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2013 DIGILAW 665 (KAR)

SHABANA KHANUM v. SYED NAZIR SAB (DEAD)

2013-06-11

K.N.KESHAVANARAYANA

body2013
JUDGMENT K.N. KESHAVANARAYANA, J.-This appeal by the objectors in Execution Case No. 955/ 1999 on the file of the XIX Additional City Civil Judge, Bangalore, is directed against the order dated 22.01.2010 passed therein dismissing the application filed by the appellants-objectors under Order 21, Rule 97 of CPC. 2. Certain background facts leading to presentation of the execution case and this appeal are as under:- One Syed Ahmed Sab purchased certain properties bearing No. 12 later numbed as 26, Pension Mohalla, Mysore Road, Bangalore. He mortgaged the said property in favour of one Sheik Hyder @ Ameer Sab, who later filed suit in O.S. 899/1954 for recovery of money. The said suit came to be decreed and in execution of the said decree, property bearing No. 26 was sold in public auction. Mir Fateulla (original 6th respondent) purchased the said property in Court auction. The judgment debtor sought setting-aside the sale on various grounds. However, the objections of judgment debtor came to be dismissed and the sale was confirmed on 18.06.1957. Against the said order, the judgment debtors filed Misc Appeal No. 51/1957 before the Principal Civil Judge, Bangalore and the said appeal was allowed, the matter was remanded to the Executing Court. However, the Executing Court again by order dated 29.07.1958 confirmed the sale. The said order was challenged by the judgment debtor in R.A. No. 285/1958 before the Principal Civil Judge, Bangalore, who dismissed the said appeal on 09.02.1959. Against the said order, the judgment debtor preferred revision petition before this Court in C.R.P No. 269/1959, which came to be allowed on 18.01.1961 setting aside the confirmation of sale and the matter was remanded to the Executing Court with a direction to hear the application for setting aside the sale afresh. After remand, the Executing Court by order dated 04.06.1963, set aside the sale and directed the judgment debtor to deposit the amount due to the decree holders. Accordingly, the judgment debtor deposited the decretal amount. It appears when the matter was pending before this Court in CRP No. 269/1959, the auction purchaser namely Mir Fateulla had taken delivery of the possession of the property sold, on 12.03.1959. The auction purchaser assailed the order passed by the Executing Court setting aside the sale by filing appeal in M.A. No. 42/ 1964 which came to be dismissed by order dated 16.09.1968. The auction purchaser assailed the order passed by the Executing Court setting aside the sale by filing appeal in M.A. No. 42/ 1964 which came to be dismissed by order dated 16.09.1968. While dismissing the appeal, the Appellate Court directed restoration of possession of the property to the judgment debtor. Against the said order, auction purchaser filed Revision Petition before this Court in CRP No. 1587/1968 and obtained an order of stay on account of which the judgment debtor could not seek re-delivery of the property. However, by order dated 15.12.1970, the Revision Petition came to be dismissed and order of the Executing Court setting aside the sale was affirmed. Thereafter, the judgment debtor filed application under Section 144 of CPC in Misc. 270/1971 seeking restitution of the property from the auction purchaser, which came to be dismissed for default on 05.01.1973. However though the judgment debtors made an attempt to get the said petition restored, they were not successful. Therefore, they filed a fresh petition under Section 144 of CPC in Misc. No. 435/1975 against Mir Fateulla @ Babajan, the auction purchaser. It appears during the pendency of the said petition, Mir Fateulla died and his LRs were brought on record. Subsequently, Misc. 435/ 1975 on the file of the 1st Munsiff, Bangalore, was re-numbered as Misc. No. 589/1987 on the file of the IX Additional City Civil Judge, Bangalore. The said Misc. No. 589/1987 was disposed of by order dated 30.03.1992, by which the Court allowed the said petition and held that the petitioners therein namely judgment debtors do recover possession of the above schedule premises from the LRs of the 1st Respondent namely, Mir Fateulla @ Babajan and also Respondent Nos. 2, 3, 4 & 7. In the said order, it was further directed that the petitioners therein would not be entitled to dis-possess Respondent Nos. 5 & 6 namely, Maqbool Jan and Quarishi Basha from any portion of the plaint schedule premises in case they are found in possession, on the strength of the said order, since the contentions and objections of those Respondent Nos. 5 & 6 had been kept open to be enquired into separately. Pursuant to the said order, possession of the property measuring 26 x37 ft. was taken by heirs of Syed Nazeer Sab, s/o Syed Ahmed. With regard to the objections raised by Respondent Nos. 5 & 6 had been kept open to be enquired into separately. Pursuant to the said order, possession of the property measuring 26 x37 ft. was taken by heirs of Syed Nazeer Sab, s/o Syed Ahmed. With regard to the objections raised by Respondent Nos. 5 & 6, namely Maqboo Jan and Quarishi Bhasha in Misc. No. 589/1997 and as directed in the order dated 30.3.1992, further enquiry was held and by order dated 29.06.1998, the Court held that the area measuring 14ft.x26ft. has not been delivered to the petitioners therein namely, Syed Nazeer Sab and others and therefore they are entitled to get the possession of the said area. To execute that order dated 29.06.1998, the heirs of Syed Nazeer Sab filed Execution case No. 955/1999 and sought delivery warrant. In the Execution Petition, the property sought to be delivered was described as Door No. 26, situated in old Pension Mohalla, Mysore Road, Bangalore. In the said Execution Petition, delivery warrant was issued and when the said delivery warrant was sought to be executed, the present appellants obstructed for the execution and filed application under Order 21, Rule 97 of CPC contending that they are in possession of the property in their own right and they are not bound by the order under execution. They sought for adjudication of their right, title and interest over the property sought to be executed by setting forth their title. According to the objectors, Syed Ahmed Sab, who had purchased the property then bearing No. 12, Pension Mohalla, Mysore Road, Bangalore, measuring 26x51 ft. under the registered sale deed dated 05.06.1907, subsequently under sale deed dated 30.05.1938, sold a portion of the same measuring East-West:12 ft. and North-South: 26 ft. in favour of Mir Fateulla and subsequently, since Mir Fateulla acquired right in respect of an area measuring 29ft.xl3y2 ft. adjacent to the property so purchased by him on his western side from Bangalore City Municipality, Mir Fateulla became owner of the property measuring 30x30ft. and thereafter, he built a building thereon comprised of two floors. They further contended that, the said Mir Fateulla by a registered Meharnama dated 23.02.1946 gave the said property measuring 30x30 ft. in favour of his wife Smt. Hasmathunnisa, who later sold the said property in favour of Mir Khaleelulla under the registered sale deed dated 16.11.1974. and thereafter, he built a building thereon comprised of two floors. They further contended that, the said Mir Fateulla by a registered Meharnama dated 23.02.1946 gave the said property measuring 30x30 ft. in favour of his wife Smt. Hasmathunnisa, who later sold the said property in favour of Mir Khaleelulla under the registered sale deed dated 16.11.1974. It was further contended that as there was some error in the sale deed dated 16.11.1974 while mentioning the property numbers, the same was rectified by means of Rectification Deed dated 29.03.1975 and by that date, the property had been assigned No. 39. Subsequently, the said Mir Khallelulla sold the said property in favour of Smt. Maqbool Jan under the registered sale deed dated 21.11.1995, who in turn sold in favour of the objectors under the registered sale deed dated 18.09.2001. Thus, according to the objectors, they are rightful owners of property bearing No. 39 and that the order under execution is not with reference to property No. 39, as such, the said order cannot be executed against the property bearing No. 39 in possession of the objectors. The said application was opposed by the decree holders by filing detailed objections. As required by law, the Executing Court held an enquiry and during enquiry, the 1st objector Smt. Shabana Khanam, who is the mother and guardian of objectors-2 &3, was examined as PW.1 and documentary evidence marked as Exs.P1 to 34 were produced. On behalf of the decree holders, Syeed Gaffar was examined as DW. 1 and reliance were placed on Exs. D1 to D10. 3. After hearing the learned counsel appearing on both sides and on appreciation of oral as well as documentary evidence available on record, the Executing Court by the order under appeal held that the objectors have not proved their title to the property bearing No. 39 and that they have not established that property bearing Nos. 39 and 26 are different and in that view of the matter dismissed the application. However, the Executing Court observed that the decree holder has to establish as to which is the property he has to recover under the decree to be executed by placing clear, cogent and convincing evidence. Aggrieved by the rejection of their application filed under Order 21, Rule 97 of CPC, the objectors have presented this appeal. 4. I have heard Sri. Aggrieved by the rejection of their application filed under Order 21, Rule 97 of CPC, the objectors have presented this appeal. 4. I have heard Sri. D.L.N. Rao, learned Senior Counsel appearing for the counsel on behalf of the appellants and Sri. Sheshachala, learned counsel appearing for the respondent-decree holders. Perused the voluminous records secured from the Executing Court. The point that arises for consideration in this appeal is,- "Whether the Executing Court is justified in dismissing the application filed by the objectors under Order 21, Rule 97 of CPC." 5. Having heard the learned counsels appearing on both sides and on perusal of the records secured from the Executing Court, certain undisputed facts noticed are as under:- Syed Ahmed, father of Syed Nazeer Sab and grandfather of the present decree holders purchased the property then bearing No. 12, Pension Mohalla, Mysore Road, Bangalore, under the registered sale deed dated 05.06.1907, a copy of which is marked as Ex.D1 during the enquiry. As per the contents of Ex.D1, the measurement of the property purchased by Syed Ahmed was East-West: 51 ft. and North-South: 26 ft. The boundaries mentioned to the property purchased under Ex.D1 are,-East : Government Road, West : Vacant land of the Government North : House of the Syed Hussain South : House of Hawaldar Mahaydallisa Subsequently, the said Syed Ahmed sold a portion of the said property purchased by him under Ex.D1 to Fateulla under the registered sale deed dated 29.05.1938, a certified copy of which was marked as Ex.P16. The measurement of the property so sold under Ex.P16 was 12 ft.: East-West and 26 ft.: North-South. The boundaries mentioned in the said sale deed to the portion sold were,- East : Remaining portion of the said property West : Karab land of the Government North : House of Dobi Chandrabhan South : House of Syed Hussain Sab. 6. In Ex.P. 16, the source of title of the vendor Syed Ahmed is referred to as the one purchased under sale deeddated 05.06.1907 (Ex.D1). Thus, after executing the sale deed-Ex. P16, Syed Ahmed had retained the property measuring 39 ft.: East-West and 26 ft. : North-South. 7. Exs. 19 to 22 are the correspondence originating from Bangalore City Municipality with regard to sale of land measuring 13V£x29 ft. Thus, after executing the sale deed-Ex. P16, Syed Ahmed had retained the property measuring 39 ft.: East-West and 26 ft. : North-South. 7. Exs. 19 to 22 are the correspondence originating from Bangalore City Municipality with regard to sale of land measuring 13V£x29 ft. lying adjacent to the house of Mir Fateulla @ Babajan and the said marginal land was lying to the west of his house bearing No. 12, Ittige Anjanappa Lane, Old Pnesion Mohalla, Mysore Road, Bangalore, From this it is clear that Mir Fateulla became owner of the property totally measuring 25% ft.: East-West and 26/29 ft. : North-South. Under registered Maharnama dated 23.02.1946, a copy of which is marked as Ex.P17, Fateulla gave property measuring 30x30 ft. in favour of his wife, who in turn shown to have sold the said property, which ultimately purchased by the objectors. Having regard to the measurement of property purchased under Ex.D1 and subsequent sale of a portion in favour of Mir Fateulla in the year1938, what remains under the ownership of Syed Ahmed was only 39ft.: East-West and 26ft. : North-South. That was the only property which Syed Ahmed could have mortgaged to Sheik Hyder @ Ameer Sab and that could be only property which could be sold in Court's auction in execution of the decree obtained by Mortgagee. 8. It is an admitted fact that the decree holders have already been put in possession of the property measuring 37ft : East-West and 26 ft. : North-South. The grievance of the decree holders is that they have not been put-in possession of the remaining area measuring 14ft. : East-West and 26 ft. : North-South. The Executing Court has held that the objectors have not proved their title to property bearing No. 39 and that they have not satisfactorily established that the property bearing Nos. 26 and 39 are different and distinct. The reliance was also placed on the order dated 29.06.1998, which is sought to the executed passed in Misc. No. 589/1987. Of course, in the said order, the Court after referring to measurement mentioned in the sale deed dated 05.06.1907 as 51 × 26 ft. has observed that no portion of the said property has been sold to anybody. It is on that basis, the Court came to the conclusion that the petitioners therein are entitled for delivery of the remaining portion measuring 14 × 26 ft. has observed that no portion of the said property has been sold to anybody. It is on that basis, the Court came to the conclusion that the petitioners therein are entitled for delivery of the remaining portion measuring 14 × 26 ft. To the said enquiry, the present objectors were not parties. Of course, their predecessors in title were parties to the said enquiry. However, it appears, the fact of Syed Ahmed having executed the sale deed in the year 1938 in respect of a portion of the property measuring 12 × 26ft. has not been brought to the notice of that Court. If the execution of the sale deed in the year 1938 in respect of a portion of the property had been brought to the notice of that Court, certainly the Court could not have made such an observation. Thus, the said observation is made without reference to the sale deed of the year 1938. The documentary evidence produced by the objectors, as noticed supra, would also establish that an area measuring 131/2 ft. : East-West and 29 ft. : North-South had been acquired by Mir Fateulla from the Bangalore City Municipality way back in the year 1939-40. The property in possession of Mir Fateulla as a consequence of sale deed of the year 1938 and sale from the Bangalore City Municipality was different from the property retained by Syed Ahmed, the grand-father of the present decree holders. It is in the evidence on record that the property in possession of the objector was assigned New No. 39 and the property retained by the Syed Ahmed continued as No. 26. Therefore, the property in possession of the objector is entirely different from the property owned by the predecessors in title of the decree holders. In view of the fact that the sale deed executed by Syed Ahmed in favour of Mir Fateulla in the year 1938 and in view of the fact that the decree holders have been admittedly put-in possession of an area measuring 37ft. : East-West and 26 ft : North-South, they cannot be allowed to complain that they have not been put-in possession of the remaining area. No area was remaining for being re-delivered to the decree holders in execution. : East-West and 26 ft : North-South, they cannot be allowed to complain that they have not been put-in possession of the remaining area. No area was remaining for being re-delivered to the decree holders in execution. The oral and documentary evidence produced by the objectors, as discussed above, clearly establish that they are the owners of the property in their possession and they have not claimed any title under the judgment debtor and their title is independent, therefore, order under execution was not binding on them. The decree holders had no right to dispossess the appellants from the property in their possession. The decree sought to be executed cannot be executed against these objectors in respect of the property in their possession. In this view of the matter, the Executing Court is not justified in dismissing the application filed by the objectors. Hence, the application filed by them deserves to be allowed. In view of the above discussion, no further enquiry is required to be held in respect of the property to be executed. 9. In the result, the appeal is allowed. The order dated 22.01.2010 passed in Execution Case No. 955/1999 by the XIX Additional City Civil and Sessions Judge, Bangalore City, dismissing the application filed by the appellant under Order 21, Rule 97 of CPC is hereby set aside. The said application is allowed and it is held that the appellants are the owners in possession of the property presently bearing No. 39 and the order under execution is not binding on them. It is further declared that the decree holders have no right to dispossess the objectors from the property in their possession pursuant to the decree under execution. The Executing Court is directed to close the execution petition without any further enquiry.