumitra Devi Anand vs. Shanti Devi(d) by Lrs. In support of submissions, the learned Counsel has placed reliance on AIR 1985 (SC) 577 - Abdulla Bin Ali vs. Gallapa (WLC 2005(2) (SC) 588) - Popat & Kotecha Property vs. S.B.L Staff Association (DNJ 2005(1) (SC) 1) - Sumitra Devi Anand vs. Shanti Devi(d) by Lrs. vs. Shanti Devi(d) by Lrs. (2002(2) Apex Court Judgments (SC) 245) - Tanzeem-e-Suffa vs. Bibi Hillman (2004(2) Apex Court Judgments (SC) 177) - Sopan Sukh Dev Sable vs. Asstt. Chairty Commissioner (2004(2) CCC (Raj.) 562) - Teja Rani vs. Birlbal Ram (1999(2) CCC (Raj) 463) - Mohanlal Sukhadia University vs. Miss. Priya Soloman (DNJ 1995 (Raj.) 703(DB)) - Pala Singh & Anr. vs. Board of Revenue & Ors. ( AIR 1989 (Raj.) 43 ) - Mohd. Aleem vs. Maqsood Alam, and 1973 UJ (SC) 50 - M. Kallapa Setty vs. M.V. Laxminarayan Rao. 8. On the other hand, it has been submitted that the learned trial Court has correctly held that the present suit filed by the plaintiff-appellant was barred by law as would appear from the statement made in the plaint and claim that in relation to the subject matter of the suit, the trustees who are respondents in this case, have filed a suit on the basis of gift deed seeking eviction on the -round of encroachment made by Bhagwati Prasad, who was defendant in the earlier suit and in that suit the gift deed was considered to be valid and in favour of the trustees as the owners of the property. It has also been contended that what the plaintiff-appellant wants is that though on previous occasion he was contesting the suit from outside and was watching all the proceedings and when the suit was decreed and an appeal preferred before the High Court was dismissed for the reason that the defendant in that suit Bhagwati Prasad made a prayer before the Court that since he was running a Bal Vidhyalaya in the suit premises and students may not suffer, he may be granted some time to vacate the premises, as such the Honble Court granted time for two sessions i.e. upto 2007. According to the learned Counsel, now when as per the directions of the Honble High Court an undertaking was required to be filed before the trial Court, which has not been done, therefore, the present suit has been filed so that the respondent be restrained from executing a legal and valid decree, which is not permissible under the law. It has further been submitted by the learned Counsel that in the earlier suit the real brother of plaintiff Yogeshwar Swami was examined as DW2 and that suit continued for years and further as per the averments made in the present plaint, the suit property was given to Bhagwati Prasad by the plaintiff then what was the reason why nothing of that sort was stated in the written statement filed in the earlier suit. According to learned Counsel, the facts speak themselves that to delay the execution proceedings, the present suit has been filed when the compliance of the High Courts order was not made by Bhagwati Prasad and plaintiff has made out a case to the effect that his grandfather had encroached upon the suit land and on account of long possession he be declared as owner of the property and the decree passed in the earlier suit be declared as nullity and ineffective against the plaintiff. In support of the submissions, the learned Counsel has placed reliance on AIR 2004(SC) 511 - Ashan Devi vs. Phulwasi Devi, AIR 1998 SC 1827 - Shreenath vs. Rajesh, and 2004 (4) RLW 2566 - Ayub Khan vs. Ahsanullaq & Ors. 9. I have considered the submissions made before me. 10. Before proceeding further, it shall be proper to examine the authorities cited before me. Authorities Cited On Behalf of Appellant: 11. In case of Abdulla Bin Ali vs. Gallapa, the Honble Apex Court has observed that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendant in the written statement. 12. Authorities Cited On Behalf of Appellant: 11. In case of Abdulla Bin Ali vs. Gallapa, the Honble Apex Court has observed that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendant in the written statement. 12. In case of Popat & Kotecha Property vs. S.B.L Staff Association, tile Honble Apex Court has observed in Para 24 as under:- "When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdevs case ( 2004(3) SCC 137 ), the inevitable conclusion is that the Division Bench was not right in holding that Order VII Rule 11 C.P.C. was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years, needs evidence to be adduced. It is not a case where the suit-from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order VII Rule 11. This is not so in the present case." In case of Sumitra Devi Aitand vs. Shanti Devi(d) by Lrs vs. Shanti Devi(d) by Lrs., in the facts and circumstances of the case, the Honble Apex Court took the view that in the subsequent suit filed it was essential to grant injunction as the suit was to be tried because in that case a consent order was passed by the Delhi High Court on the agreement of the parties that the petition be disposed of with liberty to the petitioners (appellants) to file a suit for challenging eviction decree on the ground of fraud, which writ petition was disposed of on 9.1.2002 passing the following order:- "I am also of the view that since the petitioner has objected to the execution of the decree on the ground of fraud, he may have a right to file a suit to challenge the decree on such ground. Without, therefore, going into the question as to whether the decree could be challenged on the ground of fraud before the Executing Court itself, 1 dispose of this petition with liberty to the petitioner to challenge the decree on the ground of fraud by filing a regular civil suit." In case of Tanzeem-e-Suffa vs. Bibi Hillman, the Honble Apex Court in the facts and circumstances of the case observed in Para 15 as under:- "We find that in the case in hand the appellant is claiming, its independent right over the property and asserts its possession thereon. Order 21 Rule 101 clearly provides that all questions relating to right, title or interest in the property relevant to the adjudication of the application, shall be dealt with the application and not by a separate suit. The High Court, therefore, erred iii refusing to hear the appellant, on the ground that it has already filed a suit for declaration of its title and for declaration that the decree passed in title suit No.8 of 1983 is blot binding on it. The provision contained under Order 21 Rule 101 C.P.C. seems to have escaped notice of the High Court while passing the order. We would also like to observe that the reasoning given by the execution Court while rejecting the application of the appellant as indicated in the order of the High Court, that the remedy of the appellant would like by moving an application under Order 21 Rule 99, C.P.C. is also erroneous as in case of Brahmdeo Choudhary ( 1997(3) SCC 694 ), it has been held that it should not be insisted that possession be delivered first and the objector may later on move the Court under Order 21 Rule 99, C.P.C." In case of Sopan Sukh Dev Sable vs. Asstt. Charity Commissioner, the Honble Apex Court has observed that the real object of Order 7 Rule 11 of the Code is to keep out of Court irresponsible law suits and, therefore, Order 10 of the Code is a tool in the hands of the Court by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the Court in the sense that it is a bogus and irresponsible, the jurisdiction under order 7 Rule 11 of the Code can be exercised. The Court further observed in Paras 25 and 26 while considering the point as to whether injunction can be granted in favour a trespasser:- (25). Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relic Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction? In Mahadev Savlaram Sheike vs. Putie Municipal Corporation, ( 1995 (3) SCC 33 ), it was held, after referring to Woodrofe on "Law relating, to injunction: L.C. Goyal Law of injunctions. David Bean Injunction Jayee on injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha vs. MCD, ( 1993(3) SCC 161 ) where it was observed that injunction is discretionary and that: "Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court. " (26). In that context this Court quoted Shiv Kumar Chadha vs. MCD, ( 1993(3) SCC 161 ) where it was observed that injunction is discretionary and that: "Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court. " (26). Reference was also made to Dalpat Kumar vs. Prahlad Singh, ( 1992 (1) SCC 719 ) in regard to the meaning of the words prima facie case and balance of convenience and observed in Mahadeos case (Supra) that: "It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession." In case of Teja Ram vs. Birbal Ram, this Court has held that averments in the plaint only have to be considered while deciding the application under Order 7 Rule 11, C.P.C. and the defence is to be tried out on merits during trial. 13. In case of Mohanlal Sukhadia University vs. Miss. Priya Soloman, it has been observed by this Court that Clause (d) of Rule 11 of Order 7 applies to those cases where in the plaint without any doubt or dispute it is shown that the suit is barred by any law in force. 14. In Pala Singh & Anr. vs. Board of Revenue & Ors., it has been observed by this Court that Order 7 Rule 11, C.P.C. castes a duty upon the Court to reject the plaint when it does not disclose any cause of action but if a bare reading of the plaint discloses the cause of action then the plaint cannot be dismissed under Order 7 Rule 11 of the, C.P.C. 15. In Mohd. Aleem vs. Maqsood Alam, this Court, in a matter where a compromise decree was challenged, observed that the only remedy of a person who wishes to challenge a compromise decree on the ground of fraud is to file a suit for setting aside the decree and such an objection cannot be entertained during, the course of execution proceedings. 16. Aleem vs. Maqsood Alam, this Court, in a matter where a compromise decree was challenged, observed that the only remedy of a person who wishes to challenge a compromise decree on the ground of fraud is to file a suit for setting aside the decree and such an objection cannot be entertained during, the course of execution proceedings. 16. In M. Kallapa Setty vs. M.V. Laxminarayan Rao, the Honble Apex Court taking into consideration the facts and circumstances of the case has observed that once it is accepted that the plaintiff was in possession of the property then his possession has to be protected as against interference by someone who has not proved to have a better title than himself to the suit property. Authorities Cited On Behalf of Respondents: 17. In Ashan Devi vs. Phulwasi Devi, the Honble Apex Court has observed that provisions of Order 21 Rules 97 and 99 have been widely and liberally construed to enable the executing Court to adjudicate the inter-se claims of the decree holder and the third parties in the executing, proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits. In Para 15 & 16 the Court said:- 15. We would, first, take up for consideration the main question involved between the parties as to whether the objectors could have made an application under O.XXI, Rule 99 to the executing Court and seek adjudication of their right and title through the executing Court in accordance with O.XXI, Rule 101 of the Code or their remedy lay in filing an independent suit. O.XXI, Rules 99 and 101 read as under: "Order XXI, Rule 99. Dispossession by decree-holder or purchaser.- (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. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions here contained. Order XXI. Rule 101. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions here contained. Order XXI. Rule 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." 16. It is necessary at this stage to take into account the object of drastic amendments introduced to the Code of Civil Procedure by Act No. 104 of 1976. This Court in the case of Shreenath and another (Supra), has compared the unamended provisions of the Code in Order XXI and the provisions introduced after amendment. It is noticed that earlier under the Code, third party dispossessed in the execution of the decree was required to institute an independent suit for adjudication of its right and claims. In order to shorten the litigations concerning same properties between same and third parties, claims of third parties to the property in execution are now required to be determined by the executing Court itself in accordance with provisions under Order XXI, R. 101 with right of appeal to the higher Court against such adjudication treating it to be a decree under Order XXI, Rule 103 of the Code. On the amendments introduced to the Code by Amendment Act of 1976, this Court observed thus:- In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. In Ayub Khan vs. Ahsanullaq & Ors., this Court in Para 11 has observed as under:- "I have given my thoughtful consideration to the rival submissions. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. In Ayub Khan vs. Ahsanullaq & Ors., this Court in Para 11 has observed as under:- "I have given my thoughtful consideration to the rival submissions. Ill view of the specific provision of Order 21 Rule 101, C.P.C. and the judgments relied upon, the legal position cannot be disputed that all the questions including, questions relating to right, title or interest of the objector in the disputed property shall be decided in the execution case and not by a separate suit. It is also not in dispute that the plaintiff has an unqualified right to withdraw the suit at ally stage without any permission to institute fresh suit. But upon a deep consideration of both the applications and decisions thereon by the trial Court, it makes very clear that the only intention of the objector is to delay the execution proceedings. He himself instituted the suit 16 days prior to filing the objections. The basis of the civil suit and the objections is the same i.e. an agreement said to be executed by the plaintiff in favour of the objector on 4.4.1989. It took eight years in completion of the, trial of the suit and now the civil suit is posted for final submissions for some considerable time. It is significant to observe here that it was the case of the plaintiff on application under Order 23 Rule 1 C.P.C. that there is no formal defect in the suit and the same was the observation of the trial Court. In that case, there can be no apprehension for the objector to say that the suit filed by him suffers from formal defect. Apart from this, this is not a case of simple withdrawal without any condition, rather the objector made the prayer for withdrawal of the suit with a precondition that he would get his objections to be decided in the execution petition. What the trial Court did is that since the objections to be decided in the grounds in the suit are based on the same agreement and the evidence of the parties on the same questions and the Court would decide the civil suit as well as the objections together on merits. What the trial Court did is that since the objections to be decided in the grounds in the suit are based on the same agreement and the evidence of the parties on the same questions and the Court would decide the civil suit as well as the objections together on merits. In view of these findings of the Court, there should be no grievance to the objector as the said orders are not going to prejudice the case of the objector on merits in any way except one the his purpose to delay the execution petition in snow not going to be served. The trial Court has not declined to consider and decide the objections of the objector in accordance with the provisions of Order 21 Rule 101, C.P.C. One more submission was also made on behalf of the objector that this Court in S.B. Civil Revision Petition No.66 3/99, filed by the objector directed the executing Court vide order dated 28.5.1990 to decide the objections of the objector. But the trial Court has no where expressed this opinion that the Court is not going to decide the objections, rather, it has specifically observed that the objections and the suit both would be decided together on merits on the basis of the evidence already recorded. After having gone through the principles laid down by the Honble Apex Court and various High Courts, it becomes clear that after the amendment introduced in the Code of Civil Procedure by Amendment Act No. 104 of 1976 a drastic change has been made and now in view of order 21 Rule 101 CPC, filing of separate suit for determination of right title etc. of the third party has not been considered proper and all objections regarding right title etc. of the objectors are required to be decided in the execution case and not by filing a separate suit. It further appears from the principles laid down in the above authorities that while considering application under Order 7 Rule 11 of the C.P.C., the averments made in the plaint in its totality are required to be seen and if the Court comes to the conclusion that on the basis of statement made in the plaint the suit is barred then the application under Order 7 Rule 11, C.P.C. requires to be allowed. Keeping in view the above principles in mind, now I proceed to examine the present case in the light of arguments made before me. 18. The case of the plaintiff is that his grandfather had encroached upon the suit property in the year 1950 and in the year 1970 after his death the property came to be possessed by the father of the plaintiff and in the year 1974 the plaintiff was handed over the property as his father was a Government servant and was not able to spare time for Sewa Pooja of the temples. It is further the case of the plaintiff that he gave some of the rooms constructed either by his grandfather or father to Bhagwati Prasad, who is respondent in this case and was also defendant in the earlier suit filed by the trustees, who are defendants. The plaintiffs further case is that when he came to know about passing of the judgment and decree in earlier suit No. 17/2004(106/1989, 23/1994), titled Satyanarayan and Ors. vs. Bhagwati Prasad, he immediately made efforts and contacted the lawyer who was conducting the case on behalf of Bhawati Prasad and he was intimated by him that the appeal preferred against the judgment and decree dated 11.12.2004 has been dismissed, therefore, appellant a prehending his dispossession has filed the suit and in the suit allegations are made that on the basis of collusion a decree was obtained by the trustees in the earlier Suit No.17/04 and as the decree obtained earlier was a collusive decree and a fraud was played upon the Court, therefore, the present suit is maintainable. The further case of the plaintiff-appellant is that the act by which Bhagwati Prasad respondent withdrew the appeal from the High Court is a circumstance which establishes the fact that he wanted to help the trustees otherwise there was no reason why they would have withdrawn the appeal which was filed in the High Court. It is also the case of the appellant in the plaint that the gift deed by which the defendant trustees claim themselves to be the owners of the suit property was not a valid gift deed, therefore, it created no right whatsoever in favour of the trust as there was no consent of other owners of the property while the property is alleged to have been given to the trust under a gift deed. 19. 19. The learned trial Court after considering the entire matter, came to the conclusion that under the provisions of Order 7 Rule 11, C.P.C. the suit was not maintainable as mere allegations made in the plaint regarding collusive decree were not sufficient and in relation to the subject matter of the present suit already the matters relating to gift etc were considered and it was found that under a valid gift the property, which is subject matter of the present suit, was transferred to a trust and the trustees filed the suit for possession and mesne profits. The suit was decreed, therefore, the learned trial Court was of the opinion that since a valid decree passed in favour of respondent, trustees, the plaintiff has filed the present suit to delay the execution and the subsequent suit filed by the plaintiff was barred by law in view of provisions contained under Order 21 Rule 97 to 104 of C.P.C. The findings so arrived by the learned trial Court cannot be said to be illegal, unjust and improper in view of the fact that plaintiff has contested his claim as a trespasser. He has no title whatsover of the property. The plaintiff says that he had allowed Bhagwati Prasad to run a school in that property but Bhaawati Prasad has nowhere taken such a stand. It is also significant to note that the real brother of plaintiff was examined as DW2 in the trial Court. Therefore, makina allegation in the plaint that it was not within the knowledge of the plaintiff that any such suit was filed by the trustees against Bhagwati Prasad is not believable for the reason that earlier Suit No. 17/2004 was filed as early as in the year 1989 and was decided on 11. 12.2004. In these long 16 years, 9 witnesses were produced in the Court and several documents were exhibited. Specific issues were made in relation to the gift deed and the Court reached to the conclusion that gift was a valid one, therefore, decree for eviction was passed on 11.12.2004. An appeal preferred to the High Court was dismissed on 14.07.2005 with the following observations: "The matter was argued on 12.7.2005 at length, and thereafter learned Counsel for the appellant sought time to take instruction from the appellant, as such, matter was passed over for today. An appeal preferred to the High Court was dismissed on 14.07.2005 with the following observations: "The matter was argued on 12.7.2005 at length, and thereafter learned Counsel for the appellant sought time to take instruction from the appellant, as such, matter was passed over for today. Today, learned Counsel for the appellant submits that appellant is inclined to withdraw the appeal on the condition that appellant is granted some reasonable time to vacate the suit premises. This request is not seriously opposed by learned Counsel for the respondents. The appeal is accordingly dismissed as withdrawn. With the consent of the parties, the appellant is granted time upto 15.5.2007 to vacate the premises on the condition that the defendant gives an undertaking before the learned trial Court within one month from today that on or before the expiry of the above period he will peacefully hand over the vacant possession of the suit premises to the plaintiff, and that during this period he will not, in any manner, transfer the possession of the suit premises to anybody. Likewise the entire decretal amount, so also all arrears of rent, if any, shall be deposited by the appellant in the trial Court within one month from today, and shall further continue to deposit amount equal to the monthly rent by way of damages for use and occupation by 15th of each succeeding month, till the actual delivery of possession. In case the appellant fails to comply with any of the above conditions, the respondent will become automatically entitled to execute the decree forthwith." In the facts and circumstances of the present case and by reading of the plaint of the present case, it appears without any manner of doubt that the plaintiff appellant was having full knowledge about fling of the previous case by the trustees where the suit was decreed on 11.12.2004 and in that suit his real brother appeared as witness and Bhagwati Prasad the defendant in that suit, who is said to be allowed by the plaintiff to run the school in the suit premises nowhere stated what the plaintiff is stating in the plaint. It is correct that when allegations of fraud etc. It is correct that when allegations of fraud etc. are made then it should be taken into consideration but at the same time when it appears from the facts and circumstances of the case by perusal of the plaint that the, subsequent, suit filed is one by which the intention is to delay the execution proceedings then in such circumstances when once the matter in relation to the same subject matter has been tried then subsequent suit is to be considered as barred by law. It shall be proper here to notice that in view of amendment made in the Code of Civil Procedure and in view of principles laid down by the Honble Apex Court particularly ill the case of Ahsan Devi (Supra), the procedural law which prolongs the litigation should be avoided because the objections regarding ownership title etc. of a third party or stranger or any other person can very well be taken into consideration in the execution proceedings when objection petitions filed. 20. In the present matter, when earlier suit filed by the trustees has been decreed and on the basis of the prayer made by the defendant Bhagwati Prashd in that suit time upto 2007 has been granted to vacate the premises in the appeal, then filing of this subsequent suit is clearly indicative of the fact that the present suit and the appeal has been filed. just to delay the execution proceedings. The trial Court has considered the matter in detail and I have also carefully gone through the judgment and decree passed by the trial Court and in the peculiar facts and circumstances of the present case, taking into consideration the provisions of order 21 Rule 97 to 101 of the, C.P.C., I am of the opinion that after passing of the judgment and decree in the earlier suit on the basis of vague allegations of fraud etc., the subsequent suit filed cannot be said to be maintainable in view of provisions contained in Order 7 Rule 11, C.P.C. Hence, I do not find any merit in the contention of the learned Counsel for the appellant that present suit was maintainable and the trial Court has not properly taken into consideration the provisions of Order 7 Rule 11, C.P.C. Thus, the appeal filed is devoid of merit and is liable to be dismissed. In the result, the appeal stands dismissed.