Jaspal Singh s/o Phuman Singh v. Punjab Wakf Board, Ambala Cantt. through its Estate Office, Phagwara
2012-07-10
K.KANNAN
body2012
DigiLaw.ai
JUDGMENT Mr. K. Kannan, J.: (Oral) - The revision is filed against an order that was passed on an objection raised by the petitioner to an execution of a decree that was obtained by the respondent on 15.3.1999 against one Raghuvir Singh. The objection was given by the petitioner contending that he was in possession of the property in his own right and he was not claiming the property under the judgment debtor. His further contention was that there was a confusion with reference to Khasra number in the Village as found in the decree and judgment and the decree holder is now trying to execute the decree which was different from the property which has been in the possession of the petitioner. The contention raised by the third party-objector was contested by the decree holder that there was no confusion with reference to the identity of the property since the property had been properly described within the four boundaries with reference to a building consisting of two rooms deori and courtyard. The property was described as follows:- East: Property of Plaintiff in illegal possession of Daulat Ram. West: Property of Plaintiff in illegal possession of Husan Lal North: Property of Plaintiff in illegal possession of Jagiri Ram South Road which is part of Khewat No.336, Khatuni No.405 to 418 Kh.No.65/1 Min.” 2. While Khasra number was given as 65/1 Min in the village Nangal, in para 5 of the judgment which was rendered by the Court ex-parte it had referred to the disputed of property as khasra No.92/1 in Village Jhoki Nangal. The decree holder sought to contend that the property in possession of the petitioner-objector has been admitted to be the property within the very same boundary. On his east was a property in the hands of Daulat Ram, on the west is the property held by Husan Lal, on the North is the property in possession of Jagiri Ram and on the South there was a road which form part of Khasra No.65/1. On the basis of the statement given by the petitioner-objector the Court found that a discrepancy with reference to Khasra number was irrelevant and the identity of the property had been clearly established. It is a well established principal of law that in case of discrepancy between khasra number and boundaries, the latter shall prevail.
On the basis of the statement given by the petitioner-objector the Court found that a discrepancy with reference to Khasra number was irrelevant and the identity of the property had been clearly established. It is a well established principal of law that in case of discrepancy between khasra number and boundaries, the latter shall prevail. After rendering such a finding the execution Court proceeded to examine as to how the objector was making his claim but found that he had no contention to give except an assertion that he and his father had been in possession of the property for more than three decades. Finding that there was no basis for such an assertion the Execution Court proceeded to reject the objection raised by the petitioner and passed the impugned order. In appeal the first order was confirmed and hence, the present revision petition. 3. Even before this Court learned counsel would only reiterate the discrepancy with regard to Khasra number and would not make any argument on how he has got title to the property. Learned counsel wants to contend that the suit had been decreed only against Raghuvir Singh and there was no attempt of the decree holder to show that the present objection caused by the petitioner was under the judgment debtor himself. Learned counsel will rely on the fact of that he is in possession of property and is not in a position to set trace his title through any document of title or any other legal title as inhering in him. The contention of the petitioner is liable for rejection for more than one reason. If the petitioner were to be claiming under Raghuvir Singh, there is hardly any scope for even undertaking an adjudication in the manner done by the executing Court. In such an event, the executing Court would be justified to even cause the arrest of such a person claiming under the judgment debtor under Order 21 Rule 98(2) and enforce the decree. In Biswanath Poddar Vs. Archana Poddar and another AIR 2001 SC 2849 , the Supreme Court held if objection is raised by a sub tenant claiming under Judgment debtor (tenant) no fresh adjudication is necessary. An adjudication itself becomes relevant only in situations where an objector makes a claim not under the judgment debtor but independently.
In Biswanath Poddar Vs. Archana Poddar and another AIR 2001 SC 2849 , the Supreme Court held if objection is raised by a sub tenant claiming under Judgment debtor (tenant) no fresh adjudication is necessary. An adjudication itself becomes relevant only in situations where an objector makes a claim not under the judgment debtor but independently. The procedure for such a third party objection is described under Order 21 Rule 101 and the order that is passed is under Order 21 Rule 97, Rule 99 shall be treated as if it were a decree under O 21 Rule 103 . The question that is determined under Rule 101 is all questions relating to right, title or interest in the property. If an objection is filed under Order 21 Rule 97 CPC then the Court determines the question on a full fledged enquiry. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another AIR 1998 SC 1754 (1) the Supreme Court held that resistance or obstructions made even by a third party to the execution of decree can be gone into under O.21, Rule 97. Rules 97 to 106 in Order 21 are subsumed under the caption “resistance to delivery of possession to decreeholder or purchaser.”. Those rules are intended to deal with every sort of resistance or obstructions offered by any person. R.97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by “any person” in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the procedure laid down. It will be useful to reproduce Rule 101 on the nature of adjudication that is undertaken by the executing Court.
Sub-rule (2) makes it incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the procedure laid down. It will be useful to reproduce Rule 101 on the nature of adjudication that is undertaken by the executing Court. “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 question.” Once an adjudication is made the order that is passed is in the nature of a decree as set out under Rule 103. Rule 103 CPC is also reproduced hereunder:- “Rule 103: Orders to be treated as decrees: Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.” 4. Consequently the order that was passed by the Court rejecting the petitioner’s objection on 1.11.2010 is really in the nature of a decree and when an appeal is filed as Ciivil Misc.Appeal before the Additional District Judge the disposal of the said case would again be taken as a decree and such an order is appealable as a Civil Misc. Second Appeal or Execution Second Appeal, under the provisions of Section 100 CPC. A revision itself is not competent. For any reason, if this revision must be taken as competent on the basis that the order passed by the Additional District Judge was itself final and that Section 115 CPC or Article 227 could be invoked, it has to be still shown that the order was incompetent and without jurisdiction. I cannot find any incompetency about the order passed by the Additional District Judge in the Appellate jurisdiction. 5.
I cannot find any incompetency about the order passed by the Additional District Judge in the Appellate jurisdiction. 5. Even as regards the manner of disposal , once a question of title is raised at the instance of the objector, law behoves of such an objector the duty to establish the basis of his claim. In Tanzeem-e-Sufia Vs. Bibi Haliman and others AIR 2002 SC 3083 the Supreme Court held that when resistance to delivery of possession is taken by a third party the Court shall determine the ground for objections on a full fledged enquiry and a refusal to hear the objection on the ground that the objector has to file a civil suit was erroneous. This makes it clear that an adjudication making title will be undertaken at that stage when objection is given and it is sought to be removed by the decree holder and all the trappings on a trial shall in a civil suit be attracted in such an adjudication. A mere assertion of his possession is justification to resist removal of obstruction is begging the question which is required to be answered. A petition for removal of objection is caused only on the basis that a third party is in possession of the property. If the possession is an admitted fact and a person that causes obstruction wants an adjudication that his possession shall not be disturbed, he is bound to establish his title. The very grant of decree in favour of the plaintiff granting him a decree on proof of title makes possible for decree holder to rest no more than on the decree that he has obtained. It is not required of him to establish his title any further again. If the title of the objector fails then the further process in execution must proceed to its logical end of securing to the decree holder possession from the objector. The order passed by the Courts below are perfect and would not require any interference. 6. The revision petition is liable to be dismissed even it were to be considered as a Civil Misc. Second Appeal or vice versa. ---------0.B.S.0------------