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2024 DIGILAW 367 (PAT)

Priyanka Kumari v. Urmila Sinha

2024-04-10

ANIL KUMAR SINHA

body2024
Anil Kumar Sinha, J. – The petitioner has filed the present civil miscellaneous application under Article 227 of the Constitution of India for setting aside the order, dated 24.08.2022, passed by learned Additional District Judge VIII, Patna, in Title Appeal No. 29 of 2021 whereby the Appellate Court has held that in the facts of the case, the petition under Order 21 Rule 99 of the C.P.C. is not maintainable, accordingly, has affirmed the order, dated 18.12.2021, passed by learned Sub-Judge IX, Patna, in Execution Case No. 40 of 2021. The petitioner has also prayed for setting aside the order, dated 18.12.2021, passed by the learned Sub-Judge IX, Patna, in Execution Case No. 40 of 2021 whereby the learned Sub-Judge has dismissed the petition filed by the petitioner under Order 21 Rule 99 holding it to be not maintainable. 2. Subject matter of the present dispute is the second floor of the residential house constructed over a small piece of land ad measuring 300 sq. ft. situated at Mohalla Machuatoli, pargana Azimabad, PS kadamkuan, District Patna, having ward No. 12 and Circle No. 9 MS plot No. 1141, 1142, 1152 Seat No. 79 Holding No. 27 (new). The property in question was purchased in an auction sale by one Late Sitaram Sao who was the brother of Late Binda Devi. Binda Devi was the grandmother of the petitioner. A certificate of sale, dated 27.05.1957, was issued in favour of Sitaram Sao under Section 20 of Displaced Persons (Compensation and Rehabilitation) Act, 1954. By executing a deed of relinquishment bearing Deed No. 4901, dated 11.07.1957, registered at Patna, the property, in question, was relinquished in the name of grandmother of the petitioner Binda Devi and father of the petitioner Ranjit Sao, who was minor, aged about 11 years, at that time. A building G + 2 was constructed and the petitioner along with other family members started living there peacefully. Further case of the petitioner is that the property was purchased out of the family income and after the death of Binda Devi, the property devolved amongst all the partners who have jointly inherited the same. The respondent no. A building G + 2 was constructed and the petitioner along with other family members started living there peacefully. Further case of the petitioner is that the property was purchased out of the family income and after the death of Binda Devi, the property devolved amongst all the partners who have jointly inherited the same. The respondent no. 1, who is the neighbour of the petitioner had an evil eye on the said property and accordingly, he induced the father of the petitioner to execute a registered sale deed in favour of the respondent No. 1 vide registered sale deed, dated 02.02.2010. The petitioner having come to know about the sale deed, dated 02.02.2010, filed a title suit bearing no. 515 of 2010 before the Sub-Judge 1st, Patna, for a declaration that sale deed dated 02.02.2010 is illegal, void, ineffective and fraudulent document and the same is incapable to bind the petitioner and other family members and further prayed for injunction. The said suit has been dismissed by the learned Trial Court vide its judgment and decree dated 21.10.2019 passed by learned Sub-Judge III, Patna. The petitioner being aggrieved by the judgment and decree, filed Title Appeal No. 06 of 2022 before the District Appellate Court and the same is pending in the court of learned ADJ-XVIII. 3. The purchaser of the property i.e., respondent no. 1st set filed three eviction suits on the ground of default of rent and personal necessity. Two eviction suits were filed against the tenants who were residing at the ground floor and the second floor and one eviction suit was filed against the petitioner for the first floor. The present case pertains to eviction suit bearing no. 20 of 2011 filed against the tenant namely Geeta Devi/respondent no. 3, who was residing at second floor. Eviction Suit No. 20 of 2011 was decided in favour of the purchaser i.e., respondent no. 1 vide judgment and decree dated 25.03.2021. The respondent no. 1 filed an Execution Case No. 40 of 2021 on 27.08.2021 and on 24.11.2021 order for delivery of possession was issued. On 10.12.2021, the Court officers, along with the police personnel, came to the residential house and forcibly dispossessed the petitioner and her family members from the property under execution i.e., second floor. The respondent no. 1 filed an Execution Case No. 40 of 2021 on 27.08.2021 and on 24.11.2021 order for delivery of possession was issued. On 10.12.2021, the Court officers, along with the police personnel, came to the residential house and forcibly dispossessed the petitioner and her family members from the property under execution i.e., second floor. It is the claim of the petitioner that she and her family members repeatedly informed the Court Officers that tenant/Geeta Devi does not stay on the subject property, however, in the garb of evicting Geeta Devi, the petitioner was eventually evicted from the second floor. According to the petitioner, the tenant Geeta Devi, during the pendency of the eviction suit, vacated the tenanted premises of second floor and handed over the possession to the petitioner in the year 2019. 4. The petitioner on 18.12.2021, filed an application under Order 21 Rule 99 read with Section 151 of C.P.C., complaining regarding illegal dispossession and also prayed for restoration of possession under Order 21 Rule 100, which has been dismissed. 5. Mr Shivendra Kumar Roy, learned counsel for the petitioner, argued that learned Sub-Judge- IX, Patna, has erroneously held the petition, under Section 21 Rule 99 of C.P.C. filed by the petitioner, as not maintainable on the basis of erroneous report of the Nazir that the delivery of possession of the property has been handed over peacefully to the decree holder. Further, the learned Additional District Judge-VIII, by his order, dated 24.08.2022, in Title Appeal No. 29 of 2021, has committed gross error of law by holding that the petition under Section 21 Rule 99 of C.P.C. is not maintainable in the facts of the case inasmuch as the petitioner cannot be allowed to raise the issue of title with respect to the property in question in the garb of Order 21 Rule 99 application as the title dispute is already pending consideration before the District Appellate Court in Title Appeal No. 06 of 2020. 6. Order 21 Rule 99 of the C.P.C. clearly prescribes remedy to a person who is not a Judgment Debtor and who has been dispossessed from any immovable property at the instance of the decree holder for the possession of such property. 6. Order 21 Rule 99 of the C.P.C. clearly prescribes remedy to a person who is not a Judgment Debtor and who has been dispossessed from any immovable property at the instance of the decree holder for the possession of such property. The petitioner is not the Judgment Debtor in the Execution Case No. 40 of 2021 but she has been dispossessed from the second floor of the property of which the petitioner has the proof in the form of video evidence. Therefore, the submission is that the case of the petitioner clearly fit within the contour of Order 21 Rule 99 of C.P.C. 7. The provisions contained in Order 21 Rule 101 of the C.P.C. provides that all the questions including the questions relating to the right, title and interest in the property have to be determined by the court in which the application under Order 21 Rule 99 is filed and no separate suit can be filed for the purpose. Thus, it has been submitted that the only remedy provided to a person who is not the Judgment Debtor and has been dispossessed from the property, is the remedy under Order 21 Rule 99. The finding of the learned court that the petition under Order 21 Rule 99 is not maintainable actually amounts to shutting the only remedy which is available to the petitioner in law. The learned Courts have failed to exercise their jurisdiction which is vested in law by holding that this petition, under Order 21 Rule 99, is not maintainable and has refused to hear the petition on merits. 8. The impugned order, dated 18.12.2001, passed by the learned Sub-Judge- IX, Patna, in Execution Case No. 40 of 2021, suffers from jurisdictional error. The finding of the learned Executing Court that since the delivery of possession, to the decree holder, has already taken place and therefore, the petition filed under Order 21 Rule 99 is not maintainable amounts to declaring that after delivery of possession, the learned District Court has become functus officio. The finding of the learned Executing Court is erroneous and is in direct conflict with the judgment of Hon'ble Supreme Court rendered in the case of Sameer Singh and Another vs. Abdul Rab and Others reported in 2015 Vol. The finding of the learned Executing Court is erroneous and is in direct conflict with the judgment of Hon'ble Supreme Court rendered in the case of Sameer Singh and Another vs. Abdul Rab and Others reported in 2015 Vol. 1 SCC 379 wherein, after discussing the legal provisions, the Hon'ble Supreme Court has been pleased to hold that the Execution Court is wrong in its assessment that it has become functus officio after delivery of possession and the same amounts to a jurisdictional error which deserves to be set aside by the high court in exercise of power under Article 227 of the Constitution of India. 9. With regard to the appellate order impugned herein, dated 24.08.2022, passed in Title Appeal No. 29 of 2021 by learned Additional District Judge-XVIII, Patna, wherein it has been held that Order 21 Rule 99 application of the petitioner is not maintainable, it has been submitted that this order is also factually and jurisdictionally erroneous. 10. The facts of the case make it clear that petitioner and respondent no. 1st Set are locked in title dispute initiated from Title Suit No. 515 of 2010 filed by the petitioner and the said dispute is presently pending before the District Appellate Court in Title Appeal No. 06 of 2020. The grounds of the said title dispute is not subject matter of consideration before this Hon'ble Court inasmuch as finding of the learned Trial Court in Title Suit No. 515 of 2010 runs contrary to the title documents of the property and therefore, the petitioner is pursuing her appeal before the Appellate Court where title appeal is pending. The respondent no. 1st Set, in order to grab the property and frustrate the cause of the previously instituted title suit by the petitioner had devised the filing of the eviction case against the tenants of the petitioner and also against the petitioner falsely claiming land lord tenant relationship. The respondent no. 1st Set, on the basis of wrong and manufactured facts claiming tenancy with the tenants who are actually tenants of the petitioner including Geeta Devi. The said eviction suits were apparently manufactured realizing that filing of a suit for recovery of possession would have to first await the outcome of the title dispute wherein the sale deed, dated 02.02.2010, based on which the respondent no. The said eviction suits were apparently manufactured realizing that filing of a suit for recovery of possession would have to first await the outcome of the title dispute wherein the sale deed, dated 02.02.2010, based on which the respondent no. 1 is claiming title over the property has been challenged by the petitioner. The Eviction Suit No. 8 of 2011, filed by the respondent No 1st Set against the petitioner and her family members, has been dismissed vide judgment, dated 29.01.2019, infact all the three eviction suits including Evictions Suit No. 20 of 2011 filed against Geeta Devi is nothing but a fraudulent means devised by the respondent No. 1st Set to somehow grab the property and frustrate the proceedings initiated by the petitioner to challenge the illegal and fraudulent sale deed, dated 02.02.2010, based on which the respondent no. 1 is claiming title over the property in question. The learned Additional District Judge-VIII, Patna, has in the impugned order, dated 24.08.2022, turned the facts on his head and has erroneously concluded that the petitioner cannot be made to raise the issue of title with respect to the property in question in the garb of Order 21 Rule 99 application since the said dispute is already pending consideration in Title Appeal No. 06 of 2020. 11. Learned counsel further submits that Order 21 Rule 99 of C.P.C. provides a safety valve to a person who is not a Judgment Debtor that has been dispossessed from a property in connection with an execution case and provides that instead of filing the separate suit against such dispossession, the aggrieved persons shall have a remedy before the Execution Court itself and the Execution Court is obliged in law under Order 21 Rule 101 of C.P.C. to determine the questions of right, title and interest by following the procedures of hearing as prescribed under Order 21 Rule 105. Though, in the first blush, it may appear from a plane reading of Order 21 Rule 101 of the C.P.C. that all questions of title has to be determined by the court while considering an application under Order 21 Rule 99, however, the subsequent provision of Order 21 Rule 104 of C.P.C. which makes the order passed under Order 21 Rule 101 of C.P.C. and Order 21 Rule 103 of C.P.C., subject to the result of any suit between the parties, would suggest otherwise. The effect of a conjoint Order 21 Rule 101 of C.P.C. and Order 21 Rule 104 of C.P.C. would be that the question of right, title and interest, as prescribed under Order 21 Rule 101 C.P.C., is required to be ascertained by the learned Court while dealing with an application under Order 21 Rule 99 is weather the person who is not a Judgment Debtor and is claiming dispossession has established a prima facie, independent and bona fide right distinct from a Judgment Debtor with respect to the property from which he has been dispossessed and if the answer to the said question is in affirmative, then the learned Court is required to pass order under Order 21 Rule 101 of C.P.C. directing for restoration of possession. 12. The petitioner relies upon the judgment of Hon'ble Supreme Court Reported in AIR 2023 SC 336 Vol. 1 (Trinity Infra Ventures and Others vs. M/s Murti and Others). Learned counsel further submits that the petitioner is having independent claim of title with respect to the property, in question, distinct from the Judgment Debtor, Geeta Devi. The tenant/Geeta Devi was the tenant of the petitioner. The petitioner had possession over the second floor of the property by herself after 2019 and through her tenant/Geeta Devi prior to 2019 and is still in possession of the ground floor and the first floor. Accordingly, the inescapable result of the same would be that the petitioner would be entitled for order for restoration of possession in accordance with the Order 21 Rule 100 C.P.C. 13. In other words, the question of right, title and interest, which in the facts of the present case ought to have been considered and determined by the court while dealing with the application of the petitioner under Order 21 Rule 99 C.P.C. The judgment of the Supreme Court which has been relied upon by the District Appellate Court, actually helps the cause of the petitioner as dismissal of the application by the Executing Court and the High Court was held to be erroneous by the Hon'ble Supreme Court in the said judgment Reported in 1995 Vol. 1 SCC 242 (Noorududdin vs. K.L. Anand). 14. Learned counsel next submitted that considering the dispute between the petitioner and respondent no. 1st set, the respondent no. 1 SCC 242 (Noorududdin vs. K.L. Anand). 14. Learned counsel next submitted that considering the dispute between the petitioner and respondent no. 1st set, the respondent no. 1st Set if so advised can claim possession in his suit for recovery of possession which can be considered after the title dispute is conclusively decided in favour of respondent no. 1 but the attempt by the respondent no. 1 through eviction suits to grab the possession of the property and thus frustrate the outcome of the adjudication of the title dispute which is pending consideration certainly deserves to fail. If the aforesaid submissions, of closing of the execution case, on the basis of the fact that a decree and in execution of which the petitioner has been dispossessed is an in-executable decree does not find favour of this Hon'ble Court then, in the alternative, it is submitted that the petitioner deserves an order under Order 21 Rule 100 of C.P.C. for restoration of possession and thereafter, the proceeding of Execution Case No. 40 of 2021 may be directed to be kept in abeyance awaiting the outcome of the proceedings initiated by the petitioner for challenging the sale deed dated 02.02.2010 which is presently pending in the form of Title Appeal No. 6 of 2020. In either of the case, the petitioner deserves an order for restoration of possession under Order 21 Rule 100 and accordingly, both the impugned orders by which the petitioner has been denied such relief deserves to be set aside by this Hon'ble Court. 15. The case of the respondent nos. 1 and 2 is that, after the death of mother, Ranjeet Sao became the absolute owner of the property who transferred the same in favour of the respondent no. 1 vide registered sale deed, dated 02.02.2010. The plot No. 1152 is free-hold property and Ranjeet Sao, being the absolute owner, on the basis of need of money, sold the property, in question, to respondent no. 1 through registered sale deed, dated 22.01.1996, and 02.05.2002 and soon after the purchase, respondent no. 1 got constructed four-storey building over plot no. 1152 and her name was mutated in revenue record as well as in the municipal record. Respondent no. 1 is residing with her family in the said premises. Further case of the respondent no. 1 is that Ranjeet Sao, being an absolute owner of the plot nos. 1 got constructed four-storey building over plot no. 1152 and her name was mutated in revenue record as well as in the municipal record. Respondent no. 1 is residing with her family in the said premises. Further case of the respondent no. 1 is that Ranjeet Sao, being an absolute owner of the plot nos. 1141 and 1142 having a total area of 300 sq. ft., sold in favour of respondent no. 1 through registered sale deed, dated 02.02.2010, and handed over possession to decree holder/respondent no. 1. Since entire property has been sold by Ranjit Sao, due to exigency of money, as such, he requested respondent no. 1 to allow him and his family members to reside in the 1st floor situated in plot No. 1141 and 1142 as tenant. The request of Ranjeet Sao was accepted by decree holder but after a few month, he stopped payment of rent and filed Title Suit No. 515 of 2010 through his daughter i.e., petitioner for declaration of a title over the suit land on the basis of so called power of attorney which was said to have been executed by her father Ranjeet Sao. It is further case of decree holder/respondent no. 1, that after purchase of the property, they also got some modification done in the property in which altogether three tenants were there namely Ranjeet Sao, Geeta Devi and Raju Kumar and all with ill motive, stopped payment of rent hence, three Eviction Suit No. 8/11, 14/11 and 20/11 were filled for eviction of all the tenants including the petitioner. In the Title Suit No. 515 of 2010 filed by the petitioner respondent Nos. 1 and 2 appeared after service of summons and contested the same on merit by filling written statement on 21.11.2011 in which there was categorical averment in paragraph no. 14 about filing of eviction suit which clearly goes to show that petitioner was aware about the eviction suit in the year 2011 itself. 16. Even petitioner, along with her family members, also appeared in Eviction Suit No. 8/11 on 10.01.2012 by filing written statement in which she has admitted in paragraph nos. 27 and 29 about filing of Eviction Suit No. 20/11 which goes to show that she was fully aware about pendency of the eviction suit right from the beginning. 17. 16. Even petitioner, along with her family members, also appeared in Eviction Suit No. 8/11 on 10.01.2012 by filing written statement in which she has admitted in paragraph nos. 27 and 29 about filing of Eviction Suit No. 20/11 which goes to show that she was fully aware about pendency of the eviction suit right from the beginning. 17. Insofar as one of the tenants, namely Raju Kumar, is concerned, Eviction Suit No. 14 of 2011 has been decided ex-parte, vide judgment and decree, dated 28.06.2011, against him and later on, he himself executed a deed of understanding on 12.05.2011 and has vacated the premises which was subject matter of Eviction Suit No. 14 of 2011. At that time itself, Geeta Devi defendant of Eviction Suit No. 20 of 2011 was also ready to vacate the suit premises but at the instance of the petitioner, she contested the suit by the same advocate who was contesting for the petitioner. Finally, Eviction Suit No. 20 of 2011 has been decreed in favour of the respondent no. 1st Set vide judgment and decree, dated 25.03.2021. The Title Suit No. 515 of 2010, filed by the petitioner, claiming right, title and interest has already been dismissed by the competent Trial Court having jurisdiction vide its judgment and decree, dated 21.12.2019. The petitioner was fully aware about the pendency of the eviction suit right from 2011 itself but she did not take care even to get her impleaded as party to the suit if she was real title holder of the suit premises. Even she has deposed in Eviction Suit No. 20 of 2011 on behalf of Judgment Debtor as D.W. 03 but she did not even whispered a word about so called tenancy agreement executed by the petitioner with Geeta Devi, on 01.02.2009 for ten years ending on 31.01.2019, as stated in petition under Order 21 Rule 99 of C.P.C. When the petitioner failed to achieve her goal through Geeta Devi (Judgment Debtor) then she filed the petition under Order 21 Rule 99 of C.P.C. in execution case even though she has no cause of action since she was not in possession over the suit land nor she has shown bona fide that despite having knowledge, about the eviction suit, she did not take any step since 2011-12. 18. Learned counsel for the respondent no. 18. Learned counsel for the respondent no. 1st Set argued that upon bare perusal of Order 21 Rule 99 of C.P.C. it would be evident that said provision has been inserted for those persons who have been dispossessed by the decree holder or purchaser then he/she can file an application before the Court for adjudication in accordance with the provision, as laid down in Sub Rule 2 of Order 21 Rule 99. Meaning thereby that a person who was not a party to the proceeding or he/she was not aware about the proceeding and all of a sudden, he/she has been dispossessed, can seek the remedies under Order 21 Rule 99 of C.P.C. But in the present case, the petitioner was fully aware about the pendency of the Eviction Suit No. 20 of 2011 right from the beginning from the W.S. filed by the respondents in Title Suit No. 515 of 2010 on 21.11.2011 and the written statement filed by the petitioner and others in Eviction Suit No. 08 of 2011. 19. By filing petition under Order 21 Rule 99, the petitioner has taken stand for the first time that there was tenancy agreement with Judgment Debtor (Geeta Devi) which expired in the year 2019 and after expiry of the said tenancy, Geeta Devi has handed over possession in favour of the petitioner. Now, the question, which arises for consideration, is that if such tenancy document was with the petitioner, then what prevented her to produce it either in Title Suit No. 515 of 2010 or in Eviction Suit No. 20 of 2011 in which she appeared as D.W. 03 and or in Eviction Suit No. 08 of 2011 which was filed against the petitioner and her family members. This clearly shows that this story has been cooked up for the first time in petition under Order 21 Rule 99 of C.P.C. Insofar as the right, title and interest of the petitioner is concerned, the same has already been decided by the competent Civil Court in Title Suit No. 515 of 2010 vide judgment and decree, dated 21.12.2019 which was filed by the petitioner herself. 20. 20. The suggestion of the petitioner that instead of filing eviction suit, respondents ought to have filed regular suit for recovery of possession is not tenable because of the fact that it is a specific case of the petitioner that soon after execution of registered sale deed, dated 02.10.2010, respondent no. 1st Set came in possession and on the request of father of the petitioner, he and his family members including the petitioner, were allowed to stay as tenant in 1st floor of the property but later on, they stopped payment of rent, hence, Suit No. 08 of 2011, was filed in which the decree of eviction has been allowed by the Lower Appellate Court vide its judgment and decree, dated 14.03.2023. 21. Insofar as the plea of the petitioner for getting restoration of possession, under Order 21 Rule 100, is concerned, the petitioner has to show and establish his title to the property without which she could not ask the Court to put her back in possession. Law is well settled by Hon’ble Supreme Court in the judgment reported in AIR 2019 SC-Page No. 4840. 22. The facts of the case and conduct of the petitioner shows that she has been set up by her father only with a view to linger the proceeding and from depriving the respondent no. 1st Set from the usufruct of the eviction decree. 23. The petitioner has also argued that she has share in the property then the question will arise, for consideration, that she herself filed Title Suit No. 515 of 2010 for declaration of right, title and interest over the suit land but no relief for partition have been made which shows that somehow or the other, she wants to linger the matter. Moreover, if Title Appeal No. 06 of 2020 filed by the petitioner, is allowed by the learned Appellate Court, the petitioner shall have every right to get possession over the suit land under Section 144 of the C.P.C. He relies upon the judgment of 2023 (3) BLT 134 and the judgment reported in 2019 (20) SCC 227. 24. Moreover, if Title Appeal No. 06 of 2020 filed by the petitioner, is allowed by the learned Appellate Court, the petitioner shall have every right to get possession over the suit land under Section 144 of the C.P.C. He relies upon the judgment of 2023 (3) BLT 134 and the judgment reported in 2019 (20) SCC 227. 24. In the present case, the petitioner has claimed the right, title and interest over the disputed land but the right and title has already been adjudicated and rejected in regular Title Suit No. 515 of 2010 filed by her hence now she has no right to file an application under Order 21 Rule 97. 25. Learned counsel for the petitioner, in reply, submitted that attempt of the respondent no. 1st Set to defend the impugned orders is primarily based on three submissions firstly, on the ground that the petitioner did not take steps for being added as a party in the eviction suit despite of the fact that she had deposed as D.W. No. 3 in the eviction suit; Secondly, after purchase of property vide sale deed, dated 02.02.2010, the respondent no. 1 has become the owner of the property in question and thirdly, that the petitioner was not dispossessed from the property and infact, the Judgment Debtor/Geeta Devi was dispossessed from her property on 10.12.2021. All the three submissions as submitted by the respondent no. 1st Set are not factually and legally tenable. In respect to the first submission, it is submitted that it is an established law that plaintiff is a dominus litis-master of the suit and therefore, it is for the plaintiff to implead the defendants in his suit against whom they want relief and a decree cannot be enforced against the person who has not been impleaded as a defendant in his suit. Therefore, it is submitted that the first submission advanced by respondent no. 1st Set is in the teeth of the aforesaid well established legal principle and thus is legally untenable. The petitioner had clarified her stand when she had deposed as D.W. No. 3 in the eviction suit and therefore, there was no legal obligation on the petitioner to get impleaded in a fraudulent suit and decree of the said suit is not binding on the petitioner as she is not a party in the said eviction suit. 26. The petitioner had clarified her stand when she had deposed as D.W. No. 3 in the eviction suit and therefore, there was no legal obligation on the petitioner to get impleaded in a fraudulent suit and decree of the said suit is not binding on the petitioner as she is not a party in the said eviction suit. 26. With regard to second submission of respondent no. 1st Set regarding ownership of the property in question, it is submitted that sale deed based on which such ownership is claimed is subject matter of challenge by the petitioner in the proceeding arising out of Title Suit No. 515 of 2010 which is presently pending in the form of Title Appeal No. 06 of 2020. In contents of the sale deed regarding clear title of the vendor, Ranjit Sao is manifestly wrong and contrary to the recitals in the mother title documents in the year 1957. Further the allegation of fraud in the execution of the sale deed is also writ large. In view of the fact that consideration amount in the sale deed and the manner in which the sale deed has been executed. 27. With respect to the third submission that the petitioner was not evicted and infact, the Judgment Debtor/Geeta Devi was evicted from the property in question on 10.12.2011, it is submitted that the same is factually wrong and can be proved so by the petitioner by way of video evidence which has been preserved and which records the occurrence on 10.12.2021 on which date, the petitioner was dispossessed from the second floor. The said fact is also proved wrong from the fact that the petitioner and her family members are still in possession of the ground floor and first floor of the same property and the second floor with respect to which the present case pertains, is locked after the event of delivery of possession on 10.12.2021. 28. I have heard learned counsel for the parties and have perused the relevant materials available on record. 29. For proper appreciation of the issues involved in the present case, perusal of certain provisions of order 21 shall be necessary. Order 21 rule 99 reads as under: – 99. Dispossession by decree-holder or purchaser. 28. I have heard learned counsel for the parties and have perused the relevant materials available on record. 29. For proper appreciation of the issues involved in the present case, perusal of certain provisions of order 21 shall be necessary. Order 21 rule 99 reads as under: – 99. Dispossession by decree-holder or purchaser. – (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 30. The aforesaid provision is available for a third person in possession claiming his or her independent right if that person is dispossessed, in that event, such third person can complain of dispossession to the Executing Court. 31. Order 21 Rule 101 prescribes as quoted hereinbelow: – 101. Question to be determined-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. 32. Rule 104 of Order 21 reads as under: – 104. Order under rule 101 or rule 103 to be subject to the result of pending suit-Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property. 33. 33. The aforesaid Rule 104 says that every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made under relevant rules 97, 98, 99, etc. 34. Delving upon Rule 101 and Rule 104, it transpires that Rule 101 puts a bar to the separate suit after filing a petition under Rule 97 or Rule 99. On the contrary, Rule 104 protects a suit by such a person filed prior to commencement of proceeding under Rule 97 or Rule 99. By using the words in Rule 104 "subject to the result of any suit" the legislature intended that notwithstanding the pendency of suit filed prior to the commencement of proceeding under Rule 97 or Rule 99, the proceeding under Rule 97/99 should not be stalled. 35. In the present case, the undisputed fact is that in relation to the property in question, Title Suit No. 515/10 was filed by the petitioner for a declaration that sale deed, dated 02.02.2010, is illegal, void, ineffective and fraudulent document. In other words, the petitioner claimed the right, title and interest in the property in question, which was purchased by way of registered sale deed by respondent no. 1st Set vide sale deed, dated 02.02.2010. The suit was dismissed vide judgment and decree, dated 21.12.2019. A title appeal bearing no. 6 of 2020 has already been filed by the petitioner and the same is pending as of today. The petitioner is claiming her dispossession in execution of the decree passed in Eviction Suit No. 20 of 2011 vide decree, dated 25.03.2021. The petitioner filed the petition under Order 21 Rule 99 on 18.12.2021. Thus it is abundantly clear that prior to the date of commencement/filing of the petition under Order 21 Rule 99 by the petitioner, the Title Appeal No. 06 of 2020, arising out of the title suit was pending. Appeal is continuation of the suit which was pending and was prior in time to the commencement of the proceeding under Order 21 Rule 99. 36. Division Bench of the Calcutta High Court, in Muktipada Sarkar vs. H.K. Mallick & Co. & Another, reported in 2003 SCC Online Cal 467, in paragraph 23 and 24 has held as follows: – 23. 36. Division Bench of the Calcutta High Court, in Muktipada Sarkar vs. H.K. Mallick & Co. & Another, reported in 2003 SCC Online Cal 467, in paragraph 23 and 24 has held as follows: – 23. It is therefore clear from the provisions of Rules 97 to 104 of Order 21 of the Code of Civil Procedure that a person who files a suit claiming a right to the present possession of an immovable property, for recovery whereof a valid Civil Court decree exists, can resist dispossession in execution of such a decree only if he succeeds in a proceeding in connection with such decree under Rule 97 or Rule 99 of Order 21. If the order passed by the executing Court under Rule 98 or Rule 100 goes against such a person, he will no longer enjoy protection to his possession of the property; he is bound to be dispossessed of it in execution of the decree. The fact that a suit of the nature referred to in Rule 104 is pending will be totally insignificant in such a situation for the purpose of protecting his present possession of the property. What Rule 104 contemplates is that his dispossession in terms of orders under Rule 98 or Rule 100 passed on the basis of determinations made under Rule 101 shall be subject to the result of his suit. In other words, the result of his such suit shall prevail over the determinations made and consequent orders passed under Rules 101 and 98 or 100 respectively. He will be entitled to restoration of possession if the result of his suit goes in his favour. 24. We are thus of the opinion that a person filing a suit of the nature referred to in Rule 104 of Order 21 of the Code of Civil Procedure is not entitled to get a temporary injunction in his such suit so as to protect his present possession of the suit property for recovery of possession whereof there exists an executable Civil Court decree. For protecting his such right during pendency of his such suit he is required to succeed only and only in a proceeding under Rule 97 or Rule 99 when such a proceeding commences. For protecting his such right during pendency of his such suit he is required to succeed only and only in a proceeding under Rule 97 or Rule 99 when such a proceeding commences. On the ground that a proceeding under Rule 97 is yet to commence, and hence in the already pending suit an injunction prayer for protecting of the present possession can be considered, may be a contention of such person, but it also cannot be accepted. In the face of a decree for recovery of possession, such a person will have no protection of his present possession, except by a favourable order in a proceeding under Rule 97 or Rule 99. The words “subject to the result of any suit” have been employed in the provisions of Rule 104 with the specific intention to ensure unhindered progress of a proceeding for execution of a decree for recovery of possession of immovable property. While Rule 101 puts an implied bar to the maintainability of a suit filed, after a proceeding under Rule 97 or Rule 99 commences, by any one who resists delivery of possession by putting up some claim to the possession of the property, Rule 104 saves a suit by such a person filed, prior to the commencement of such proceeding, for such purpose. But by using the words “subject to the result of any suit” this rule made it clear that despite pendency of such a prior suit, the proceeding under its preceding rules should not be stalled. An injunction in such a prior suit to stall the proceeding under the rules preceding Rule 104 will thus be contrary to the legislative intendment with which such provisions have been made. The use of the word “result” is very significant; the phrase is not “subject to any suit.” 37. The petitioner has filed the petition under Order 21 Rule 99 on 18,12.2021 claiming that she has been dispossessed in execution of the eviction decree passed in Eviction Suit No. 20 of 2011 on 10.12.2021 inasmuch as the tenant, who was occupying the premises of second floor, namely Geeta Devi, surrendered the tenancy in favour of the petitioner in 2019 itself. 38. 38. Learned Executing Court dismissed the application under Order 21 Rule 99 on 18.12.2021 as not maintainable on the ground that now the decree has been executed and delivery of possession has been given in favour of the respondent. 39. I find force in the argument of learned counsel for the petitioner that after delivery of possession to the decree holder, the Executing Court does not become functus officio and can decide the petition under Order 21 Rule 99 and Order 21 Rule 101 provides for the determination of necessary issues. Since the learned Executing Court has dismissed the petition as not maintainable, as such, in my opinion, it has failed to exercise the jurisdiction vested in it. 40. I do not find any force in the argument of learned counsel for the respondents and the judgments, relied upon by them, are not applicable in the facts of the present case. 41. The District Appellate Court, dismissed the appeal preferred by the petitioner against the order passed by learned Executing Court, on the ground that the suit filed by the petitioner challenging the sale deed executed in favour of the respondent has been dismissed by the court of first instance and the petitioner has preferred title appeal, as such, the petition under Order 21 Rule 99 is not maintainable. 42. Learned Appellate Court appears to have lost sight of Order 21 Rule 104 while dismissing the appeal of the petitioner. The ambit and scope of Order 21 Rule 104 read with Order 21 Rule 99 and Rule 101 has been discussed by this Court in the preceding paragraph. Pendency of suit/appeal prior to commencement of proceeding under Order 21 Rule 99, is not a bar in entertaining the petition against dispossession. 43. Considering the facts and discussions held hereinabove, the impugned orders, dated 24.08.2022, passed by learned Additional District Judge VIII, Patna, in Title Appeal No. 29 of 2021 and order, dated 18.12.2021, passed by the learned Sub-Judge IX, Patna, in Execution Case No. 40 of 2021, are set aside and the learned Executing Court is directed to decide the petition filed under Order 21 Rule 99, by the petitioner, as per the law on its own merit. It is made clear that this Court has not expressed its opinion upon respective merits of the case of the parties. 44. In the result, this application is allowed. 45. It is made clear that this Court has not expressed its opinion upon respective merits of the case of the parties. 44. In the result, this application is allowed. 45. There shall be no order as to costs.