Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1381 (ALL)

Shankar Lal Gupta v. Ashok Kumar Gupta

2024-05-22

AJIT KUMAR

body2024
JUDGMENT : AJIT KUMAR, J. 1. Supplementary affidavit filed today is taken on record. 2. Heard Sri Manas Bhargava, learned counsel for the petitioner and Sri Manish Tandon, learned counsel for the contesting respondents. 3. Petitioner before this court claims to be in possession of the property in question by virtue of transfer of possession given to him by erstwhile tenant and is aggrieved by the order passed by the executing court rejecting his application being Paper No. -4-C filed under Order XXI Rule 97 C.P.C. 4. Petitioner does dispute the title of decree holder in respect of the property in question but submits that manner in which his application is rejected is against the principle contained in the provisions of Order XXI Rule 97, 98, 99 and 100 C.P.C. 5. It is further contended by learned counsel for the petitioner that he has instituted a suit for permanent prohibitory injunction against the decree holder being O.S. No. -1269 of 2023 in which he is enjoying temporary injunction order against decree holder and, therefore, so long as interim order is continuing, petitioner cannot be evicted by the executing court in satisfaction of the decree. Learned counsel for the petitioner has placed reliance upon the judgment of a coordinate Bench of this Court in the case of Jahid Khan and another v. Suresh Chand Jain and others, 2013 (6) ADJ 547 and in the case of Salik Ram Singh @ Salik Ram v. Additional District Judge, Court No. 3, Gonda and others, 2022 (3) ADJ 380 . 6. Per contra, Sri Manish Tandon, learned counsel for the respondent-decree holder submits that against the order of temporary injunction passed in the suit, the decree holder had preferred misc. Civil Appeal No. -117 of 2023 which has now been finally disposed of on 15th May, 2024 rejecting 6-C application and setting aside the order dated 4th October, 2023 passed by the trial court. Thus, according to him, there is no more injunction operating in favour of the petitioner. 7. It is also submitted by learned counsel for the respondent that petitioner is a rank trespasser and has stepped into the shoes of tenant after the decree of eviction was passed. So, any transfer of possession even by executing an unregistered document is of no value and would stand hit by Section 52 of the Transfer of Property Act. 7. It is also submitted by learned counsel for the respondent that petitioner is a rank trespasser and has stepped into the shoes of tenant after the decree of eviction was passed. So, any transfer of possession even by executing an unregistered document is of no value and would stand hit by Section 52 of the Transfer of Property Act. It is contended that if any amount has been paid by the petitioner to the erstwhile tenant of the answering respondent – decree holder, petitioner has a right to recover the same by instituting an appropriate suit but he cannot resist the recovery of possession of the premises as a lawful transferee of the property. He submits that if such unscrupulous elements are permitted to bank with the trespass activity, then there will be no end of litigation and it will become very easy to frustrate a lawful decree repeatedly. 8. In support of his argument learned counsel for the respondent has relied upon the judgment of a coordinate Bench in the case of Sudhir Kumar and others v. Smt. Omwati and others, 2018 (6) AWC 6113. 9. Having heard learned counsel for the respective parties and their arguments raised across the bar and having noticed the pleadings raised before this Court as well as before the executing court, the admitted position comes out to be that answering respondent is the title holder of the suit property. It is also an admitted position that petitioner was nowhere in scene when the judgment and decree was passed by the trial court. As per his own pleadings he is a transferee of the property by a tenant who was ousted by the decree of eviction. There being no agreement between the landlord and the petitioner and the earlier sitting tenant faced with the decree of eviction, in my considered view, there could not have been any lawful transfer of premises in question by such tenant to a third party and if third party paid any amount of consideration to enter into possession by writing a note on a piece of paper, which in the present case is admittedly an unregistered document, his status is liable to be reduced to a trespasser. 10. 10. It is settled law that no one can pass on a better title than what he has, so any such transfer of possession by a person holding it to be entitled to pass on a possession is liable to be rendered as unlawful and void. The petitioner did institute a suit in which ultimately he has lost injunction application at the stage of appeal. Pleadings as to possession are only to the effect that he is occupying the premises easementary. For a person to have lawful possession to resist a decree holder, the claim to be set up must be a genuine one. One has to show that he was a bona fide purchaser or person with bona fide possession of the property to resist the execution proceedings instituted by the decree holder. In the case of Sudhir Kumar (supra) the Court has dealt with this aspect of the matter referring Order XXI Rule 102 of C.P.C. The Court vide paragraph 6 has held thus: “6. A perusal of the record shows that admittedly, Anant Ram had sold the property (which was subject-matter of agreement to sale) to the applicants/appellants on 10.6.1997. The Civil Appeal No. 66 of 1996 has been decided on 8.10.1999, meaning thereby that the disputed property has been sold during the pendency of Civil Appeal No. 66/1996, which is not permissible under law in wake of the bar created by the doctrine of lis pendens and also in view of Order XXI, Rule 102, C.P.C. (1) Order XXI, Rule 102 of Civil Procedure Code runs as under: “Rule not applicable to transferee pendente-lite - Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.” (2) A bare perusal of the above cited provision leaves no room for any doubt that any pendente-lite transferee of the subject-matter of the decree will have no right and will not be entitled to offer any resistance or obstruction in delivery of possession to the decree-holder of the subject-matter of the decree, in execution of the decree. Accordingly, he would not be entitled to file objections under Order XXI, Rule 97 of the Civil Procedure Code. Accordingly, he would not be entitled to file objections under Order XXI, Rule 97 of the Civil Procedure Code. A further perusal of the provisions contained in Rule 102 would make it clear that no such defence would be available to such pendente-lite transferee that he was a bona-fide purchaser with consideration and without notice. Rule 102 of Order XXI of the Civil Procedure Code, need to be necessarily read with the provision of Section 52 of the Transfer of Property Act, 1882. For a ready reference Section 52 of the Transfer of Property Act, 1882 is reproduced herein-below: “Transfer of property pending suit relating thereto.-During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and. in which any right so immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Explanation - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, ?r has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.” (3) A bare perusal of the provision contained in Section 52 of the Transfer of Property Act would also make it clear that defence of being bona-fide purchaser with consideration and without notice are not available to pendente-lite transferee. (4) Thus, the applicant-objector was not entitled or competent to resist or obstruct the delivery of the subject-matter of the decree to the decree-holder.” (Emphasis added) 11, Insofar as the judgment in the case of Jahid Khan (supra) is concerned, resistance or obstruction to possession of immovable property if set up by a person has to be adjudicated upon, suffice it to hold that there has to be given a harmonious construction of the different rules provided under Order XXI as Rule 98 to 101 C.P.C. 12. Some semblance of genuine right has to be found in the application itself moved by a person resisting recovery of possession in order to attract the principle of adjudication. 13. From a bare reading of various paragraphs of miscellaneous application filed under Order XXI Rule 97 C.P.C., the only pleading is that he was given possession with a tacit consent of the decree holder, otherwise every transaction was claimed between the petitioner and the erstwhile tenant. This application has been considered on merits and it has been held that petitioner was required earlier under order dated 2nd August, 2022 to produce the necessary documents but he failed to produce any document except an unregistered agreement and the tax receipts. 14. The Court has categorically recorded a finding that these documents do not give any conclusive proof of title to sustain possession of the petitioner so as to entitle him to resist recovery of possession. The court sitting in revision has affirmed the order of the trial court and held that the court cannot go beyond the decree as the plea was taken that the court passing the decree had no jurisdiction to pass it. 15. I, therefore, do not find any error in the findings returned even by the court sitting in revision. 16. Insofar as the judgment in the case of Salik Ram (supra) is concerned, that case is in the setting of different facts and, therefore, distinguishable. It is to be borne in mind that merely because the provisions are there entitling a third party to resist the recovery of possession, does not mean that the court will embark upon an inquiry in every case in detail. It is to be borne in mind that merely because the provisions are there entitling a third party to resist the recovery of possession, does not mean that the court will embark upon an inquiry in every case in detail. The court as a matter of fact will have to look into the genuine case set up and if a third party fails to lead any evidence, this Court has no option but to hold him such a party who would be not entitled to any possession. Order XXI Rule 102 of C.P.C. is very much clear on the point. 17. Thus, petition lacks merit and is, accordingly, dismissed.