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2014 DIGILAW 135 (UTT)

Dayanand Shiksha Sansthan v. State of Uttarakhand

2014-03-27

B.S.VERMA

body2014
Judgment B.S. Verma, J. This first appeal is directed against the judgment and decree dated 15.7.2010 passed by the District Judge, Dehradun in S.C.C. Misc. Case No.14 of 2010, whereby the said court has dismissed the application moved by the appellant under Order 21 Rule 97 of C.P.C. read with Section 47 and 151 of C.P.C. 2. Briefly stated, the facts of the case, giving rise to this appeal, are that appellant Dayanand Shiksha Sansthan filed objections under Order 21 Rule 97 read with Section 47 and 151 of C.P.C against the execution of decree passed in S.C.C. Suit No.24 of 2001 Smt. Shanti Devi and ors. v. State of Uttarakhand and others, passed on 24.8.2002. The appellant/applicant claimed himself to be the owner of the land which is being occupied by the S.S.P. Dehradun. It was alleged by the appellant that the decree was obtained by fraud; the appellant/applicant was not arrayed as a party to the suit; the property is in ownership of the applicant. Therefore, the possession cannot be handed over to respondent nos.5 and 6. In the application, prayer was made for declaring that the judgment and decree passed on 24.8.2002/29.8.2002 in SCC Suit No.2 of 2001 is null and void and is not binding upon the applicant; that respondent nos.5 and 6 are not entitled to claim the possession and other mesne profit; and that the execution case no.1 of 2010 be dismissed. 3. Before the learned District Judge, preliminary objection was raised on behalf of respondent nos.5 and 6 stating that the provisions of Order 21 Rule 97 of C.P.C. are not applicable and the same cannot be invoked by a third party and therefore the application is not maintainable. Apart from this, a suit for declaration is also pending before the court of Civil Judge (S.D.) Dehradun. It was also stated that the appellant/applicant has also moved an application under Section 41 of the Land Revenue Act before the revenue authorities. A joint committee of revenue authorities was constituted and according to the report of the committee, respondent nos.5 and 6 are the owners of the land comprised in Khevat No.1 bearing Khasra no.11, khasra no.16Ta and 16Tha. Occupation of S.S.P. Dehradun has also been reported over the aforesaid land. The land claimed by the appellant/applicant is not in his possession. A joint committee of revenue authorities was constituted and according to the report of the committee, respondent nos.5 and 6 are the owners of the land comprised in Khevat No.1 bearing Khasra no.11, khasra no.16Ta and 16Tha. Occupation of S.S.P. Dehradun has also been reported over the aforesaid land. The land claimed by the appellant/applicant is not in his possession. The applicant has no right, title or interest in the property which is subject matter of decree in question. 4. After hearing the parties, learned District Judge, vide impugned order dated 15.7.2010, rejected the application, holding that the same is not maintainable by a third party since he is not in possession. 5. Feeling aggrieved by the order of learned District Judge dated 15.7.2010, the appellant has come up before this Court. 6. In support of his case, learned senior counsel appearing for the appellant has placed reliance upon the following judgments:- i) Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, 1997 AIR SCW 685 ii) Babulal v. Raj Kumar and others, AIR 1996 Supreme Court 2050 iii) Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, AIR 1998 Supreme Court 1754 iv) Ram Pyare and others v. Special Judge, Basti and others, AIR 1999 Allahabad 251 7. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, it has been observed that the application is also maintainable by third party. 8. In Babulal v. Raj Kumar and others, it has been held as under:- “7. It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.” 9. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, it has been observed as under: “9. At the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21, Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption “Resistance to delivery of possession to decree-holder or purchaser”. Those rules are intended to deal with every sort of resistance or obstructions offered by an person, Rule 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.” 10. In Ram Pyare and others v. Special Judge, it has been held:- “7. In the instant case also an application under Order 21, Rule 35(3), C.P.C. for police aid was moved by the decree holder on ground that the third party was in possession and was resisting the execution of the decree. In Ram Pyare and others v. Special Judge, it has been held:- “7. In the instant case also an application under Order 21, Rule 35(3), C.P.C. for police aid was moved by the decree holder on ground that the third party was in possession and was resisting the execution of the decree. In view of the decision of the Hon’ble Supreme Court in Bhanwar Lal’s case ( AIR 1995 Sc 358 ) (supra) such an application was, in fact, an application under Order 21, Rule 97 (1), CP.C. Therefore, the petitioners were entitled to file objection. The same could not have been rejected on ground of maintainability…..” 11. In reply to the contention of learned senior counsel, learned counsel appearing for the respondent nos.5 and 6 has contended that so far as the ratio of the judgment of Brahmdeo’s case is concerned, it is not disputed. The application can be maintained on behest of third party also but that cannot be maintained if the third party is not in possession. Therefore, the case of Brahmdeo (supra) relied upon the appellant is of no help to the appellant since admittedly the appellant is out of possession. 12. Learned counsel for respondent nos.5 and 6 has placed reliance upon AIR 1978 Goa, Daman & Diu 48 Dr. Emerciano Leonardo Dias, Physician, Margao v. Ganexama B. Naique Vainganear and others, wherein it has been held that the “possession” spoken of under these Rules is “actual possession” and not constructive one. 13. Learned counsel has further placed reliance upon a judgment of this High Court passed in the case of Sakila v. Banarasi Das reported in AIR (Uchal) (2006) 29, wherein it has been held that it is only the person in actual physical possession with independent right over the property who has a right to record the resistance under Rule 97 of Order XXI of the Code, and only his rights are required to be determined under said Rule read with Rule 101 of Order XXI of the Code of Civil Procedure, 1908. 14. I have heard learned counsel for the parties, perused the judgment and order impugned as well as the case-law cited by the learned counsel for the parties. 15. So far as this fact is concerned, undisputedly the appellant is not in possession over the disputed property. He is claiming jural possession on the basis of title. 14. I have heard learned counsel for the parties, perused the judgment and order impugned as well as the case-law cited by the learned counsel for the parties. 15. So far as this fact is concerned, undisputedly the appellant is not in possession over the disputed property. He is claiming jural possession on the basis of title. The condition precedent under Order 21 Rule 97 of C.P.C. is that the third party must be in physical possession. Thus, the application moved by the appellant under Order 21 Rule 97 of C.P.C. has rightly been rejected by the learned District Judge. 16. In the light of aforesaid, there appears no infirmity or illegality in the order passed by court below. The appeal lacks merit and is hereby dismissed. Interim order dated 11.10.2011 stands vacated.