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2016 DIGILAW 1093 (MP)

Jai Anand Shukul v. Sushila Singh

2016-11-30

ASHOK KUMAR JOSHI

body2016
JUDGMENT : Ashok Kumar Joshi, J. This First Appeal has been filed by the appellants under Section 96 of the Code of Civil Procedure being aggrieved by an order dated 12.3.2010 passed by Second Additional District Judge, Jabalpur in Civil Execution Case No.136-A/1995 (Smt. Sushila Singh v. Vijay Shanker Shukul), as the order passed under Order 21, Rule 103 of the CPC is treated as a decree. 2. Undisputed facts are that the appellants are sons of present respondent No.2 Vijay Shanker Shukul. A Civil Suit filed by present respondent No.1 Smt.Sushila Singh against present respondent No. 2 Vijay Shanker Shukul in the year 1982 for specific performance of contract to sale bearing Civil Suit No.136-A/1995 was decreed by the trial Court and this decree was maintained upto the Hon'ble Supreme Court. The execution proceedings started on 27.8.2004, in which in compliance to the decree, sale-deed was executed through Court in favour of respondent No.1 Smt.Sushila Singh on 11.9.2007. Only 15 x 5 square feet area part of the suit property (Bungalow No.1496 with annexed land) of the above mentioned decided civil suit is disputed in this present appeal. 3. In the executing Court, present appellants as objectors filed an application under Order 21, Rule 99 of the CPC on grounds that they are sons of original judgment-debtor/present respondent No.2. By a partition-deed executed on 10.5.1977 between the appellants and their father, house no.1494 was given in their share. They were not having any knowledge about the agreement executed by their father in favour of Smt. Sushila Singh. They were not parties in the above mentioned suit. They received knowledge of above mentioned decree in December, 2009. Their names were mutated in Municipal Corporation's record on the basis of partition and they were in possession. The judgment-debtor was not having any right to contract to sell the portion that has fallen in their share. Thus, the decree-holder/respondent No.1 is not having any right over the disputed part of garage. Through that disputed part of appellants, there is a way of the appellants to approach the main road. The decree was not relating to the disputed portion. Thus, the appellants prayed for a detailed enquiry requiring recording of evidence and prayed for adjudication of their objection. 4. Through that disputed part of appellants, there is a way of the appellants to approach the main road. The decree was not relating to the disputed portion. Thus, the appellants prayed for a detailed enquiry requiring recording of evidence and prayed for adjudication of their objection. 4. The above mentioned application filed by the appellants as objectors was strongly opposed by the decree-holder/present respondent No.1 Smt. Sushila Singh on the grounds that she had filed civil suit in the year 1982 and the decree passed by the trial Court in her favour was maintained upto Hon'ble Supreme Court and the appellants only with conspiracy with their father have filed objection to delay the proceedings of execution and their objection could be decided without recording any evidence. 5. After hearing both parties, the executing Court of Second Additional District Judge, Jabalpur recorded findings in its order dated 12.3.2010 that the relating decree was passed by the trial Court on 14.5.1997 which was maintained by this Court on 29.4.2004 in First Appeal No.326/1997 and execution proceedings started from 27.8.2004, which are still pending. In the execution proceedings, judgment-debtor took objection regarding execution of the sale-deed and despite granting many opportunities, the sale-deed was not executed by the judgment-debtor, then the sale-deed was executed on 11.9.2007 by the Court. The disputed 15 x 5 square feet portion has been specifically marked as CDEF portion and remaining part of the house was already in possession of the decree-holder before passing of the decree and after execution of sale-deed proceedings were continued for delivery of possession of above mentioned CDEF portion. It was also observed that at the time of alleged partition between objectors and their father/judgment-debtor in the year 1977, the age of the objectors would have been 11 and 14 years. In pleadings of decided suit, it was not mentioned by their father that the adjacent house no.1494 was not of his title. The mutation of objectors in the Municipal Corporation from the year 1978 only is relating to tax recovery and it could not establish any partition or separate title or right of objectors in original suit. No any such objection was taken by the judgment-debtor/father and by the objectors. The mutation of objectors in the Municipal Corporation from the year 1978 only is relating to tax recovery and it could not establish any partition or separate title or right of objectors in original suit. No any such objection was taken by the judgment-debtor/father and by the objectors. Both objectors during their minority remained in guardianship of their father and in light of the case of Shamsher Singh v. Rajinder Prashad ( AIR 1973 SC 2384 ), sons could not challenge the sale-deed executed by the father and they could not claim that decree is not binding on them. Recording of evidence is not required to adjudicate the objection and it is clear that objection has been filed only with a motive to delay execution proceedings, whereas the objectors were having knowledge of the decree and thus, their objection was dismissed. 6. The above mentioned order has been assailed by the appellants on the grounds that the executing Court has decided their application without conducting any inquiry in the matter whereas under the provision of Order 21, Rule 101 of the CPC, all the questions are to be determined in the execution itself, as civil suit is not maintainable and all the questions relating to right, title and interest in the property arising between the parties to the proceedings are to be decided in the said execution. A common wall exists between backyard of the appellants house bearing no.1494 and adjacent house no.1496 in relation to which execution proceedings are pending. The disputed 15 x 5 square feet portion is continuously in possession of the appellants for last more than 30 years without any interruption. The disputed portion was not included in the agreement to sale executed by their father and is also not included in the sale-deed thereafter. Thus, it is prayed that the appeal be allowed setting aside the challenged order. 7. The disputed portion was not included in the agreement to sale executed by their father and is also not included in the sale-deed thereafter. Thus, it is prayed that the appeal be allowed setting aside the challenged order. 7. On the other hand, the challenged order has been supported by the learned counsel for the respondent No.1 contending that the property relating to house no.1496 was agreed to sell by their father, which is property described in schedule and bounded by red lines in the map appended to the agreement and this disputed portion has also been sold in favour of the decree-holder by executed sale-deed, which is clearly mentioned in the sale-deed itself and on this point page no.6 of the sale-deed executed by Ninth Additional District Judge, Jabalpur is referable. It is not appealable that the appellants have separated themselves from their father when they were of the age 11 and 14 years respectively only in the year 1977. Thus, it is prayed that the appeal be dismissed. 8. Learned counsel for the appellants placing reliance on a letter dated 4.4.1978 sent by the Municipal Corporation, Jabalpur to present appellants in relation to assessment of property tax argued that the appellants names were mutated in Municipal Corporation from 1978, but looking to the present age mentioned by the appellants, it has been rightly calculated by the executing Court that in the year 1977, the age of the appellants would have been 11 years and 14 years respectively. It has not been mentioned that what was the necessity of partition between the minor sons and their father, as there appears no any conflict of interests between the appellants and their father/respondent No.2. It is clear from photocopy of certified copy of order dated 9.3.2016 passed by Sixteenth Civil Judge Class-II, Jabalpur in Civil Suit No.187-A/2016 that both the present appellants and their father (respondent No.2) have jointly filed this civil suit against Smt. Sushila Singh, her husband and Municipal Corporation, Jabalpur and it appears that in the plaint filed by the appellants and their father, common address of all of them has been mentioned as R/o 1494/1495, Wright Town, Jabalpur. Thus, it is clear that actually there is no conflict of interests between the present appellants and their father and they are litigating another civil suit jointly against the same respondent No.1. 9. Thus, it is clear that actually there is no conflict of interests between the present appellants and their father and they are litigating another civil suit jointly against the same respondent No.1. 9. Copy of the application filed by the present appellants and its reply filed by the present respondent No.1 before the executing Court have been filed in the First Appeal by the appellants. It is clear that in her reply, the respondent No.1 has categorically stated that the judgment-debtor has executed an agreement to sell in relation to plot having area 3205 square feet. It has also been clearly mentioned that the remaining portion was in possession of the decree-holder since the date of agreement 23.8.1980, but the garage portion which was a part of 15 x 5 square feet and its possession is yet to be delivered to the decree-holder. It has also been mentioned in the reply filed by the respondent No.1 that according to the documents filed by the present appellants, it was clear that the disputed house (Bungalow) No.1496, Wright Town, Jabalpur is recorded in the name of one Ku. Ratna Shukla in the year 1977 but Ku. Ratna Shukla had not filed any objection. 10. The relating portion of the agreement to sale, which has been excerpted in the sale-deed executed on 11.9.2007, is as follows:- "Now this deed witnesses that in pursuance of the agreement dated 23.8.1980 and in consideration of the sum of Rs.1,22,000/- already paid by the vendee to the vendor on various dates and said sum the vendor hereby acknowledges as having received, the vendee thus does hereby convey, transfer and assign unto and to the use of the vendee the premises described in the schedule hereto including the portion of garage marked CDEF in the map appended with the sale-deed with all rights, title, interests in the property." 11. In the annexed map to the executed sale-deed, the marked CDEF portion relating to garage has specifically been shown. In para No.8 of the written agreement to sell, on which the suit was filed, executed on 23.8.1980 by respondent no.2 Vijay Shankar Shukul it is recorded clearly as follows :- "8. In the annexed map to the executed sale-deed, the marked CDEF portion relating to garage has specifically been shown. In para No.8 of the written agreement to sell, on which the suit was filed, executed on 23.8.1980 by respondent no.2 Vijay Shankar Shukul it is recorded clearly as follows :- "8. The seller will deliver possession of the area marked C.D.E.F. on the map appended which is part of the garage as soon as an alternative arrangement is made." Thus, it is clear from the agreement to sell and sale-deed that garage portion is included in the sold property. 12. From perusal of copies of judgment passed by the trial Court and this Court in First Appeal in favour of Smt. Sushila Singh, it is clear that the present respondent No.2 judgment debtor had never taken this objection before any Court that the present disputed portion 15 x 5 square feet had been given in the year 1977 to his minor sons in any partition. In above mentioned facts, the executing Court had rightly observed that in light of the above mentioned citation of Shamsher Singh (supra), present appellants could not challenge the sale-deed executed by or on behalf of their father. 13. The learned senior counsel for the appellants Shri R.K. Verma, placing reliance on the case of Anil Kumar Sahu v. Bhoora and another [2012 (4) M.P.L.J 131.] contended that the executing Court cannot go beyond the decree. Similarly on placing reliance on the case of Babulal v. Rajkumar and others ( AIR 1996 SC 2050 ) it has been argued by him that the executing Court has not properly and legally adjudicated the application filed by appellants under Order 21, Rule 99 of the C.P.C. 14. On the other hand, it has been contended by the learned Senior Counsel for the respondent no.1 Shri R.N. Singh placing reliance on the case of Silverline Forum Pvt. Ltd. v. Rajeev Trust and another (1998) 3 SCC 723 that for such adjudication it is not always required that opportunity to producing evidence should have been given. In para no.14, in the above mentioned judgment, Hon'ble Apex Court has observed as follows "The adjudication mentioned in Order 21, Rule 97 (2) 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. In para no.14, in the above mentioned judgment, Hon'ble Apex Court has observed as follows "The adjudication mentioned in Order 21, Rule 97 (2) 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. 15. It is clear that the learned executing Court has considered on all aspects of the matter and has adjudicated the application of the appellants properly as it was clear that in the year 1977 when the appellants were of the age of 11 and 14 years respectively, it was not possible for the appellants to be parted with their father who was their natural guardian. It is clear from the subsequent events also that the alleged partition between the appellants and their father in the year 1977 was a mere sham paper work only generated for some ulterior motive. The executing Court has properly and legally adjudicated the objection raised by the appellants in their application and the findings recorded by the Executing Court appear to be just and proper. Thus the appeal filed by the appellant is devoid of merits, which is hereby dismissed with costs.