JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri Ajay Kumar Singh, learned counsel for the applicant-revisionist-petitioner and Sri Rahul Sahai, learned counsel for the plaintiff-decree holder-respondent No. 1. 2. Briefly stated facts of the present case are that House No. C.K. 1/13, Patni Tola, Bhosale Mandir, Ward Chowk, City Varanasi (hereinafter referred to as 'the disputed property'), was owned by Raje Raghuji Rao A. Bhosale son of late Raja Ajit Singh A. Bhosale, Mahal Nagpur (Maharashtra). The petitioner claims that one Vishwanath Pandey (Power of Attorney of the aforesaid Raje Raghuji A. Bhosale) executed an unregistered agreement to sell dated 15.5.2013 in favour of the petitioner to sell the aforesaid disputed property. However, a registered lease deed dated 25.6.2014 was executed by the aforesaid Raje Raghuji Bhosale through his power of attorney Vishwanath Pandey in favour of the plaintiff-decree holder-respondent No. 1 on accepting a premium of Rs.24,00,000 and monthly rent of Rs. 200. Lease rent Rs. 6,00,000 was received in advance to be adjustable towards the monthly rent. As per Clause 5 of the lease deed, the aforesaid owner of the disputed building/lessor put in actual physical possession to the plaintiff-decree holder-respondent No. 1. Thereafter, the plaintiff-decree holder-respondent No. 1 filed S.C.C. Suit No. 18 of 2015 for eviction of the defendant-judgment debtor/respondent Nos. 2 and 3. 3. In the aforesaid S.C.C. Suit No. 18 of 2015, petitioner herein filed an impleadment application under Order I, Rule 10, C.P.C. on the ground that he has an unregistered agreement to sell in his favour with respect to the disputed property, and therefore, he is a necessary party. This application being paper No. 22-Ga was rejected by the Judge, Small Cause Court by order dated 23.12.2015. This order has attained finality. In the meantime, the petitioner herein also filed Suit No. 1190 of 2015 seeking various relief’s including injunction and declaratory relief. The plaint was rejected by the Civil Judge (S.D.), Varanasi by order dated 18.2.2016 due to non-payment of appropriate court fees and not amending the valuation. Thereafter, the petitioner herein filed First Appeal No. 170 of 2016 praying to set aside the aforesaid judgment and order of the Civil Judge (S.D.), Varanasi, dated 18.2.2016. The plaint was rejected by the Civil Judge (S.D.), Varanasi by order dated 18.2.2016 due to non-payment of appropriate court fees and not amending the valuation. Thereafter, the petitioner herein filed First Appeal No. 170 of 2016 praying to set aside the aforesaid judgment and order of the Civil Judge (S.D.), Varanasi, dated 18.2.2016. The first appeal was disposed of by a Division Bench of this court by order dated 20.4.2016 and the judgment and order dated 18.2.2016 passed by Civil Judge (S.D.), Varanasi, rejecting the plaint, was upheld. But liberty was granted to the petitioner herein to file a fresh suit. This court specifically asked learned counsel for the petitioner herein as to whether any suit has been filed pursuant to the liberty granted by the Division Bench? In reply, learned counsel for the petitioner herein stated that no suit has been filed by the petitioner. 4. The aforesaid S.C.C. Suit No. 18 of 2015 [M/s. Avantika Agro Services Pvt. Ltd. v. Chandrabhan and Padma Devi) filed by the respondent No. 1 for eviction of tenants (respondent Nos. 2 and 3) was decreed by judgment dated 19.5.2016. The defendant-respondent Nos. 2 and 3 herein, were directed to be evicted. Therefore, the plaintiff-decree holder-respondent No. 1 filed Execution Case No. 8 of 2016. In the aforesaid execution case, the petitioner herein filed an application under Order XXI, Rule 97, C.P.C. claiming himself to be in possession of the disputed property on the basis of the aforesaid unregistered agreement to sell dated 15.5.2013. The aforesaid application being paper No. 4-Ga was registered as Misc. Case No. 96 of 2018. It was rejected by the Judge, Small Cause Court, Varanasi by the impugned order dated 10.12.2018 on the ground that no evidence could be produced by the petitioner to show that he is in possession of the disputed room of the disputed property on the basis of unregistered agreement to sell and that unregistered agreement to sell is not even admissible in evidence in view of Section 17 of the Registration Act. Aggrieved with this order, the petitioner herein filed Civil Revision No. 2 of 2019 [Sixth Sense Astro Gurukulam (registered trust) v. M/s. Avantika Agro Services Pvt. Ltd. and 2 others) which has been dismissed by the impugned judgment dated 15.2.2019 passed by the District Judge, Varanasi. Aggrieved with this order, the petitioner herein filed Civil Revision No. 2 of 2019 [Sixth Sense Astro Gurukulam (registered trust) v. M/s. Avantika Agro Services Pvt. Ltd. and 2 others) which has been dismissed by the impugned judgment dated 15.2.2019 passed by the District Judge, Varanasi. In paragraphs 5 and 9 of the impugned judgment, the revisional court observed/held as under: "5. Revisionist claims his possession over the premises in question on the basis of an agreement to sale alleged to be executed by the real owner in his favour on 15.5.2013. Copy of this agreement to sale has been filed by the revisionist in lower court as paper No. 11C. It is an unregistered agreement to sale and value of the subject-matter in this agreement to sale is mentioned at Rs.2.60 crores. The revisionist has not filed any document of title or the sale-deed executed in his favour by the real owner. Perusal of agreement to sale, paper No. 11C, further reveals that in this paper too, it has not been mentioned that possession over the premises in question was ever transferred to the revisionist. In his application filed under Order XXI, Rule 97 and Section 151 of C.P.C. in the lower court revisionist has also stated that possession was delivered by the real owner to the revisionist after execution of the agreement to sale dated 15.5.2013. In para 5 of his application it is mentioned that revisionist is in possession over the premises in question since 16.5.2013. Above facts also make it clear that revisionist was not given possession at the time of execution of said agreement to sale. In lower court no evidence showing his possession over the premises in question has been adduced by the revisionist. It is not disputed that a decree is in favour of M/s. Avantika Agro Services Pvt. Ltd. with respect to premises in question and by the said decree M/s. Avantika Agro Services Pvt. Ltd. had been given possession over the premises in question. Possession of a third party is the main point for consideration in an application filed under Order XXI, Rule 97 of C.P.C. 9. Possession of a third party is the main point for consideration in an application filed under Order XXI, Rule 97 of C.P.C. 9. Since the executing court has no right to adjudicate upon validity or legality of the decree, objection raised by the revisionist with regard to non-compliance of conditions set forth by the court while giving permission to sale the disputed property to the real owner cannot be considered in a proceeding before the executing court. A third party can only resist the execution of the decree on the basis of his possession over the premises in question under Order XXI, Rule 97 of C.P.C. Revisionist has failed to establish his possession over the premises in question. By mere giving a statement on affidavit it cannot be assumed that revisionist was in possession of the disputed property. It is also not necessary to make a detailed enquiry or to take evidence of the parties while deciding an application under Order XXI, Rule 97 of C.P.C. Therefore, impugned order cannot be assailed on these points too. The learned lower court has observed in the impugned order that the applicant revisionist had failed to establish his possession over the disputed premises. This observation of the learned lower court is not against the record of the case and it cannot be termed as perverse. There is no illegality in the impugned order and this S.C.C. Revision is accordingly not liable to be allowed." 5. Aggrieved with the aforesaid order of the Judge Small Cause Court dated 10.12.2018 rejecting the 4-C application under Order XXI, Rule 97, C.P.C. and judgment of the revisional court dated 15.2.2019 in Civil Revision No. 2 of 2019 passed by the District Judge, Varanasi, the petitioner herein has filed the present petition under Article 227 of the Constitution of India. Submissions: 6. Learned counsel for the petitioner submits as under: (i) The petitioner is in possession of the disputed room of the disputed property pursuant to agreement to sell dated 15.5.2013. (ii) The application of the petitioner under Order XXI, Rule 97, C.P.C. could be decided by the court below only after taking evidences and after recording a finding with regard to right, title and interest of the parties in the disputed property. Since, this has not been done therefore, the impugned orders and judgments are liable to be set aside. 7. Since, this has not been done therefore, the impugned orders and judgments are liable to be set aside. 7. In support of his submissions, he referred to paragraphs 21, 22, 24 and 26 of the petition which are reproduced below: "21. That accommodation in question situate in House No. 1/13, Patni Tola, Varanasi, is owned by Raje Raghuji Rao Bhosale who file Misc. Case No. 17 of 2010, Raje Raghuji Rao Bhosale v. Collector, Varanasi for grant of permission for sale of said house and Special Judge (Anti-Corruption), Varanasi granted permission for sale of said house, vide order dated 31.1.2014 subject to conditions that purchaser must be follower of Vaishno Sampraday who shall maintain the temple existing in the premises, perform Rag-Bhag and Pooja-path; further the sale consideration must be according to market value, must be deposited in treasury and maintenance of temple and premises be done out of interest received there from but decree-holder/respondent No. 1 got a Lease Deed dated 25/26.6.2014 executed in its favour in lieu of a premium of Rs.24,00,000.00 only which was totally in contravention of the aforesaid order granting permission dated 31.1.2014, as such alleged Lease Deed is nullity, void ab-initio and on that basis decree-holder is neither owner nor can be landlord of the aforesaid premises. 22. That any act done or any deed executed not in conformity of the order of the court is against public policy and the very basis of claim of respondent No. 1, is the lease deed got executed by it against order dated 31.1.2014 in Misc. Case No. 217 of 2010 but both the courts below kept mum and advert to record any finding which goes to the root of the matter, for the reasons best known to the courts below. 24. That in proceeding under Order XXI, Rule 97, C.P.C., it was incumbent upon the executing court to adjudicate right, title and interest of parties in respect of property in, suit, but failed to do so and similarly revisional court also dismissed revision without adverting itself to ingredients of Order XXI, Rule 97, C.P.C. 26. 24. That in proceeding under Order XXI, Rule 97, C.P.C., it was incumbent upon the executing court to adjudicate right, title and interest of parties in respect of property in, suit, but failed to do so and similarly revisional court also dismissed revision without adverting itself to ingredients of Order XXI, Rule 97, C.P.C. 26. That both the courts below failed to consider that when an application has been made under Order XXI, Rule 97, C.P.C., court is enjoined to adjudicate upon right/title and interest claimed in the property arising between the parties to a proceeding or between a decree holder or the person claiming independent right, title, interest or possession in that behalf and such determination shall be conclusive and not a matter to be agitated by a separate suit." 8. In support of his submissions, learned counsel for the petitioner relied upon the judgments of Hon'ble Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, AIR 1997 SC 856 ; Shreenath and another v. Rajesh and others, 1998 (33) ALR 273 : 1998 (2) AWC 1403 (SC); Sameer Singh and another v. Abdul Rab and others, 2015 (128) RD 412 ; Tanzeem-e-Sufia v. Bibi Haliman, AIR 2002 SC 3083 : 2002 (4) AWC 3266 (SC) and Asgar and others v. Mohan Varma and others, 2019 (133) ALR 736 and judgments of this court in Mst. Hashmi @ Batul v. Ali Ahmad and others, 2015 (109) ALR 284; Raghu Nath Saran v. VIIIth Addl. District and Sessions Judge, 2011 (84) ALR 381; Jahid Khan and another v. Suresh Chand Jain and others, 2014 (4) AWC 4158 and Smt. Firdaus Begum and others v. Smt. Sheela @ Susheela Devi Sharma Advocate and others, 2013 (6) ADJ 18 . 9. Sri Rahul Sahai, learned counsel for the plaintiff-decree holder-respondent No. 1 submits as under: (i) This petition has been filed without bringing on record certain relevant orders and judgments including the order dated 23.12.2015 in S.C.C. Case No. 18 of 2015 whereby the application being paper No. 22-Ga filed by the petitioner under Order I, Rule 10. C.P.C., was rejected by the Judge Small Cause Court and the order has attained finality. A copy of the order dated 18.2.2016 passed in Suit No. 1190 of 2015 rejecting the plaint of the petitioner under Order VII, Rule 11, C.P.C. has also not been filed alongwith this petition. C.P.C., was rejected by the Judge Small Cause Court and the order has attained finality. A copy of the order dated 18.2.2016 passed in Suit No. 1190 of 2015 rejecting the plaint of the petitioner under Order VII, Rule 11, C.P.C. has also not been filed alongwith this petition. Paragraph 11 of the objection (copy of which filed as Annexure-10) to the application of the petitioner under Order XXI, Rule 97, C.P.C. indicates that the petitioner herein filed three suits being O.S. Nos. 1188 of 2015, 1189 of 2015 and 1190 of 2015. The disclosure has been made in the present petition only with regard to O.S. No. 1188 of 2015 and the dismissal of First Appeal No. 170 of 2016 arising from O.S. No. 1190 of 2015. Thus, material facts have been concealed by the petitioner. (ii) The entire case of the petitioner is based on the alleged unregistered agreement to sell dated 15.5.2013 which was neither admissible in evidence nor it establishes possession of the petitioner over the disputed room of the disputed property. No evidence could be produced by the petitioner to indicate his possession over the disputed room. The petitioner's case is not a case of part performance of contract under Section 53A of the Transfer of Property Act, 1882. (iii) The impleadment application of the petitioner in S.C.C. Suit No. 18 of 2015 was rejected by the Judge Small Cause Court by order dated 23.12.2015 which has attained finality. The plaint of the suit of the petitioner being O.S. No. 1190 of 2015 for declaration and injunction etc., was rejected and despite grant of liberty in first' appeal by this court, no suit has been filed. Therefore, that matter has also attained finality. (iv) After the aforesaid S.C.C. Suit No. 18 of 2015 was decreed by judgment dated 19.5.2016, the tenant (judgment debtor/respondent Nos. 2 and 3) filed a recall application under Order IX, Rule 13, C.P.C. which was rejected by the court below by order dated 20.4.2018. Thereafter, the petitioner herein filed an application under Order XXI, Rule 97, C.P.C. on 24.5.2018 which is apparently in collusion with the judgment-debtor/tenant. Discussion and Findings: 10. I have carefully considered the submissions of learned counsel for the parties. Concealment of facts: 11. Undisputedly, the petitioner is neither a tenant nor owner of the disputed property. Thereafter, the petitioner herein filed an application under Order XXI, Rule 97, C.P.C. on 24.5.2018 which is apparently in collusion with the judgment-debtor/tenant. Discussion and Findings: 10. I have carefully considered the submissions of learned counsel for the parties. Concealment of facts: 11. Undisputedly, the petitioner is neither a tenant nor owner of the disputed property. He had claimed his right on the basis of an alleged unregistered agreement to sell dated 15.5.2013. There is nothing on record to show that he has filed any suit for specific performance and got any favourable order. The disputed property was leased out by its true owner to the plaintiff-decree holder/respondent No. 1 by a registered lease deed dated 25.6.2014. The plaintiff-landlord-decree holder/respondent No. 1 had filed S.C.C. Suit No. 18 of 2015 for eviction of the defendant-tenant-judgment-debtor/respondent Nos. 2 and 3 in which the petitioner herein filed an impleadment application (paper No. 22-Ga) under Order I, Rule 10, C.P.C. which was rejected by the Judge, Small Cause Court by order dated 23.12.2015. This order has attained finality. Thereafter, the petitioner filed O.S. No. 1190 of 2015 seeking various relief’s including injunction and declaratory relief. The plaint was rejected by Civil Judge (S.D.), Varanasi by order dated 18.2.2016 and the First Appeal No. 170 of 2016 filed against this order, was disposed of by a Division Bench of this court by order dated 20.4.2016 whereby the order of the Civil Judge (S.D.), Varanasi dated 18.2.2016 was upheld but a liberty was granted to the petitioner to file a fresh suit. No suit has been filed by the petitioner. These relevant facts have been concealed by the petitioner in the present petition. Applicability of Order XXI, Rule 97, C.P.C.: 12. After the S.C.C. Suit No. 18 of 2015 filed by the plaintiff-landlord-decree holder/respondent No. 1, was decreed by the court below by judgment dated 19.5.2016 against defendant-tenant/respondent Nos. 2 and 3, the plaintiff-landlord/decree holder filed Execution Case No. 8 of 2016. In the aforesaid execution case, the petitioner had filed an application being paper No. 4-Ga (registered as Misc. Case No. 96 of 2018) under Order XXI, Rule 97, C.P.C. which was rejected by the impugned order dated 10.12.2018 against which he filed Civil Revisions No. 2 of 2019 which was dismissed by the impugned judgment dated 15.2.2019. In the aforesaid execution case, the petitioner had filed an application being paper No. 4-Ga (registered as Misc. Case No. 96 of 2018) under Order XXI, Rule 97, C.P.C. which was rejected by the impugned order dated 10.12.2018 against which he filed Civil Revisions No. 2 of 2019 which was dismissed by the impugned judgment dated 15.2.2019. The application under Order XXI, Rule 97, C.P.C. was filed by the petitioner after the plaintiff-landlord-decree holder/respondent No. 1 filed Execution Case No. 8 of 2016 against the defendant-tenant/respondent Nos. 2 and 3 for execution of the judgment and decree dated 19.5.2016. Despite order dated 20.4.2016 in First Appeal No. 170 of 2016 passed by a Division Bench of this court giving liberty to the petitioner to file a fresh suit, no suit was filed by the petitioner. Thus, apparently, filing of the application being paper No. 4-Ga (registered as Misc. Case No. 96 of 2018) is in collusion with the defendant-tenant/respondent Nos. 2 and 3 to delay the execution of the decree. 13. A finding of fact has been recorded in paragraphs 5 and 9 of the impugned judgment dated 15.2.2019 that neither before the execution court nor before the appellate court, the petitioner could adduce any evidence to show his possession over the disputed property. The alleged unregistered agreement to sell does not provide that possession of the disputed property was transferred to the petitioner. Admittedly, the tenants have been evicted and possession of the disputed property has been given to the decree-holder/respondent No. 1. 14. It is settled law that under Order XXI, Rule 97, C.P.C., a third parry can resist the execution of a decree on the basis of his possession over the suit property. The courts below have found that the petitioner has completely failed to establish his possession over the disputed property. His suit for declaration and injunction being O.S. No. 1190 of 2015 was dismissed by the Civil Judge (S.D.), Varanasi by order dated 18.2.2016 and the said judgment has attained finality on dismissal of the petitioner's First Appeal No. 170 of 2016 by judgment dated 18.2.2016. Thus, there is no evidence that the petitioner has either any right or title to the disputed property or that possession of the disputed property was given to the petitioner by the erstwhile owner. Thus, there is no evidence that the petitioner has either any right or title to the disputed property or that possession of the disputed property was given to the petitioner by the erstwhile owner. Therefore, both the impugned orders passed by the courts below rejecting the application 4-C of the petitioner under Order XXI, Rule 97, C.P.C. and dismissing the revision, do not suffer from any error of law. 15. In Bool Chand (dead) thru L.Rs. and others v. Rabia and others, (2016) 14 SCC 270 (paragraph 12), Hon'ble Supreme Court held as under: "12. While a genuine petition for execution of a decree can certainly be considered, the court cannot be oblivious of frivolous objections being filed after a decree is passed in long-drawn contested proceedings. Attempt to deprive the decree-holder of benefit of such decree should be discouraged by the court where such objection is raised. The impugned order is thus, clearly erroneous and unsustainable and not a result of sound judicial approach." 16. There cannot be any quarrel that an application under Order XXI, Rule 97, C.P.C. may be filed even by a stranger and executing court has power to adjudicate upon all questions relating to right, title and interest in property arising between the parties including the stranger. But where the application (objection) is frivolous then it deserves to be rejected. In the present set of facts, the petitioner has completely failed to adduce any evidence that on the basis of alleged unregistered agreement to sell, the possession of the disputed property was transferred to him or that the alleged unregistered agreement to sell contains any clause of transfer of possession. Both the courts below have found that the petitioner could not adduce any evidence that he is in possession of the disputed property. On the contrary in execution of the decree, the defendant-tenant/respondent Nos. 2 and 3 have been evicted and the decree holder/respondent No. 1 has been given possession of the disputed property/tenanted property. This court asked the learned counsel for the petitioner to show even prima facie from any evidence that the petitioner is in possession of the disputed property but the learned counsel for the petitioner has failed even to point out any such evidence or document. This court asked the learned counsel for the petitioner to show even prima facie from any evidence that the petitioner is in possession of the disputed property but the learned counsel for the petitioner has failed even to point out any such evidence or document. The only basis of the claim of the petitioner or objection under Order XXI, Rule 97, C.P.C. is the alleged unregistered agreement to sell allegedly executed by the power of attorney holder of the erstwhile owner. Thus, an agreement which does not even reflect transfer of possession of the disputed property, cannot entitle the petitioner for the benefit of Order XXI, Rule 97, C.P.C. 17. In Bate Krishna Damani (dead) by L.Rs. v. Kailash Chand Srivastava and another, 1995 Supp (1) SCC 477 (para 4 and 5), in matters of obstructing execution of decree in a rent case, Hon'ble Supreme Court observed on the facts of that case that there was sheer abuse of the process of court resulting in thwarting execution of a valid decree during its subsistence. In Mani Nariman Daruwala @ Bharucha (D.) through L.Rs. v. Phiroz N. Bhatena and others, (1991) 3 SCC 141 (paragraph 18), Hon'ble Supreme Court laid down the law with regard to scope of interference under Article 227 of the Constitution of India and held as under: "18. Was the High Court justified in taking this view and in upsetting the finding recorded by the Appellate Bench? While considering this question it has to be borne in mind that the High Court was exercising its jurisdiction under Article 227 of the Constitution of India. In the exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior Court or Tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or Tribunal who (sic) has come or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no jurisdiction to interfere with the findings of fact (See : Chandavarkar Sita Ratna Rao v. Ashalata S. Guram). Except to the limited extent indicated above the High Court has no jurisdiction to interfere with the findings of fact (See : Chandavarkar Sita Ratna Rao v. Ashalata S. Guram). Applying these test we are unable to persuade ourselves to hold that the findings recorded by the Appellate Bench suffer from such an infirmity so as to justify interference with the said finding under Article 227 of the Constitution." 18. The judgments relied by the learned counsel for the petitioner are clearly distinguishable on facts of the present case and do not support the case of the petitioner. 19. For all the reasons afore-stated, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed with cost.