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2022 DIGILAW 941 (JHR)

Sandeep Vishwakarma v. Gouri Shankar Saboo

2022-07-29

RAJESH SHANKAR

body2022
JUDGMENT : The present C.M.P has been filed for quashing the order dated 05.04.2022 passed by the Civil Judge (Sr. Division) No.1, Gumla in Misc. Civil Application No. 10/2022 (in connection with Execution Case No. 1 of 1999) whereby the application filed by the petitioner under Order XXI Rule 97 of CPC has been rejected. 2. Learned counsel for the petitioner submits that the land appertaining to Khata No. 07, R.S Plot No. 643, measuring an area of 1.13 Acres and Khata No. 8, R.S Plot No. 644, measuring an area of 0.24 Acre, Village-Chetar, P.S & District-Gumla were originally recorded in the name of Indru Singh, Chandru Singh and Chamra Singh. Indru Singh had leased out his part of share measuring an area of 0.28 Acre out of 1.13 Acres appertaining to R. S. Plot No. 643, Khata No. 07 in favour of Motilal Kesri on 15.03.1961 for a period of 99 years and thereafter Manmohan Keshri, son of Motilal Kesri had sub-leased 0.26 Acre out of 0.28 Acre of the said land to the petitioner’s father on 15.05.1991. Since then, the petitioner’s father and after his death, the petitioner is running a garage over the leased property. On 01.11.2021, few persons came to the garage of the petitioner and tried to disturb his possession and thereafter the petitioner came to know that Title Suit No. 53 of 1987/272 of 1988 was filed by Gauri Shankar Saboo and others against Suresh Prasad and others for declaration of title and confirmation of possession over the said land claiming that the recorded tenant had transferred the said land in their favour. The said suit was finally decreed in their favour vide judgment dated 19.02.1998. Aggrieved thereby, the defendants preferred first appeal, however, the same was also dismissed and thereafter they preferred second appeal before this Court, which is pending. The respondents filed Execution Case No. 1 of 1999 for execution of the decree dated 04.03.1998 prepared in terms with the judgment dated 19.02.1998. The petitioner having come to know about pendency of said execution case, filed an application under Order XXI Rule 97 of CPC, however, the same was dismissed vide the impugned order dated 05.04.2022. The respondents filed Execution Case No. 1 of 1999 for execution of the decree dated 04.03.1998 prepared in terms with the judgment dated 19.02.1998. The petitioner having come to know about pendency of said execution case, filed an application under Order XXI Rule 97 of CPC, however, the same was dismissed vide the impugned order dated 05.04.2022. It is further submitted that the plaintiffs obtained the decree in Title Suit No. 53 of 1987/272 of 1988 by misrepresenting the fact that their ancestors were ‘Jamindars’ and the said land was surrendered by Indru Singh and Chandru Singh in their favour. In fact, the plaintiffs’ ancestors were not ‘Jamindars’, rather they were only ‘Jarpesgidars’. The original Jamindar of the land was Shyam Lal Sahu. Moreover, there were three recorded tenants, but the surrender of the land was made by two of them only and this fact was also not disclosed by the plaintiffs in the Court’s below. Learned counsel for the petitioner also submits that the Hon’ble Supreme Court in the case of A.V Papayya Sastry & Ors. Vs. Government of Andhra Pradesh & Ors. reported in (2007) 2 SCC 187 has held that if fraud is detected in obtaining a judgment, the same being non-est in law, is liable to be quashed. Though the petitioner has been in peaceful possession of part of the land in question since 1991 after execution of lease in favour of his father, yet he was not made party in the said suit. 3. Heard learned counsel for the petitioner and perused the relevant materials available on record. The Court below has observed in the impugned order dated 05.04.2022 that the heirs and successors of Indru Singh and Chandru Singh were the parties in Title Suit No. 53 of 1987/272 of 1988 as the defendant Nos. 4 to 7 and the Trial Court had held that the land in question was surrendered by the said raiyats to the concerned landlord vide registered deed No. 736 dated 30.10.1933 and as such their heirs were bound by the same. It has further been observed that the Pleader Commissioner had not found possession of the petitioner over the said land. It has further been observed that the Pleader Commissioner had not found possession of the petitioner over the said land. Having observed so, the Court below has held that since the said land was already surrendered by the Indru Singh and Chandru Singh, Indru Singh had no transferable right and thus the alleged lease deed executed by Indru Singh on 15.03.1961 did not create legal right in favour of Motilal Keshri or Balu Mistry (the father of the petitioner). The petitioner is claiming that part of the said land was transferred to his father by the lessee of one of the recorded raiyats-Indru Singh and since then he/his father has been in possession of the said land. Moreover, the heirs and successors of Indru Singh were also the parties in the said suit as the defendant Nos. 4 to 7, however, they did not disclose the fact of execution of lease before the Trial Court. In support of his claim, the petitioner has brought on record the lease deed executed by Indru Singh in favour of Motilal Keshri and also the lease deed executed by Manmohan Keshri in favour of the petitioner’s father. On bare perusal of the same, it appears that both the deeds were not registered in accordance with law and as such the genuineness of the same is doubtful in present circumstance that too, when the execution of any lease deed was not brought to the notice of the Trial Court by the heirs and successors of Indru Singh, who were already parties in the said suit as the defendant Nos. 4 to 7. 4. Learned counsel for the petitioner puts reliance on a judgment rendered by the Hon’ble Supreme Court in the case of Noorduddin Vs. Dr. K. L. Anand reported in (1995) 1 SCC 242 wherein it has been held that when an application is made under Order XXI, Rule 97 of CPC, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree, subject to right of appeal and not a matter to be agitated by a separate suit. 5. The determination shall be conclusive between the parties as if it was a decree, subject to right of appeal and not a matter to be agitated by a separate suit. 5. Learned counsel for the petitioner further puts reliance on a judgment rendered by the Hon’ble Supreme Court in the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal & Anr. reported in (1997) 3 SCC 694 wherein it has been held as under:- “9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves.” 6. The aforesaid judgments relied upon by learned counsel for the petitioner are not applicable in the facts and circumstance of the present case. In the case in hand, the application filed by the petitioner under Order XXI Rule 97 of CPC has not been rejected on the ground of maintainability, rather the Court below has rejected the objection of the petitioner on merit observing that the Trial Court had specifically held that Indru Singh and Chandru Singh had already surrendered the suit land to the then landlord through registered deed executed in the year 1933 and the claim of the petitioner was based on a lease executed in the year 1961 i.e. after 28 years of surrender of the said land. Thus, no transferable right remained with said Indru Singh in relation to the suit land and hence the said lease deed did not create any legal interest in favour of the lessee. 7. In view of the aforesaid factual and legal position, I do not find any infirmity in the impugned order dated 05.04.2022 passed by the Civil Judge (Sr. Division) No.1, Gumla in Misc. Civil Application No. 10/2022 (in connection with Execution Case No. 1 of 1999). 8. The present C.M.P is accordingly dismissed. 9. 7. In view of the aforesaid factual and legal position, I do not find any infirmity in the impugned order dated 05.04.2022 passed by the Civil Judge (Sr. Division) No.1, Gumla in Misc. Civil Application No. 10/2022 (in connection with Execution Case No. 1 of 1999). 8. The present C.M.P is accordingly dismissed. 9. Consequently, I.A No. 6051 of 2022 also stands dismissed.