Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 3075 (MAD)

D. Faritha Begam v. Razia Banu

2010-07-26

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 19.4.2006 passed by the II Additional Sessions Judge, Coimbatore, in C.M.A.Nos.93 and 97 of 2005 confirming the order dated 15.3.2005 passed by the Principal District Munsif, Coimbatore, in E.A.Nos.414 and 411 of 2004; and the order dated 15.3.2004 passed by the same Principal District Munsif, Coimbatore in E.P.No.45 of 2004, these civil revision petitions are focussed. 2. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these revisions would run thus: (a) The revision petitioners along with the deceased Kathaija Bibi, filed the RCOP No.79 of 1986 as against the respondents on the ground of wilful default in payment of rent. The matter was contested by the respondents. Ultimately eviction order was passed and as against which no appeal was filed. (b) The said Kataija Bivi died on 18.11.2003. The fact also remains that even during her life time Kataija Bivi along with the revision petitioners herein filed as many as four E.Ps. and those E.Ps one after another were endorsed as not pressed and consequently dismissed, which according to the respondents herein was due to compromise arrived at between Kataija Bivi and the respondents herein. The peculiar feature is that during the pendency of the fourth E.P. the said Kataija Bivi died and thereafter the revision petitioners herein endorsed that E.P.as not pressed. The peculiar feature is that during the pendency of the fourth E.P. the said Kataija Bivi died and thereafter the revision petitioners herein endorsed that E.P.as not pressed. (c) While so, after the death of Kataija Bivi, once again the revision petitioners herein filed the fifth and latest E.P. No.45 of 2004, wherein the respondents in C.R.P.No.3687 of 2008 were shown as judgment debtors and out of those judgment debtors, Razia Banu and Shahira Banu constituting one group filed the E.A.No.414 of 2004 under Section 47 of C.P.C. and the remaining judgment debtors namely, 1.Saleem, 2.Dilshat, 3.S.Hahitha and 4.Naseera, constituting another group filed one another E.A.No.411 of 2004 under Section 47 of C.P.C. The sum and substance of the applications filed under Section 47 C.P.C. was to the effect that the decree was in executable on various grounds including the one that the revision petitioners herein even though minors at that time were added as co-petitioners along with Kataija Bivi in the RCOP; they relied upon the settlement deed allegedly executed by Kataija Bevi in favour of them settling the building which happens to be the subject matter of the RCOP; and that after the death of Kataija Bevi, the revision petitioners had no right to execute the decree. Accordingly, the judgment debtors 5 and 6/respondents in C.R.P.No.3685 of 2008, prayed for dismissing the E.P. as one not executable. (d) Counter also was filed in the application filed under Section 47 of C.P.C. by the revision petitioners herein. (e) During enquiry, on the side of the judgement debtors/respondents herein the 4th judgment debtor examined himself as P.W.1 along with one Abdul Sathar as P.W.2 and marked Exs.P1 and P2. On the side of the decree holders the 7th decree holder examined himself as R.W.1 and marked Exs.R.W.1 to R.W.4. (f) Ultimately, the Executing Court allowed the application under Section 47 of C.P.C. filed by the respondents herein/judgment debtors and dismissed the E.P.filed by the revision petitioners herein. 3. Being aggrieved by and dissatisfied with the said order of dismissal of the E.P. and the allowing of the application E.A.No.414 of 2004 filed by the respondents herein under Section 47 of C.P.C., appeal was filed by the revision petitioners herein before the appellate forum for nothing but to be dismissed. 4. 3. Being aggrieved by and dissatisfied with the said order of dismissal of the E.P. and the allowing of the application E.A.No.414 of 2004 filed by the respondents herein under Section 47 of C.P.C., appeal was filed by the revision petitioners herein before the appellate forum for nothing but to be dismissed. 4. Challenging and impugning the orders of the Courts below, these revisions have been focussed more or less on the same grounds, the gist and kernel of them would run thus: (i) The Courts below fell into error in understanding the correct proposition of law that the Executing Court cannot go beyond the decree. Simply because a partition suit has been pending between the parties, the question of the Executing Court refusing to execute the decree in RCOP No.79/1986 would not arise. (ii) The plea that the earlier Execution Petitions having been dismissed would evince that the deceased Kathija Bivi permitted the respondents herein to remain in possession of the property is totally untenable. 5. The learned Senior counsel for the revision petitioners reiterating the grounds of revisions would develop his arguement, which could pithily and precisely be set out thus:- (i) The scope of Section 47 of CPC has been explained and highlighted in various decisions, but the Courts below without adhering to the said dictum, simply assumed as though the Courts below were appellate forums over the eviction order passed in the RCOP. (ii) The decree in the RCOP was passed empowering and entitling Kataija Bivi and all other petitioners therein, so to say the revision petitioners herein to obtain delivery of possession from the respondents herein and it is not as though only Kataija Bivi was empowered to execute the decree. (iii) A mere reading of the eviction order would exemplify that the revision petitioners herein were given the right to execute the decree and in such a case, the Executing Court should not have gone into the other details and gave a finding that the order was inexecutable. (iv) There is nothing to indicate that the Rent Controller was lacking in jurisdiction in passing such an eviction order. (v) The Rent Controller after considering the pros and cons of the matter decided that the respondents herein should vacate and hand over possession of the property in favour of the revision petitioners herein, and as against which no appeal was filed. (v) The Rent Controller after considering the pros and cons of the matter decided that the respondents herein should vacate and hand over possession of the property in favour of the revision petitioners herein, and as against which no appeal was filed. (vi) Having not chosen to file any appeal, it would not open for the respondents herein to challenge the validity of the order of eviction passed in the RCOP. (vii) Summary proceedings are contemplated under the Rent Control Act and the respondents herein also denied the title of the landlords. But the Rent Controller rejected their plea and gave a finding that they should hand over possession of the demised premises. (viii) There is nothing to indicate that the order of eviction passed by the Rent Controller was a nullity. The alleged compromise pleaded on the side of the respondents herein was neither here nor there. (ix) Order 21 Rule 3 of C.P.C. has not been adhered to. If at all there was any compromise, as pleaded by the respondents herein then they must be in a position to place before this Court that such a compromise was recorded by the Court, but obviously and axiomatically there was no such procedure adhered to. (x) Simply because the EPs were dismissed on the earlier occasions that would not lead to any presumption of compromise as suggested by the respondents herein. Accordingly the learned Senior counsel prays for setting aside the orders of the Courts below by allowing these revisions and for directing the Executing Court to proceed with the E.P.filed by the revision petitioners herein. 6. Per contra, by way of torpedoing and pulverising the arguements as put forth and set forth on the side of the revision petitioners, the learned counsel for the respondents would develop his argument, the warp and woof of them would run thus: (i) The alleged settlement deed executed by Kataija Bivi in favour of the then minors, who happened to be the revision petitioners herein, was not marked before the Rent Controller. Ex facie and prima facie, the settlement deed as found enclosed for the first time in the typed set of papers filed by the revision petitioners would disclose and divulge that instead of citing the father of the minors as the guardian for them, simply their mother was cited as their guardian and as such, the said document is ex facie and prima facie invalid. (ii) In the RCOP the father was not cited as the guardian representing the minors, but only their mother was cited so. (iii) The findings of the Court in the order passed in the RCOP would reveal that only Kataija Bivi was recognised by the Court as the owner of the demised premises and not the other petitioners therein. (iv) The four E.Ps. were filed by Kataija Bivi along with the revision petitioners and only in view of the compromise those petitions were dismissed as not pressed every time. (v) Here no written formal compromise emerged between Kataija Bivi and the respondents herein and wherefore the question of getting it recorded under Order 21 Rule 3 of CPC did not arise at all. (vi) There was no attornment of tenancy also in favour of the revision petitioners by the respondents herein and Kataija Bivi also did not get such attonment of tenancy to be made by the respondents herein in favour of the revision petitioners. (vii) Consequent upon the death of Kataija Bivi, the minor petitioners herein, in the absence of any finding that they are entitled to the property and execute the decree, were not justified in filing the 5th and latest E.P. and the Courts below appropriately and appositely considered those facts and upheld the stand of the respondents herein, warranting no interference in the revision. Accordingly, the learned counsel for the respondents prays for the dismissal of revision petitions. 7. The points for consideration are as under: (i) Whether the Rent Controller gave any finding in favour of the then minor petitioners in the RCOP (now revision petitioners herein) that they are the owners of the demised premises or they along with the deceased Kataija Bivi were the owners of the demised premises and whether after the demise of Kataja Bivi, the revision petitioners herein established their right to execute the eviction order? (ii) Whether the non marking and non proving of the settlement deed during the Rent Control proceedings or even subsequently is fatal to the case of the revision petitioners herein.? (iii) Whether there is any perversity or illegality in the orders passed by the Courts below in view of allegedly they having exceeded their powers contemplated under Section 47 of C.P.C.? 8. Points (i), (ii) and (iii): All these points are taken together for discussion as they are interlinked and entwined, interconnected and interwoven with one another. 9. At the out set itself I would like to advert to the point that the Rent Controller at paragraph No.7 of the judgment without mincing words held that Kataija Bivi-P1 in the RCOP happened to be the owner of the property and as a sequela, the Rent Controller took the view that the respondents herein could only be the tenants. I would like to extract here under the relevant portion of the judgment in the RCOP. TAMIL 10. It is therefore crystal clear that before the Rent Controller, the validity or otherwise of the settlement deed referred to supra was not got decided and for that matter, the very settlement deed itself was not marked and no finding thereon also was given by the Rent Controller. Precisely the finding of the Rent Controller was that as on the date of filing of the RCOP and subsequently also, it was only the first petitioner therein who continued to be the owner and from that as a sequela the Rent Controller held that the respondents herein cannot, but be tenants under her, and that too, in view of the respondents contention that they were entitled to half share in the property, which was not proved by them before the Rent Controller. 11. I am fully aware of the fact that the scope of Section 47 of CPC is limited and there can be no second thought over it. From the admitted and indubitable facts the Court below which was seized of the matter under Section 47 of CPC decided the issue. It has to be found out as to whether the revision petitioners herein got any finding in their favour before the Rent Controller that they are entitled to evict the tenants, even along with the first petitioner therein, namely, Kataija Bivi. It has to be found out as to whether the revision petitioners herein got any finding in their favour before the Rent Controller that they are entitled to evict the tenants, even along with the first petitioner therein, namely, Kataija Bivi. Incidentally it has to be seen as to whether as contended on the side of the revision petitioners herein, as per the settlement deed, they acquired any right over that property. 12. The Executing Court as well as the appellate Court while dealing with the application under Section 47 of CPC and the consequent appeal, which arose thereunder respectively, dealt with the matter even though that settlement deed was not marked even during the proceedings under Section 47 of CPC. 13. The learned Senior counsel for the revision petitioners herein would draw the attention of this Court that as per the settlement deed the minor petitioners herein became absolute owners; they along with the deceased Kataija Bivi had the right to execute the decree and even after the death of Kataija Bivi the position did not get changed and that therefore, without proving anything further on the part of the revision petitioners herein, they had the right to get the decree executed, for which, the learned counsel for the respondents herein would convincingly and correctly put forth and set forth his argument, the epitome of it would be to the effect that the settlement deed now produced along with the typed set of papers would connote and denote that during the life time of Kataija Bivi, she continued to enjoy the property and that even the property tax as well as the other charges concerning the property were paid only by Kathija Bee and in such a case as per Muslim Law it cannot be taken that there was actually delivery of possession or transfer of interest in stricto sensu in the immovable property; even if the settlement is taken as Will, then the entire property could not have been transferred by Kataija Bivi in favour of the petitioners herein as reserve is contemplated under the Muslim Law. 14. No doubt, these are all serious questions of Muslim Law and in fact, before the Courts below also these issues were argued and the Courts also took into consideration the complicated issues involved in this matter. 14. No doubt, these are all serious questions of Muslim Law and in fact, before the Courts below also these issues were argued and the Courts also took into consideration the complicated issues involved in this matter. But the Rent Controller in no way dealt with these aspects as it is quite obvious that before the Rent Controller the settlement deed itself was not marked and no finding also was given. Above all, to the risk of repetition and pleonasm, but without being tautalogous, I would like to point out that the Rent Controller simply held that the first petitioner in the RCOP namely, Kataija Bivi happened to be the owner and with that finding, no more finding was given in favour of the revision petitioners herein. 15. No doubt, in the decretal order, the term ‘TAMIL, so to say in plural the revision petitioners along with Kataija Bivi were referred and that alone would not enure to the benefit of the revision petitioners to execute the said order of eviction, which was in stricto sensu in favour of only Kataija Bivi, so as to evict the respondents herein. 16. It is pellucidly and palpably clear in view of the factual scenario that consequent upon the death of Kataija Bivi, the revision petitioners herein were enjoined to establish their right to execute the eviction order and in that connection, within the frame work and scope, ambit and amplitude of Section 47 of CPC, both the Courts below held that the revision petitioners herein did not establish their right to execute the eviction order. The Executing Court also incidentally has given a convincing finding that when regular partition suit is pending, it is for the parties to work out their remedies in the partition suit and it is not for the Executing Court to decide as to whether the revision petitioners herein stepped into the shoes of the deceased Kataija Bivi for getting the eviction order passed in the RCOP executed as against the respondents herein, on the strength of the alleged settlement deed. 17. 17. The learned Senior counsel for the revision petitioners would submit that there is nothing to indicate that the Rent Controller was lacking in jurisdiction in passing such eviction order, for which, on the side of the respondents it was aptly replied that here the question of jurisdiction of the Rent Controller did not arise, but the point found established is that in favour of the revision petitioners, there was no finding by the Rent Controller that the revision petitioners could execute the decree as such along with the deceased Kataija Bivi. 18. Regarding the attornment of tenancy, arguments were advanced on the side of the respondents. I would like to point out that there is some significance in the argument as put forth on the side of the respondents. 19. Before the Rent Controller there was nothing to establish that consequent upon the settlement deed Kataija Bee herself made the respondents to attorn the tenancy in favour of the revision petitioners herein, but on the other hand, the finding was entirely different. The said Kataija Bivi continued to exercise her domain over the premises concerned by paying tax and also other charges relating to the property and in such a case, there was no finding by the Rent Controller that the tenancy was attorned in favour of the revision petitioners by the respondents herein. 20. No doubt, in this case, no appeal as against the eviction order was filed by the respondents herein. The question arises as to whether that would be fatal to their filing of the application under Section 47 of CPC. 21. Here the issue get boiled down to the extent of finding out as to whether the revision petitioners herein, after the death of Kataija Bivi acquired any right or had any subsisting right to execute the eviction order. 22. My discussion supra would exemplify that ex facie and prima facie there is nothing to indicate that the revision petitioners had the right to execute the decree in the absence of any finding in their favour as set out supra. 23. On the side of the revision petitioners, the following decisions have been cited. (i) (2007) 4 MLJ 361(SC) – DARSHAN SINGH VS. STATE OF PUNJAB, certain excerpt from it would run thus: "4. 23. On the side of the revision petitioners, the following decisions have been cited. (i) (2007) 4 MLJ 361(SC) – DARSHAN SINGH VS. STATE OF PUNJAB, certain excerpt from it would run thus: "4. The appellant filed Suit No.898 of 14.5.1990 for declaration and mandatory injunction seeking full pay and allowances for the period 25.5.1965 to 28.4.1978 and also claimed that he was entitled to cross efficiency bar w.e.f.1.9.1981 and consequential relief thereof i.e. proficiency step up increments, increase in leave encashment, pension and gratuity etc. with interest at 18% per annum. The appellant sought mandatory injunction for payment of the aforementioned dues with interest. 13. ...................This Court held that the Executing Court cannot go behind the decree unless it is shown that it was passed by a Court inherently lacking jurisdiction and thus was a nullity. The aforesaid decision of this Court squarely applies to the facts of the present case. This is not a case in which the decree on the face of it was shown to be without jurisdiction. It is not the case of the respondent that the Court which passed the decree was lacking inherent jurisdiction to pass such a decree. "14. This Court in the judgment reported in Bhawarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises (supra) and in C.Gangacharan v. C.Narayanan (Supra) has also taken the same view that the Executing Court cannot go behind the decree of a Court of competent jurisdiction except in the decrees void ab initio without jurisdiction. A bare poring over and perusal of the above excerpt, including the whole judgment would reveal that the cited judgement emerged on a different set of facts and I need not go on elaborating on that point. Only in such factual situation, the Honourable Apex Court at paragraph Nos.13 and 14 held as above, but here, the facts are entirely different and in such a case I am of the view that the said decision is not applicable here. (ii) (2007) 4 MLJ 1252 – D.SARASWATHY AND OTHERS VS. K.KRISHNASAMY AND OTHERS. This precedent once again is on a different set of facts and in order to distinguish and differentiate the facts, paragraph No.2 is extracted hereunder: "2. There had been various rounds of litigation regarding the subject matter. For proper appreciation of the contentious points raised by the parties, we may briefly refer to certain proceedings and relevant facts thereon. This precedent once again is on a different set of facts and in order to distinguish and differentiate the facts, paragraph No.2 is extracted hereunder: "2. There had been various rounds of litigation regarding the subject matter. For proper appreciation of the contentious points raised by the parties, we may briefly refer to certain proceedings and relevant facts thereon. The petitioners and respondents 2 to 4 are Sons and Daughters of first respondent – Krishnasamy through his first wife. The first respondent has got one son through his second wife – Pannerselvam, who is the third petitioner herein. The first respondent was allotted 1.4 acres in a family partition between him and his brothers. On 7.6.1969, the first respondent has sold the Suit property to the fifth respondent – Mayankathal. Three sons of Krishnasamy viz., respondents 2 to 4 have filed OS.No.694 of 1976 on the file of Sub-Court, Coimbatore for partition and separate possession of their 3/4th share, challenging the said Sale Deed executed by their Father as invalid and that it would not bind their 3/4th share. In the said suit, the first respondent remained ex parte. By the judgment dated 25.4.1990, the Subordinate Court, Coimbatore had held that the sale Deed in favour of the Fifth respondent-Mayankathal is not binding in respect of 3/4th share of respondents 2 to 4, but it is valid only in respect of the share of the first respondent i.e. 1/4th share. The title of Mayankathal in respect of 1/4th share out of 1.04 acres was held to be valid and binding between the parties." The above extract would show that the facts involved in the cited judgment are entirely different from the facts involved in this case and suffice to say that the said decision has been cited out of context. (iii) Similarly, the decision of this Court reported in (2005) 1 M.L.J.682 – HEMANATHAN AND ANOTHER V. N.KUPUSWWAMY AND OTHERS is on the following set of facts and in that connection paragraph No.3 is found extracted hereunder: "3. (iii) Similarly, the decision of this Court reported in (2005) 1 M.L.J.682 – HEMANATHAN AND ANOTHER V. N.KUPUSWWAMY AND OTHERS is on the following set of facts and in that connection paragraph No.3 is found extracted hereunder: "3. The further case of the petitioners is that the suit property was settled by a settlement deed dated 17.1.1960 in favour of one Thiru Jayaram Naidu for his life time, thereafter in favour of his grandsons Dheenadayalu and Gurumurthy for their life time with the right of enjoyment and the property is encumbered with ancestral mortgage debt created by Sanjeevi Naidu; that to clear the debts, Dheenadayalu, executed a mortgage deed by covering the minor son Sanjeevi Kumar and when the said mortgage deed was not discharged, the said Chokkammal brought the property in public auction through M/s.Murray & Co., Madras and thereafter the suit filed by the respondents 1 and 2 against one Gurumurthy, the father of the petitioners herein in O.S.No.8066 of 1980 was also dismissed, and the second appeal preferred by them in S.A.No.1066 of 1986 was also dismissed on 16.3.1990; that as per the settlement deed, the said Dheenadayalu is entitled to one half of the property along with his minor son and hence the respondents 1 and 2 herein are entitled to one half of the property and E.P.is liable to be dismissed." The very same comments offered for not relying on the earlier precedents are applicable to the third precedent also. 24. On the side of the respondents, the decision of the Honourable Apex Court reported in AIR 1971 SUPREME COURT 2184 – SYED SHAH GULAM GHOUSE MOHIUDDIN AND OTHERS VS. SYED SHAH AHMAD MOHIUDDIN KAMISUL QADRI (DEAD) BY HIS LEGAL REPRESENTATIVES AND OTHERS, has been cited so as to highlight that in respect of a minor Mohammedan, if father is alive he is the guardian and none else could be the guardian and as of now I need not ponder over the said point as to whether the minors were properly represented in the RCOP or not and my discussion supra would suffice to hold that the revision petitioners herein did not establish before the Executing Court that they had the subsisting right to execute the decree as against the respondents herein. 25. 25. The Courts below au fait with law and au courant with fats dealt with the matter elaborately and ultimately arrived at the correct conclusion that the parties should get their rights decided and adjudged only in the partition suit which is pending and in such a case I could see no merit in the revisions and accordingly the revision petitions are dismissed. No costs. 26. In view of the ratiocination adhered to by me supra, I am of the considered view that absolutely there is no necessity to allow M.P.Nos.2 and 2 of 2008 in C.R.P.Nos.3685 and 3686 of 2008 Accordingly, they are dismissed. Consequently, the other miscellaneous petitions are dismissed.