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2015 DIGILAW 599 (JHR)

Hazara Khatoon v. Md. Kalim

2015-05-07

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 12.07.2011 in Misc. Case No. 2 of 2011 filed under Order XXI Rule 97, 98 and 101 r/w Section 151 CPC and the appellate order dated 07.02.2015 in Misc. Appeal No. 119 of 2011 whereby, order dated 12.07.2011 has been confirmed, the present writ petition has been filed. 2. This case has a chequered history. The parties have been litigating for about 15 years. In the meantime, a preliminary decree in Title (Partition) Suit No. 80 of 2001 has been passed on 17.09.2012 and the Title (Eviction) Suit No. 70 of 2001 has also been decreed. The petitioners filed as many as three applications under Order XXI Rule 97, 98 and 101 CPC which have been dismissed by the trial court. The order passed in one of the applications preferred by the petitioners being Misc. Case No. 3 of 2010 has been confirmed by this Court in Civil Revision No. 19 of 2010 vide, order dated 17.05.2010. 3. Before adverting to the rival contentions raised on behalf of the parties, the brief facts of the case may usefully be noticed. One Marium Bibi died on 11.02.1979 leaving behind two sons namely, Md. Anwar and Md. Qurban. It is stated that a deed of Family Settlement was executed on 27.04.1997 between one Md. Anwar and sons of late Md. Qurban under which the suit property in the eviction suit came in the share of the petitioners. The Title (Partition) Suit No. 80 of 2001 was filed by the petitioners for partition and for a decree of injunction against the defendants who are respondents in the present proceeding. The petitioner no. 1Hazara Khatoon is the second wife of Md. Qurban. She is plaintiff no. 1 in Title (Partition) Suit No. 80 of 2001. The petitioner no. 2 is plaintiff no. 2 in the partition suit and the petitioner no. 3 is the plaintiff no. 3 in the said partition suit. A preliminary decree was prepared on 17.09.2012 in Title (Partition) Suit No. 80 of 2001. The property in question, that is, the suit schedule property in Title (Eviction) Suit No. 70 of 2001 is Schedule “D” property in the Title (Partition) Suit No. 80 of 2001, is not in dispute. It is stated that the petitioner no. 1 got 1/16 share in the Schedule “D” property whereas, plaintiff no. The property in question, that is, the suit schedule property in Title (Eviction) Suit No. 70 of 2001 is Schedule “D” property in the Title (Partition) Suit No. 80 of 2001, is not in dispute. It is stated that the petitioner no. 1 got 1/16 share in the Schedule “D” property whereas, plaintiff no. 2 and 3 have got 7/56 share in the Schedule “D” property. Before that, Title (Eviction) Suit No. 70 of 2001 filed by Rubaida Khatoon and one of her sons was decreed exparte on 18.06.2003. Thereafter, Execution Case No. 07 of 2008 was filed for execution of exparte decree dated 18.06.2003. The petitioners appeared on 31.07.2009 in Execution Case No. 7 of 2008 seeking their impleadment in the execution case however, their application was rejected vide, order dated 20.11.2009. Thereafter, the petitioners filed application under Order XXI Rule 97, 98 and 101 CPC on 11.01.2010 which was registered as Misc. Case No. 3 of 2010. After the decree holders contested the application, the said application was dismissed on 06.03.2010, against which the petitioners came before this Court in Civil Revision No. 19 of 2010. The civil revision preferred by the petitioners was however, dismissed on 17.05.2010. Thereafter, the petitioners filed another application under Order XXI Rule 97, 98 and 101 CPC which was registered as Misc. Case No. 11 of 2010. The said application has been rejected by the executing court vide, order dated 10.08.2010. About six months thereafter, the petitioners again moved an application being Misc. Case No. 2 of 2011 raising objection in the Execution Case No. 07 of 2008. Misc. Case No. 2 of 2011 was dismissed vide, order dated 12.07.2011 with cost of Rs. 10,000/and appeal preferred by the petitioners vide Misc. Appeal No. 119 of 2011 has also been dismissed vide, order dated 07.02.2015. In the above facts, the petitioners have approached this Court by filing the present writ petition. 4. Mr. R.S. Majumdar, the learned Senior counsel for the petitioners submits that in the Family Settlement dated 27.04.1997, a part of the suit property in Title (Eviction) Suit No. 70 of 2001 has been allotted to the petitioners. The said Family Settlement dated 27.04.1997 was filed and marked as Exhibit1 in Title (Partition) Suit No. 80 of 2001. 4. Mr. R.S. Majumdar, the learned Senior counsel for the petitioners submits that in the Family Settlement dated 27.04.1997, a part of the suit property in Title (Eviction) Suit No. 70 of 2001 has been allotted to the petitioners. The said Family Settlement dated 27.04.1997 was filed and marked as Exhibit1 in Title (Partition) Suit No. 80 of 2001. A specific issue with respect to genuineness of the said family settlement was framed by the trial court and the said issue has been answered in favour of the plaintiffs/writ petitioners and the claim raised by the respondents over the said property by virtue of the alleged “HIBA” executed by Md. Qurban has been rejected by the trial court in Title (Partition) Suit No. 80 of 2001. It is further submitted that in Civil Revision No. 19 of 2010, this Court observed that if the petitioners establish their right, title and claim as a cosharer, delivery of possession of the suit scheduled property in Title (Eviction) No. 70 of 2001 can be delivered to them. It is thus submitted that once it has been found that the petitioners are in possession of the suit schedule property in Title (Eviction) Suit No. 70 of 2001, after the preliminary decree dated 17.09.2001 in which the petitioners have been held entitled for their share in the said property, the issue as to the entitlement of the petitioners to remain in possession of the suit property has to be adjudicated. The learned Senior counsel for the petitioners relied on decisions reported in AIR 1996 SC 2050 , (2000) 10 SCC 405 , (2002) 1 SCC 662 , AIR 1997 SC 856 , AIR 1998 SC 1827 , (2006) 4 SCC 412 , 2015 (1) JCR 298 (SC), (2004) 1 SCC 551 and (2004) 12 SCC 770 . 5. As against the above, the learned Senior counsel for the respondents raises a preliminary objection as to maintainability of the appeal preferred against order passed in Misc. Case No. 3 of 2010 and submits that in view of provision under Order XXI Rule 103 CPC, the appeal preferred by the petitioners was not maintainable. In the Title Eviction Suit which was filed on the ground of personal necessity and for default in payment of rent, the alleged right of the petitioners cannot be adjudicated. Case No. 3 of 2010 and submits that in view of provision under Order XXI Rule 103 CPC, the appeal preferred by the petitioners was not maintainable. In the Title Eviction Suit which was filed on the ground of personal necessity and for default in payment of rent, the alleged right of the petitioners cannot be adjudicated. In the garb of objection under Rule XXI Rule 97, 98 and 101 CPC, the petitioners are trying to execute the preliminary decree dated 17.09.2001. Referring to the decision of the Hon'ble Supreme Court in “Sameer Singh and Anr. vs. Abdul Rab and Ors”, reported in 2014 (4) JLJR 521 (SC) and in “Hasham Abbas Sayyad vs. Usman Abbas Sayyad and others”, reported in (2007) 2 SCC 355 , the learned Senior counsel submits that preliminary decree is not executable. The learned Senior counsel for the respondents refers to paragraph (b) of the decree prepared in Title (Partition) Suit No. 80 of 2001 which reads, “for preparation of separate Takhata to effect final Decree and submits that the prayer of the petitioners/plaintiffs is for appointment of a survey knowing Pleader Commissioner for effecting partition” and submits that till the time final decree is prepared, the petitioners cannot claim right over the property involved in Title (Eviction) Suit No. 70 of 2001. It is further submitted that against the preliminary decree the respondents have preferred Title Appeal No. 122 of 2012 which is pending adjudication and therefore, at this stage the objection filed by the petitioners has rightly been rejected by the trial court. It is further submitted that in view of the successive petitions preferred by the petitioners under Order XXI Rule 97, 98 and 101 CPC, it has to be held that the present petition being Misc. Case No. 3 of 2010 was barred by resjudicata and on that ground alone, the present writ petition is liable to be dismissed. The learned Senior counsel refers to decision in Civil Revision No. 19 of 2010 and submits that the real spirit of the order has to be seen. In the said order this Court has rejected the objection of the petitioners and that must be taken as final determination of the right of the petitioners. 6. I have carefully considered the contentions raised on behalf of the parties and perused the documents on record. 7. In the said order this Court has rejected the objection of the petitioners and that must be taken as final determination of the right of the petitioners. 6. I have carefully considered the contentions raised on behalf of the parties and perused the documents on record. 7. The petitioners have claimed Schedule “D” property on the basis of Family Settlement dated 27.04.1997 which is marked as Ext. 1 in the partition suit. Order dated 17.09.2012 in Title (Partition) Suit No. 80 of 2001 discloses that the deed of Family Settlement dated 27.04.1997 was not challenged by the defendants rather, the defendant witnesses have stated that a partition had already taken place and sons of late Md. Qurban and Md. Anwar were residing separately. Answering issue no. V, the trial court has recorded as under; “On the basis of material on record I find that the plaintiffs are entitled to get their share in the property mentioned in scheduled-D of the plaint. The plaintiff no. 1 is entitled to 1/16 share and No. 2 and 3 to get 7/56 share each in scheduled “D” property only.” 8. The defendants have contended that Md. Qurban executed a HIBA in the name of his first wife namely, Rubaida Khatoon (defendant no. 1) in discharge of his dower debt wayback on 13.04.1983. The said HIBA was exhibited as Ext. A. The trial court has recorded a finding that Ext. A which is unregistered deed of transfer does not confer any right, title and interest to the defendant no. 1. Though, the defendants in Title (Partition) Suit No. 80 of 2001 seem to have denied that the petitioners are cosharers, by virtue of order dated 17.09.2012 in Title (Partition) Suit No. 80 of 2001, the petitioners have been held entitled for their share in Schedule “D” property. 9. Title (Eviction) Suit No. 70 of 2001 was filed by Rubaida Khatoon, wife of Late Md. Qurban and Md. Kalim, son of Late Md. Qurban claiming themselves owner of the house described in Schedule “A” of the plaint. The said suit was filed under Section 11 (1)(c)(d) of Bihar Building (Lease, Rent and Eviction) Control Act, 1982. The Schedule “A” property in Title (Eviction) Suit No. 70 of 2001 is the Schedule “D” property in Title (Partition) Suit No. 80 of 2001. Qurban claiming themselves owner of the house described in Schedule “A” of the plaint. The said suit was filed under Section 11 (1)(c)(d) of Bihar Building (Lease, Rent and Eviction) Control Act, 1982. The Schedule “A” property in Title (Eviction) Suit No. 70 of 2001 is the Schedule “D” property in Title (Partition) Suit No. 80 of 2001. Order dated 18.06.2003 whereby, Title (Eviction) Suit No. 70 of 2001 was decreed exparte would disclose that the plaintiffs examined four witnesses and one among them was another son of plaintiff no. 1. The judgment debtor (tenant) died in April, 2008 and one of the judgment debtors namely, Sobrati Khan filed a petition in Execution No. 07 of 2008 on 03.09.2010 stating that they have vacated the tenanted premises and handed over khas possession of the property to Md. Raffique (Petitioner No. 2). Vide order dated 03.09.2010, the said petition was kept on record. The learned Senior counsel for the respondents has submitted that the petitioners are in illegal occupation of the property in question and the trial court in Misc. Case No. 02 of 2011 has rightly observed that how the petitioners came in possession of the Schedule “A” property [in Title (Eviction) Suit No. 70 of 2001] has not been explained by them. The learned Senior counsel for the petitioners relying on aforesaid order dated 03.09.2010 in Execution Case No. 07 of 2008 claims that the petitioners are in lawful possession of the said property. 10. I find that the petitioners are cosharers, is a fact declared by the trial court in Title (Partition) Suit No. 80 of 2001. Now, even if it is assumed that the petitioners came in possession of the said property by illegal means, possession of a cosharer of the joint family property cannot be declared illegal unless, the said property has already been allotted and given to another cosharer. Both the suits were filed in the year, 2001 and Title (Eviction) Suit No. 70 of 2001 was decreed on 24.06.2003 however, the respondents instituted Execution Case in the year, 2008. The petitioners have specifically alleged fraud played by the respondents, in as much as, the Title (Eviction) Suit No. 70 of 2001 was filed without disclosing that Schedule “A” property was a joint family property. I am of the opinion that Eviction Suit filed by respondent nos. The petitioners have specifically alleged fraud played by the respondents, in as much as, the Title (Eviction) Suit No. 70 of 2001 was filed without disclosing that Schedule “A” property was a joint family property. I am of the opinion that Eviction Suit filed by respondent nos. 1 and 2 was though, maintainable and being cosharers they could have claimed themselves owners of the property however, in view of the fact that the petitioners are in possession of the Schedule “A” property, the Executing Court was required to decide the issue, “whether the objectors being the cosharers and owner of 1/16th and 7/56 share in Schedule “D” property of Title (Partition) Suit No. 80 of 2001 are entitled to retain possession of the property in question or not ?” 11. The learned Senior counsel for the respondents has contended that Misc. Case No. 3 of 2011 was barred by resjudicata and Misc. Appeal No. 119 of 2011 was not maintainable. Whether Misc. Appeal No. 119 of 2011 was maintainable or not is a question which was required to be raised before the Appellate Court. On the ground that Misc. Appeal No. 119 of 2011 was not maintainable, it cannot be contended that the present writ petition is also not maintainable. Moreover, order dated 12.07.2011 in Misc. Case No. 2 of 2011 has been challenged by the petitioners and thus, question of maintainability of Misc. Appeal No. 119 of 2011 is irrelevant. In so far as, question of resjudicata is concerned, from orders passed in Misc. Case No. 03 of 2010 and Misc. Case No. 11 of 2010 it is apparent that those were decided prior to judgment and decree dated 17.09.2012 in Title (Partition) Suit No. 80 of 2001. Order dated 17.05.2010 in Civil Revision No. 19 of 2010 records the stand taken by the respondents wherein, it has been contended on their behalf that if the petitioners prove themselves to be cosharers and the partition suit is decreed, the petitioners may get their share as may be adjudicated by the trial Court. Civil Revision No. 19 of 2010 was dismissed observing that “if it is found that the petitioners are cosharers and the claim of partition is decreed in their favour, they would get their share in the said property.” Misc. Civil Revision No. 19 of 2010 was dismissed observing that “if it is found that the petitioners are cosharers and the claim of partition is decreed in their favour, they would get their share in the said property.” Misc. Case No. 11 of 2010 was dismissed mainly on the ground of dismissal of Civil Revision No. 19 of 2010. In the present proceeding though, Misc. Case No. 02 of 2011 was dismissed on 12.07.2011, Misc. Appeal No. 119 of 2011 was pending when Title (Partition) Suit No. 80 of 2001 was decreed vide, judgment and order dated 17.09.2012. In the aforesaid facts, it cannot be held that Misc. Case No. 02 of 2011 was barred by resjudicata. 12. It is noticed that in the previous proceedings, the right of the petitioners to retain possession of the suit property was not adjudicated. The exparte decree dated 18.06.2003 is against the tenant who has already died. The petitioners are in possession of the suit property, is admitted by the respondents and by virtue of judgment and decree dated 17.09.2012 in Title (Partition) Suit No. 80 of 2001, the petitioners have been held entitled for their shares in the property. In “Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Anr.”, reported in (1998) 3 SCC 723 , the Hon'ble Supreme Court has held that it is necessary that the question raised by the resister or the obstructor must legally arise between him and the decreeholder. The Hon'ble Supreme Court has held thus: 14. “It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary.” 13. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary.” 13. Considering the above facts, I am of the opinion that the Executing Court, without adverting to the aforesaid facts and without adjudicating the real issue involved in the objection raised by the petitioners, has erroneously dismissed petitioners' petition filed under Order XXI Rule 97, 98 and 101 r/w Section 151 C.P.C. In the result, the writ petition is allowed.