JUDGMENT Anima Hazarika, J. 1. The legality and validity of the order dated 25.02.2010 passed in Title Execution Case No. 12 of 2009 by the learned Civil Judge No. 2, Kamrup at Guwahati, whereby and whereunder the learned trial Court disposed of the Execution Case holding that decree has already been executed as per report of the Civil Nazir without adjudicating the Misc. (J) Case No. 263 of 2009 filed by the petitioner under Order 21 Rule 100,97, 98 and 100 of the Code of Civil Procedure (Code for short). The petitioner was in possession of a plot of land measuring 2 kathas 5 lechas comprising of Dag No. 435 and 546 at village Azara near National Highway No. 37, mouza Ramcharani in the district of Kamrup which is bounded by :-- North: Land under occupation of Shri Ranjan Medhi South: Land under occupation of Shri Khanka Baruah East: National Highway No. 37 West: Land under occupation of Shri Hari Das & Debar Ali 2. A suit being Title Suit No. 187 of 2009 was filed by Md. Mamtaj Ali, who has been arrayed as opposite party No. 1 herein against the opposite party No. 2, Smt. Nalini Moral on the file of the Civil Judge No. 1 Kamrup at Guwahati seeking a decree under Section 6 of the Specific Relief Act for recovery of khas possession of the suit land described in the schedule and for injunction. But the petitioner was not arrayed as party defendant in the suit and the plaint would reveal that Smti Nalini Moral had sold out 18 lechas of land out of the land measuring 1 bigha 1 katha 13 lechas to the plaintiff Mr. Mantaj Ali on 09.05.2008 by a registered sale deed being sale deed No. 6964 of 2008 and delivered khas possession on the same day and since then he is in possession of the suit land till 05.05.2009 wherefrom he was illegally dispossessed and hence the suit. The suit land as described in the plaint wherefrom the decree for khas possession was sought, reads as follows:-- SCHEDULE A plot of land measuring 18 (eighteen) lechas covered by dag No. 546, K.P. patta No. 486 of Revenue village Azara, mouza Ramcharani, District Kamrup, Assam along with two tinchali house and bounded by:-- North: Land of Dr. The suit land as described in the plaint wherefrom the decree for khas possession was sought, reads as follows:-- SCHEDULE A plot of land measuring 18 (eighteen) lechas covered by dag No. 546, K.P. patta No. 486 of Revenue village Azara, mouza Ramcharani, District Kamrup, Assam along with two tinchali house and bounded by:-- North: Land of Dr. Kumudeswar Baruah South: Land of Shri Bishwajyoti Pathak East: National Highway No. 37 Wast : Land of Md. Debar Ali 3. The Title Suit was filed on 07.08.2009 which, however, was transferred to the Court of learned Civil Judge No. 2, Kamrup, for disposal and the learned trial Court on 10.08.2009 issued summons to the defendant fixing 27.08.2009 for S.R. and W.S. On 27.08.2009, the Court on perusal of the report of the process server which indicates that the summons was received by the defendant herself and since the defendant neither appeared nor filed written statement, the learned trial Court fixed 10.09.2009 for ex-parte hearing. On 10.09.2009 the plaintiff submitted evidence on affidavit along with documents. Accordingly next date was fixed on 15.09.2009 for argument. On 15.09.2009 the argument was heard fixing 24.09.2009 for judgment and on 24.09.2009 the judgment and decree was passed. 4. The ex parte decree so obtained put to execution being Title Execution Case No. 12 of 2009 and on 05.12.2009 the petitioner was evicted from the entire land measuring 2 kathas 5 lechas though the decretal land was about 18 lechas and in consequence thereof an FIR was filed on 05.12.2009 against the forceful eviction from his land and on enquiry he came to know that a decree was passed in Title Suit No. 187 of 2009 whereof he was evicted from the land, in question, in pursuance of the Title Execution Case No. 12 of 2009. 5. Being faced with such a situation the petitioner on 08.12.2009 filed an application before the learned trial Court under Section 47, 144 read with Section 151 of the Code for restitution of the petitioner over his own land measuring 2 kathas 5 lechas described in the schedule of the application being Misc. 5. Being faced with such a situation the petitioner on 08.12.2009 filed an application before the learned trial Court under Section 47, 144 read with Section 151 of the Code for restitution of the petitioner over his own land measuring 2 kathas 5 lechas described in the schedule of the application being Misc. (J) Case No. 263 of 2009 and upon hearing the petitioner the learned trial Court issued show cause notice to the opposite party No. 1 vide order dated 09.12.2009 to show cause as to why the petitioner should not be put in possession from where he has been dispossessed and by the said order the writ of execution was recorded and the execution of Title Execution Case No. 12 of 2009 was stayed till 15.12.2009. 6. Thereafter on 04.01.2010 the petitioner filed an application for converting the application being registered as Misc. (J) Case No. 263 of 2009 to an application under Order 21, Rules 97, 98 and 100 of the Code read with Section 47, 144 and 151 of the Code and the same was allowed. The petitioner simultaneously has also filed an application under Order 39 Rule 1 and 2 of the Code being Misc. (J) Case No. 12 of 2010 and by an order dated 25.01.2010 an ex parte order of injunction was passed which, however, was dismissed on 25.02.2010 for non compliance with the provisions of Order 39 Rule 3 of the Code, though the same is directory and not mandatory. The petitioner has already taken steps to prefer an appeal against the order dated 25.02.2010. The petitioner has also filed an application under Order 26, Rule 9 of the Code on 25.02.2010 for appointment of a Commissioner to ascertain as to whether the decreetal land and the land upon which the execution undertaken was similar or not, whereon objection was called for but before the objection was heard, the learned trial Court accepted the report of the Civil Nazir dated 05.12.2009 holding that the decree has been executed to the satisfaction of the decree holder thereby the case stands disposed of on 25.02.2010 against which the instant revision petition hay been filed questioning the legality and validity of the order passed by the learned trial Court in Title execution case No. 12 of 2009. 7. Heard Mr. K. Bhattachar Jee, Learned Counsel appearing for the petitioner. Also heard Mr. 7. Heard Mr. K. Bhattachar Jee, Learned Counsel appearing for the petitioner. Also heard Mr. B. Kalita, learned Senior counsel assisted by Ms. P. Bora, Advocate, appearing for the opposite party No. 1. 8. Criticizing the order so passed by the learned trial Court, Mr. Bhattachar Jee, Learned Counsel appearing for the petitioner would contend that after enforcement of the Civil Procedure Code (Amendment) Act, 1976 all questions relating to right, title and interest on the property arising between the parties to the proceeding on an application under Order 21, Rules 97, 98 and 100 has to be determined by the Court dealing with such application whereas the learned trial Court vide order dated 08.012010 directed to maintain status quo and by another order dated 25.02.2010 the learned trial Court has passed an order to the effect that necessary order shall be passed on appearance of all the opposite parties fixing 03.04.2010, whereas, without deciding he case under Order 21 Rule 100, 97, 98 and 100 of the Code, the case was disposed of thereby committed an illegality not vested in it by law which require interference under revisional jurisdiction. 9. Mr. Bhattachar Jee, Learned Counsel has further submitted that a conjoint reading of Rules 97, 98, 99, 100 and 101 of Order 21 of the Code, it is clear that the entire set of rules provide a procedure for the benefit of such person against whom, no decree is passed, yet he is being subjected to the execution of a decree where in obtaining possession, the holder of a decree dispossess any person other than the judgment debtor, such person may apply to the Court for an investigation under the Rules, whereas the learned trial Court without determining the question of right, title and interest of the parties though raised under the aforesaid Rules, had disposed of the case holding that the decree has been executed to the satisfaction of decree holder which tantamounts to exercise a jurisdiction not vested in it by law and hence required adjudication by this Court under revisional jurisdiction. 10. In reply to the question raised, Mr. 10. In reply to the question raised, Mr. Kalita, learned Senior counsel appearing for the opposite party No. 1 would contend that the record would reveal that he has purchased a plot of land measuring 18 lechas for valuable consideration on execution of a deed of sale executed by the defendant but subsequently he was dispossessed illegally where for a suit was filed and decree has been obtained and in execution of decree he has been put in possession and as such there is no illegality committed by the learned trial Court. Therefore, no interference is called for under - revisional jurisdiction. 11. Heard the Learned Counsel for the contesting parties. Perused the averments along with annexures appended with the revision petition including the records of the case. The record of the case would reveal the following admitted facts :-- (i) The petitioner was in possession of land measuring 2 kathas 5 lechas covered by dag Nos. 435 and 546 which is bounded as follows:-- North: Land under the occupation of Ranjan Medhi. South: Land under the occupation of Khanka Baruah. East: National Highway No. 37. West: Land under the occupation of Shri Hari Das and Debar Ali. (ii) The opposite party No. 1 Md. Mamtaj Ali purchased a plot of land measuring 18 (eighteen) lechas covered by Dag No. 546, K.P. patta No. 486 out of land measuring 1 bigha 1 katha 13 lechas from the opposite party No. 2 on 09.05.2008 by registered sale deed No. 6964 of 2008 and possession was delivered. But he was illegally dispossessed on 06.05.2009. The schedule of land wherefrom he was dispossessed is bounded by:- North: Land of Dr. Kumudeswar Baruah South: Land of Shri Bishwajyoti Pathak East: H.N. No. 37 West: Land of Md. Debar Ali. (iii) The opposite party No. 1 on being illegally dispossessed filed a case being Title Suit No. 187 of 2009 against the opposite party No. 2 under Section 6 of the Specific Relief Act without arraying the petitioner as party defendant in the suit. (iv) The suit was decreed ex parte on 24.09.2009 and put to execution being Title Execution Case No. 12 of 2009 and on 05.12.2009 the revision petitioner was dispossessed from the land under his occupation. (v) The petitioner filed an application under Sections 47, 144 and 151 of the Code being Misc. (iv) The suit was decreed ex parte on 24.09.2009 and put to execution being Title Execution Case No. 12 of 2009 and on 05.12.2009 the revision petitioner was dispossessed from the land under his occupation. (v) The petitioner filed an application under Sections 47, 144 and 151 of the Code being Misc. (J) Case No. 263 of 2009 and subsequently applied for conversion of the case under Order 21, Rules 97, 98 and 100 of the Code and consequently thereupon the learned Court entertained the application directing to maintain status quo in respect of the land vide order dated 08.01.2010 fixing 25.01.2010. (vi) Subsequently on 25.01.2010 the petitioner has filed an application under Order 39, Rules 1 and 2 read with Section 151 of the Code which was registered as Misc. (J) Case No. 12 of 2010 and an ex parte order of injunction was passed on 25.01.2010. But the same was dismissed on 25.02.2010 due to noncompliance of the provision of Order 39, Rule 3 of the Code. (vii) The petitioner has filed an application under Order 26, Rule 9 of the Code wherein the learned trial Court on 25.02.2010 passed an order that necessary order shall be passed in the case on completion of notices upon the opposite party Nos. 2, 3 and 4 fixing 03.04.2010. (viii) The learned Court on 25.02.2010 disposed of the Execution Case holding that the decree has been executed as it, appears from the repot of the Civil Nazir without adjudicating the Misc. (J) Case No. 263 of 2009 filed under Order 21 Rule 100, order 21 rule 97, 98 and 100 of the Code. 12. In the light of the above factual background the Court is asked no answer as to whether the dispossession of the petitioner from the land under his occupation is permissible under the law. It is a settled position of Law that a person in possession of the property cannot be dispossessed without due process of law. The petitioner was in possession of a plot of land measuring 2 kathas 5 lechas belonging to Government as admitted by himself and continued in possession and enjoyment of the land and the said fact is known to the opposite parties. Suit for specific performance under Section 6 of the Specific Relief Act seeking a decree for khas possession and decree obtained become final. Suit for specific performance under Section 6 of the Specific Relief Act seeking a decree for khas possession and decree obtained become final. But the opposite party No. 1 has not impleaded the petitioner as party defendant to the suit for specific relief nor a decree personally against him obtained in any other independent proceedings. Therefore, when the petitioner was dispossessed in execution proceeding and he filed in petition under Order 21 Rule 97, 98 and 100 of the Code blaming adjudication of his right to remain in possession, it is the duty of the learned trial Court to adjudicate the matter but since the learned trial Court to adjudicate the matter, his dispossession from the land, in question, without any decree or order of eviction held to be unlawful being without any due process of law and as such the order dated 25.02.2010 impugned in the revision petition is required to be interfered with, which the Court hereby do. 13. Considering the matter in its entirety, the Court is inclined to set aside the order dated 25.02.2010 passed by the learned trial Court in Title Execution No. 12 of 2009 thereby remanding the case to the learned trial Court for adjudicating the case as required under the law considering the provisions of Order 21 Rule 97, 98 and 100 of the Code in Misc. (J) Case No. 263 of 2009 afresh. The learned trial Court is at liberty to decide as to whether the petitioner should be allowed to remain in possession till Misc. (J) Case No. 263 of 2009 is disposed of and/or the learned trial Court may put the petitioner in possession as required under Order 21 of the Code. 14. In the result, the revision petition is accepted setting aside the order dated 25.02.2010 passed in Title Execution No. 12 of 2009 remanding the case to the learned trial Court to adjudicate the application filed under Order 21 Rule 97, 98 and 100 of the Code as indicated above. The parties are left to bear their own costs. Send down the lower Court record immediately. As the Learned Counsel appearing for the parties are present in the Court, parties are directed to appear before the learned Court below on or before 29th February, 2012 for receiving necessary order from the Court. Petition allowed