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2020 DIGILAW 504 (JHR)

Rina Devi v. Anil Kumar Singh

2020-05-19

RONGON MUKHOPADHYAY

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JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mr. Amar Kumar Sinha, learned counsel appearing for the petitioners and Mr. Vibhor Mayank, learned counsel appearing for the respondents No. 1 to 4. Although vide order dated 29.07.2019 the learned counsel for the petitioners had undertaken to file an application for deletion of respondents No. 7 and 8 from the Cause Title, but no such application has been filed. 2. This writ application is directed against the order dated 04.10.2018 passed by the learned Additional Munif-V, Ranchi in Miscellaneous Case No. 26 of 2018, whereby and where under, the application preferred by the petitioners under Order XXI Rule 97 of the Code of Civil Procedure has been dismissed. The case of the plaintiffs/ opposite parties in Title Suit No. 127 of 2010 is that the lands of Revisional Survey Khata No. 98 including the suit property within Khewat No. 8, Village Hesag, District Ranchi is recorded in the name of Munshi Jahur Ali. After the death of Munshi Jahur Ali there was partition of land of Khata No. 98 along with other lands left by Munshi Jahur Ali amongst his heirs and successors through process of court. In the amicable partition the lands of Khata No. 98, Plot No. 314 of Village Hesag, P.S. Jagarnathpur, District Ranchi was allotted in favour of Md. Qumar and Majhrul Haque and they were in possession exercising their exclusive right, title and possession. Md. Qumar and Majhrul Haque who were in possession transferred 0.30 acres of land of R.S. Plot No. 314, Sub Plot No. 314/A of Khata No. 98 in favour of Rampriya Devi vide registered deed of sale dated 15.04.1965 and was put in Khas possession thereof and got her name mutated in Khijri Anchal, Namkum, Ranchi. Rampriya Devi in turn sold 8 decimals of land out of a total of 0.30 acres of land marked as Sub Plot No. 314/A/2 out of Plot No. 314/A in favour of Himanshu Shekhar Pal vide registered deed of sale dated 28.12.1968 and was put in Khas possession thereof and got his name mutated against the grant of rent receipt. Rampriya Devi in turn sold 8 decimals of land out of a total of 0.30 acres of land marked as Sub Plot No. 314/A/2 out of Plot No. 314/A in favour of Himanshu Shekhar Pal vide registered deed of sale dated 28.12.1968 and was put in Khas possession thereof and got his name mutated against the grant of rent receipt. Himanshu Shekhar Pal thereafter sold the entire 8 decimals of land as Sub Plot N. 314A/2 of Khata No. 98 within Khewat No. 8 in favour of Babulal Singh vide registered deed of sale dated 11.09.1980 and he was put in Khas possession thereof and got his name mutated against the grant of rent receipt. After the demise of Babulal Singh, defendants No. 1 and 2 being Ram Pravesh Singh and Uma Shankar Singh in collusion with each other dispossessed the plaintiff being the widow of late Babulal Singh and had constructed rooms which led to institution of the suit in which prayer was made for a declaration that the properties described in the schedule are the own property of the plaintiff who has right, title and interest over the said property. 3. The suit being Title Suit No. 127 of 2010 proceeded ex parte against the defendants No. 1 and 2 and judgment was passed on 21.01.2011 by the learned Munsif, Ranchi by which a declaration was made of the plaintiff’s right, title and interest over the suit property. 4. Pursuant to the judgment dated 21.01.2013 and decree signed on 04.02.2013, the plaintiff/ decree holder had initiated an execution case being Execution Case No. 8 of 2013 for executing a decree passed in Title Suit No. 127 of 2010 against the defendants No. 1 and 2 (the judgment debtors No. 1 and 2). The petitioners on coming to know about Execution Case No. 8 of 2013 filed an objection under Order XXI Rule 97 of the Code of Civil Procedure, inter alia, on the following grounds: (a) That the land of Khata No. 98, Plot No. 314, Sub Plot No. 314/A, Khewat No. 8, measuring 2 Kathas corresponding to Holding No. 241 of Ward No. 30/54 within Ranchi Municipal Corporation being a portion of suit property is purchased, owned and possessed by the petitioner No. 1 from her exclusive fund by virtue of registered deed of sale dated 01.09.2008 for a valuable consideration. (b) That land of Khata No. 98, Plot No. 314, Sub Plot No. 314/1B, Khewat No. 8, measuring 2 Kathas corresponding to Holding No. 241 of Ward No. 30/54 within Ranchi Municipal Corporation being a portion of suit property is purchased, owned and possessed by the petitioner No. 2 from her exclusive fund by virtue of registered deed of sale dated 01.09.2008 for a valuable consideration. (c) The petitioners after purchase of the lands mutated their names in the State and Ranchi Municipal Corporation. The petitioners had also constructed a pucca building and are residing with their family members. (d) The suit property under execution was originally owned and possessed by Munshi Jahur Ali. After the death of Munshi Jahur Ali, his legal heirs had instituted Partition Suit No. 113 of 1947 in the Court of Special Subordinate Judge, Ranchi and preliminary decree was passed on 14.04.1949. In the appeal preferred by the defendant in the partition suit, both parties had decided to compromise. (e)A writ of commission was issued to the concerned Pleader Commissioner, Ranchi in the preparation of final decree and accordingly the Pleader Commissioner prepared six different schedules of the property belonging to Munshi Jahur Ali. (f)The Pleader Commissioner as per the direction of the Court in final decree proceedings in Partition Suit No. 113 of 1947 prepared separate Takhtas for each of the daughters of Munshi Jahur Ali. (g) The plaintiff No. 5 of Partition Suit No. 113 of 1947 remained in possession of the land measuring 1.18 acre of suit Plot No. 314 including the suit property under Khata No. 98 situated at Village Hesag, P.S. Jagarnathpur, District Ranchi and after her death, her husband, namely, Akbar Ali and others owned and possessed the above property as an exclusive owner. (h) Akbar Ali and his sons sold 28 Kathas and 24.3 Kathas of land including the suit property in favour of Janta Grih Nirman Sahyog Samiti, Hatia, Ranchi, a cooperative society registered under the Bihar and Orissa Cooperative Societies Act by virtue of two registered sale deeds dated 03.05.1985. (i)The Janta Grih Nirman Sahyog Samiti, Hatia, Ranchi came in exclusive possession of the lands and thereafter sold the landed property in favour of its members. The vendor of the petitioners, namely, Rakesh Ranjan Singh had also purchased 4 Kathas of land and came in possession thereof. (i)The Janta Grih Nirman Sahyog Samiti, Hatia, Ranchi came in exclusive possession of the lands and thereafter sold the landed property in favour of its members. The vendor of the petitioners, namely, Rakesh Ranjan Singh had also purchased 4 Kathas of land and came in possession thereof. He transferred the suit property in favour of both petitioners vide separate registered deed of sale dated 01.09.2008. (j)The judgment debtor No. 1 of Execution Case No. 8 of 2013 had no right, title, interest and possession over the suit lands and had fraudulently obtained an ex parte decree against the defendants No. 1 and 2. 5. The said application preferred by the petitioners was rejected by the learned Munsif, Ranchi vide impugned order dated 04.10.2018. 6. It has been stated by the learned counsel for the petitioners that the learned court below did not consider the fact that the object of the amended provision as contained in Order XXI Rule 97(1) of the Code of Civil Procedure is to curtail litigation and not prolong it. It has been stated that the petitioners have brought on record the entire documents which would indicate their right, title, interest and possession over the suit property and it was bounden duty of the court below to have adjudicated the inter se claim between the parties. It has further been submitted that the impugned order dated 04.10.2018 is a cryptic and non-speaking order and is therefore liable to be set aside. 7. Mr. Vibhor Mayank, learned counsel appearing for the respondents has stated that the writ application itself is not maintainable. He has further stated that the petitioners were well aware about the pendency of Title Suit No. 127/2010 since the petitioner No. 1 is the wife of defendant No. 1 in the said suit and has preferred the application under Order XXI Rule 97 of the Code of Civil Procedure only to delay the execution of the decree. 8. Since a preliminary objection has been raised by the learned counsel for the respondents regarding non-maintainability of the present writ application, the same is being delved into at the threshold. 8. Since a preliminary objection has been raised by the learned counsel for the respondents regarding non-maintainability of the present writ application, the same is being delved into at the threshold. Order XXI Rule 97 of the Code of Civil Procedure reads as follows: Order 21 Rule 97 Resistance or obstruction to possession of immovable property (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction. [(2) Where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.] 9. Order XXI Rule 101 of the Code of Civil Procedure envisages that all questions including question related to right, title or interest in the property arising between the parties to a proceeding on an application under Order XXI Rule 97 or Rule 99 and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit. Rule 98 of Order XXI is with respect to orders after adjudication on the questions referred to under Rule 101. Once adjudication is made under Rule 98 or Rule 100, the order shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. 10. In the backdrop of the relevant provisions as noted above, reference is being made to the case of Samir Singh and another v. Abdul Rab and others reported in (2015) 1 SCC 379 . While considering the issue as to whether a writ application is maintainable against the order passed under Order XXI Rule 97 of the Code of Civil Procedure it was held as follows:- 26. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and others. 27. Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury and others. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury and others. The same principle has been reiterated in Keshardeo Chamria v. Radha Kissan Chamria and others and Chaube Jagdish Prasad and another v. Ganga Prasad Chaturvedi. Needless to emphasise, the said principle is well-settled. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai (supra). Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication. 11. If an executing court does not adjudicate on the application under Order XXI Rule 97 of the Code of Civil Procedure, the said order cannot attain the status of a decree and would therefore be amenable to the writ jurisdiction of this Court. 12. The question of maintainability in the above circumstances gets mingled with the merits of the case as to whether there has been an adjudication or not on the application preferred under Order XXI Rule 97 of the Code of Civil Procedure. 13. In the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported in AIR 1997 SC 856 , the question which fell for consideration was:- “Whether the appellant who claims to be a stranger occupying decreetal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor qua such property can request the executing court to adjudicate upon his resistance and obstruction without being insisted upon that first he must hand over possession and then only move an application under Order XXI Rule 99 of the Code of Civil Procedure?” 14. In the said judgment it was held as follows:- In view of the aforesaid settled legal position, therefore, and in the light of the statutory scheme discussed by us earlier it must be held that respondent no.1 decree-holder's application dated 6th May 1991 praying for issuance of warrant for delivery of possession with the aid of armed force, was in substance for removal of obstruction offered by the appellant and others under Order XXI Rule 97, CPC and had to be adjudicated upon as enjoined by Order XXI Rule 97 sub-rule (2) read with Order XXI Rule 101 and Order XXI Rule 98. In this connection the Court had also to follow the procedure laid down by Order XXI Rule 105 which enjoins the Executing Court to which an application is made under any of the foregoing Rules of the Order to fix a date of hearing of the application. As the Executing Court refused to adjudicate upon the obstruction and the claim of the appellant who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law. The High Court in revision also committed the same error by taking the view that such an application was not maintained. It is of course true as submitted by learned counsel for the decree-holder that in paragraph 4 of the judgment under appeal the High Court has noted that there was some discrepancy about the Khasra Number. But these are passing observations. On the contrary in the subsequent paragraphs of the judgment the High Court has clearly held that such an application by the objector was not maintainable and his only remedy was to move an application under Order XXI Rule 99 after handing over possession and consideration of objection to delivery of possession by a stranger to the decree at any earlier stage was premature. It must, therefore, be held that neither the Executing Court nor the High Court in revision had considered the objection of the appellant against execution or merits. It must, therefore, be held that neither the Executing Court nor the High Court in revision had considered the objection of the appellant against execution or merits. Consequently the impugned judgment of the High court as well as the order of the Executing Court in Civil Execution Case No. 25 of 1990 dated 15th February 1996 are quashed and set aside and proceedings are remanded to the Court of Munsif II, Munger to re-decide the application of respondent no.1 decree-holder dated 6th May 1991 by treating it to be one under Order XXI Rule 97 for removal of obstruction of the appellant and after hearing the decree-holder as well as the appellant to adjudicate the claim of the appellant and to pass appropriate orders under Order XXI Rule 97 sub-rule (2), CPC read with Order XXI Rule 98, CPC as indicated in earlier part of this judgment. 15. The object and purport of the amended provision of Order XXI Rule 97 of the Code of Civil Procedure has been interpreted and explained in the case of Ashan Devi and another v. Phulwanti Devi and others reported in (2003) 12 SCC 219 and which reads as under:- 21 The above mentioned decided cases of this Court clearly indicate that the provisions of Order XXI Rule 97 and 99 have been widely and liberally construed to enable the executing court to adjudicate the inter se claims of the decree holder and the third parties in the executing proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits. 25. In interpreting the provisions of Order XXI Rule 97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The Legislature purposely amended provisions in Order XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal vs. Ch. Parbhu Ram [ 1985 (1) SCC 61 ]. 16. In the case of Md. The Legislature purposely amended provisions in Order XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal vs. Ch. Parbhu Ram [ 1985 (1) SCC 61 ]. 16. In the case of Md. Jamilur Rahman v. Smt. Bachi Devi and others reported in 1998 (1) PLJR 157 it was held that a third party is entitled to resist any delivery of possession and in the event of such resistance being made such persons claim has to be considered before the stage of admission. 17. What would fall from the above is that a purposive interpretation has to be made of the provisions of Order XXI Rule 97 as well as Rule 98 and Rule 101 and such interpretation should not curtail the basic purpose of adjudication. 18. Equipped with the judicial pronouncements as noted above, the impugned order 4.10.2018 has been revisited. It is apparent that there has been no adjudication by the learned executing court in the application preferred under Order XXI Rule 97 of the Code of Civil Procedure. The learned court below had come to a conclusion that petitioner No. 2 is the owner of the property but since the husband of the petitioner No. 2 who is the judgment debtor had not preferred any appeal or revision against the judgment passed in Title Suit No. 127/2010 and the suit was within the knowledge of the petitioners, the petitioners did not have any locus standi to file such application and ultimately it was dismissed. It is therefore apparent that the application was dismissed on the ground of being not maintainable without ascertaining the application’s reasoning as to how the petitioners did not have the locus to file the application under Order XXI Rule 97 of the Code of Civil Procedure. Therefore there has been no adjudication in the application filed under Order XXI Rule 97 of the Code of 10. Civil Procedure by the learned executing court and as such the impugned order dated 04.10.2018 cannot be said to be a deemed decree and accordingly in view of the law laid down in the case of Sameer Singh and another (Supra), the present writ application is maintainable. Civil Procedure by the learned executing court and as such the impugned order dated 04.10.2018 cannot be said to be a deemed decree and accordingly in view of the law laid down in the case of Sameer Singh and another (Supra), the present writ application is maintainable. So far as the sustainability of the impugned order dated 04.10.2018 is concerned, as has been held above there has been no adjudication on the application of the petitioners under Order XXI Rule 97 of the Code of Civil Procedure which frustrates the object and purpose of the said provision as well as the incidental provisions. The learned executing court also failed to take into consideration that the suit was decreed ex parte and therefore the knowledge of the pendency of the suit was not likely to be with the petitioners although the husband of the petitioner No. 2, namely, Ram Pravesh Singh was a party defendant in Title Suit No. 127/2010. The appropriate course for the learned executing court was to have adjudicated the inter se claim of the decree holder and the objectors (petitioners) to avoid multiplicity of proceedings and prolonging the litigation. 19. Since the order impugned dated 04.10.2018 passed by the learned Additional Munif-V, Ranchi in Miscellaneous Case No. 26 of 2018 suffers from apparent illegality and is contrary to the basic principles governing an application under Order XXI Rule 97 of the Code of Civil Procedure, the same is hereby quashed and set aside and the matter is remanded back to the concerned court to decide the issue afresh in accordance with law. 20. This writ application stands allowed.