When the respondent No.1
filed his application claiming to be put back into
possession, it was obliged to establish its right,
title or interest in the property without which his
application could not have been allowed. The
Executing Court has considered the application of
respondent No.1 in right perspective and has clearly
held that respondent No.1 failed to prove his title
by adverse possession, hence application deserves to
be rejected.
28. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100
and 101, the Court is not to decide such question.
Without determination of right, title or interest,
the application could not have been allowed. We
having already extracted the observations of the High
Court, where it clearly held that the title in
respect of the property by way of adverse possession
need not be gone into in the appeal before it. The
above observation of the High Court was erroneous. In
the proceeding under Order XXI Rules 99, 100 and 101,
right, title or interest has to be determined and
without establishing right, title or interest, the
respondent No.1 cannot claim that he should be put
back into possession. We do not accept the
submission of the learned counsel for the respondent
that on mere fact that respondent No.1 was in
possession of the premises prior to being
dispossessed, they should be put back into
possession. For putting back into possession, the
respondent No.1 was obliged to establish his title to
the property by adverse possession, without which, he
could not have asked the Court to put him back into
possession. The High Court clearly erred in allowing
the appeal and the Executing Court has rightly
rejected the application filed by respondent No.1.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5632 OF 2019
SHAMSHER SINGH Vs LT. COL. NAHAR SINGH
ASHOK BHUSHAN, J.
Dated:July 29, 2019.
This appeal has been filed against the Division
Bench Judgment of Calcutta High Court in FMA No.720
of 2005, by which the appeal filed by the respondent
No.1 has been allowed setting aside the order of
Executing Court dated 10.08.2004 rejecting the
application filed by respondent No.1 under Order XXI
Rules 98, 99 and 100 of the Code of Civil Procedure
(hereinafter referred to as “CPC”).
2. Brief facts of the case giving rise to this
appeal are:-
1
2.1 One Tarapada Dutta owned premises No.15,
Sahanagar Road, P.S. Tollygunge, Calcutta.
An agreement for sale was executed by Anadi
Dutt, who claimed to be son of Tarapada Dutta
in favour of Rajvindar Singh in respect of 4
Kh. 4 Ch. and 00 sft. of land and structures
at premises No.15. Another agreement for
sale was entered by Anadi Dutt with Shamsher
Singh in respect of 4 Kh. 6 Ch. and 6 Sft. of
land and structures of premises No.15.
2.2 The respondent had filed a T.S. No.211 of
1990 before the 3rd Munsif at Alipore praying
for decree of declaration of his right with
regard to premises in question on the basis
of adverse possession.
2.3 Anadi Dutt having not executed the sale deed
in pursuance of agreement for sale dated
07.05.1990, two title suits being Suit No.50
of 1994 and 51 of 1994 were filed by
Rajvindar Singh and Shamsher Singh, which
were decreed ex-parte on 20.12.1994. In
pursuance of decree of the Court, two
separate Deeds of Conveyance were executed in
favour of Dayal Singh (Nominee of Rajvindar
Singh) and in favour of Shamsher Singh.
Decree holders filed two execution cases vide
Execution no. T.Ex. No.09 of 1995 and T.Ex.
No.10 of 1995 seeking delivery of possession
of the suit property. First Time Court
Bailiff could not succeed in delivering
possession, however, subsequently the Court
Bailiff with the help of police delivered
Khas vacant possession of the suit premises
to the Decree Holder on 12.04.1996.
2.4 After lapse of 30 days, respondent No.1 filed
two Misc. cases Nos. 10 of 1996 and 11 of
1996 against Rajvindar Singh, Shamsher Singh,
Dayal Singh and Asis Dutt under Order XXI
Rules 98, 99 and 100 CPC before the 6th
Assistant District Judge, Alipore. In the
said two Misc. cases, respondent No.1 claimed
that his father Sardar Iqbal Singh was the
occupier and was running his business under
the name and style as Public Transport
Business in the suit premises and after his
death, respondent No.1 has been running a
business under the name and style of Ex-
Service United Coal Enterprise (P) Ltd. In
the above said Misc. Case No.10 of 1996, the
respondent No.1 claimed that Anadi Dutt was
not the son of Tarapada and it was Asis Kumar
Dutt, who was the only son, owner and only
legal heir of Late Tarapada. It was also
claimed that a T.S. No.211 of 1990 was
pending before 3rd Munsiff at Alipore filed by
respondent No.1, in which he claimed right
and title of the suit premises on the basis
of adverse possession. It was further claimed
that Shamsher Singh, Rajvindar Singh and
Dayal Singh had fraudulently obtained decree
in collusion with Anadi Dutt and has evicted
the respondent No.1 from the suit property.
2.5 In Misc. proceeding application, although,
the respondent No.1 has impleaded Asis Kumar
Dutt but he neither contested the Misc.
application nor challenged the title of Anadi
Dutt, against whom an ex-parte decree was
passed. On 21.01.1999, Dayal Singh also got
a deed of conveyance executed in his favour
by Asis Kumar Dutt, alleged true legal heir
of the Late Tarapada Dutta. Dayal Singh got
his name mutated in Kolkata Municipal
Corporation.
2.6 The Executing Court by order dated 10.08.2004
rejected Misc. Case No.10 of 1996 and Misc.
Case No.11 of 1996 filed by respondent No.1.
Trial court held that respondent No.1 failed
to prove that he has acquired title by way of
adverse possession. Against the order dated
10.08.2004 rejecting the Misc. applications
filed by respondent No.1, first appeal, FMA
No. 720 of 2005 was filed by respondent No.1
in the Calcutta High Court, which appeal has
been allowed by Calcutta High Court by the
impugned judgment dated 15.12.2009. The High
Court by impugned judgment has set aside the
order of the Executing Court dated 10.08.2004
disposing the application filed by respondent
No.1 under Order XXI Rules 98, 99 and 100
with a direction that appellant (respondent
No.1 in this appeal) should be put back into
possession of the suit property. Aggrieved
by the judgment of the High Court, this
appeal has been filed.
3. We have heard Shri Debal Banerji, learned senior
counsel for the appellant and learned counsel
appearing for the respondent.
4. Shri Debal Banerji, learned senior counsel
appearing for the appellant submits that Executing
Court had rightly rejected the application of
respondent No.1 filed under Order XXI Rules 98, 99
and 100 CPC, he having failed to prove his title over
suit premises. It is submitted that the appellants
were put in possession of the property in execution
of decree of the Court. The Executing Court having
held that respondent No.1 failed to prove his title
by adverse possession, the application was rightly
rejected. It is further submitted that T.S.No.211 of
1990 filed by respondent No.1 claiming for
declaration of the title on the basis of adverse
possession has been subsequently dismissed on
16.03.2009. It is submitted that High Court
committed error in allowing the appeal filed by
respondent No.1 without any valid ground. It is
submitted that High Court has in its impugned
judgment erred in taking the view that the question
whether the appellant has obtained any title in
respect of the suit property by way of adverse
possession or not, need not be gone into in the
appeal. It is submitted that decree passed by Civil
Court in favour of the appellant was never challenged
by anyone including the respondent No.1 or Asis Kumar
Dutt, who is claimed by respondent No.1 as son of
Tarapada Dutta. Respondent No.1 having failed to
prove his title to the property, he was not entitled
to put back in the possession and High court
committed error in allowing the appeal of respondent
No.1.
5. Learned counsel for the respondent refuting the
submissions of the learned counsel for the appellant
contends that the fact is that respondent No.1 was in
long possession of the premises and had acquired
possessory title. It is submitted that several
documents were filed by the respondent No.1 before
the Executing Court to prove his possession. It
having been found that respondent No.1 was in
possession prior to he being dispossessed in
execution of the decree, he was entitled to be put
back into possession. It is submitted that it was
not necessary for respondent No.1 to establish his
title to the land in dispute for purposes of Order
XXI Rules 98, 99 and 100 CPC. It was sufficient for
the respondent No.1 to prove that he was in
possession prior to his dis-possession, which was
sufficient for putting him back into possession. He
submitted that the High Court did not commit any
error in putting back the appellants into possession
by allowing the appeal. He submits that the
appellants have obtained a fraudulent decree against
a person Anadi Dutt, claiming to be son of Late
Tarapada Dutta, whereas the real son is Asis Kumar
Dutt. The respondent No.1 has been dispossessed on
the basis of a fraudulent ex-parte decree, on the
strength of agreement of sale executed by a person,
who has no title to the property.
6. We have considered the submissions of the learned
counsel for the parties and have perused the records.
7. There is no dispute between the parties that the
premises in question was originally owned by one
Tarapada Dutta. The case of the respondent No.1 is
that his father Late Iqbal Singh has trespassed into
the premises No.15, Sahanagar Road and after his
death in 1965, it was respondent No.1, who was in
occupation and possession of the premises. In
pursuance of decree for specific performance of
contract passed in T.S. No. 50 of 1994 and T.S. No.51
of 1994, in execution proceedings, the decree holders
were put in possession on 12.04.1996. At the time of
taking possession, one Shri Gopal Adak was found
present in the premises, who had claimed to be
employee of respondent No.1. Respondent No.1 had
filed a suit for declaration of the title on the
basis of adverse possession being T.S. No. 211 of
1990. Copy of the plaint of the suit filed in the
Court of 3rd Munsiff, 24 Parganas is brought on record
as Annexure P-1. In the suit, following reliefs had
been claimed by the respondent No.1, who was
plaintiff in the suit:-
“a) A declaratory decree that the plaintiff
has absolute possessory title in the
suit premises No.15, Shahanagar Road,
Calcutta under P.S. Tollygunge as fully
described in the Schedule ‘A’ of the
plaint since the year 1965 to the
exclusion of all other person or
persons.
b) Decree for permanent injunction
restraining the defendant and/or any
person on its behalf and agent, its men,
for interfering with the plaintiff’s
possession and occupation of the suit
premises fully described in Schedule ‘A’
of the plaint in any manner whatsoever.
c) Temporary injunction.
d) Ad-interim injunction in terms of prayer
(c) above.
e) Commission.
f) Receiver.
g) Costs.”
8. In the application, which was filed by respondent
No.1 for putting him back into possession under Order
XXI Rules 98, 99 and 100 CPC, the respondent No.1 has
claimed his possession since 1965 after death of his
father. The respondent No.1 in his application has
also relied on filing of suit for declaration of his
title being Suit No.211 of 1990. There is no dispute
between the parties that in execution of decree of
specific performance, the appellants were put in
possession and respondent No.1 aggrieved by his
dispossession had filed an application under Order
XXI Rules 98, 99 and 100.
9. Before we proceed further, it is necessary to
look into the provisions of Order XXI Rules 98, 99
and 100, as it existed at the relevant time. It is
to be noted that by Code of Civil Procedure
(Amendment) Act, 1976, there has been amendment in
Order XXI Rules 97 to 103. Order XXI Rule 97 deals
with the resistance or obstruction to possession of
immovable property, with which we are not concerned.
Present is a case where the respondent No.1 alleged
his dispossession by decree holders.
10. Order XXI Rules 97 to 103 was substantially
amended by Code of Civil Procedure Amendment Act,
1976, Act No.104 of 1976 w.e.f. 01.02.1977. The bill
11
further to amend the code of Civil Procedure of 1908
was introduced in Parliament as Bill No.27 of 1974 on
08.04.1974. The statement of objects and reasons of
the bill is relevant to be noticed. The statement of
objects and reasons as well as notes on clauses were
published in the Gazette of India extraordinary Part
II Section (2) on 08.04.1974. Notes of clauses with
regard to amendment of Rules 97 to 103 of Order XXI
of Civil Procedure Code is contained in Clause 75
(sub-clause xxxiii), which is to the following
effect: -
“Sub-clause(xxxiii). – The general scheme
of rules 97 to 103 has been altered on the
lines of the amendments proposed to rules
58 to 63. The main feature is that
questions (including a question relating to
right, title or interest in the property)
arising between the parties to a proceeding
under rule 97 or rule 99 is to be
determined in execution proceeding itself
and not left to be decided by way of
separate suit. Rule 98 has been amplified
to cover cases of resistance, etc., by a
person acting under any instigation by the
judgment-debtor.”
11. In the present case, the Rule which has fallen
for interpretation is Rule 101 of Order XXI. What was
the Rule 101 prior to 1976 Amendment and subsequent
12
to 1976 amendment is relevant to be noticed to mark
the difference into legislative scheme.
12. Rule 101 prior to amendment contained marginal
note “Bona fide claimant to be restored to
possession” which Rule is as follows: -
“101. Where the Court is
satisfied that the
applicant was in
possession of the property
on his own account or on
account of some person
other than the judgmentdebtor,
it shall direct
that the applicant be put
into possession of the
property.”
Bona fide
claimant
to be
restored
to
possession
.
13. After the 1976 amendment both the marginal note
and Rule 101 was substantially changed. Rule 101
after 1976 Amendment is as follows: -
“Question
to be
determine
d
101. 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.”
14. The scope and ambit of Rule 101 prior to
amendment was entirely different as compared to Rule
101 as was brought into statute after 1976 amendment.
Under unamended Rule 101, a bonafide claimant had to
be restored to possession and by virtue of Rule 103,
Orders passed under Rule 101 was conclusive subject
to the result of the suit to be filed by any party
not being the judgment-debtor. Unamended Rule 103 was
as follows: -
“103. Any party not being a
judgment-debtor against whom an
order is made under rule 98,
rule 99, or rule 101 may
institute a suit to establish
the right which he claims to the
present possession of the
property; but, subject to the
result of such suit(if any), the
order shall be conclusive.”
Orders
conclusiv
e subject
to
regular
suit.
15. Rule 103 was also amended by 1976 amendment and
after the amendment, Rule 103 now is as follows: -
“Orders
to be
treated
103. Where any application has
been adjudicated upon under rule
98 or rule 100, the order made
14
as
decrees
.
thereon shall have the same
force and be subject to the same
conditions as to an appeal or
otherwise as if it were a
decree.”
16. There is a marked difference between Rule 101 as
it existed prior to amendment and as it now exists
after 1976 amendment. Earlier a person who was a bona
fide claimant and who satisfied that he was in
possession of the property on his own account or on
account of some other person then the judgment-debtor
could have been put in possession of the property on
an application under Rules 100 and 101, whereas now
after the amendment for putting back into possession
an applicant has not only to prove that he is in bona
fide possession rather he has to prove his right,
title or interest in the property. What was earlier
to be adjudicated in a suit under unamended Rule 103
is now to be adjudicated in Rule 101 itself, thus,
for being put in possession, an applicant has to
prove his right, title or interest in the property
and by simply proving that he was in possession prior
to the date he was dispossessed by decree-holder, he
is not entitled to be put back in possession.
17. In view of the statutory scheme which is
delineated by amended provisions of Rule 101, the
submissions of the counsel of the respondent that by
simply proving the fact that he was in possession
prior to he being dispossessed by decree-holder, he
should be put back in possession cannot be accepted.
The respondent-applicant had to prove his right,
title or interest in the property to be put back in
possession.
18. Now, for ready reference, Order XXI Rules 99, 100
and 101 are quoted below:-
“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 possession of such property or,
where such 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.
100. Order to be passed upon application
complaining of dispossession— Upon the
determination of the questions referred to
in rule 101, the Court shall, in accordance
with such determination,—
(a) make an order allowing the
application and directing that
the applicant be put into the
possession of the property or
dismissing the application; or
(b) pass such other order as, in the
circumstances of the case, it may
deem fit.
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.”
19. Whether in the facts of the present case,
Executing Court was required to determine questions
relating to right, title or interest in the property
or on mere finding that respondent No.1 was in
possession prior to he being dispossessed from the
property, he was entitled to put back into possession
? The Executing Court while determining the Misc.
application of the respondent No.1 has considered the
entire case of the respondent No.1 including the
documents filed by him for proving his possession.
The Executing Court noticed that respondent No.1 has
already filed a Suit No.211 of 1990 for declaration
of his title on the basis of adverse possession.
After considering the oral evidence and documentary
evidence, the Executing Court returned the findings
that respondent No.1 had failed to establish his case
that he has clear right, title and interest over the
suit property by way of adverse possession.
Following observations of the trial court may be
referred to in this context:-
“Next we have to examine the other aspect
of the matter, i.e., we are required to
determine all the questions including
question relating to right, title and
interest of the suit property which arises
under application u/R 97 or 99. We have
initially observed that there is a title
suit pending where the question about the
acquisition of title by the petitioner by
way of adverse possession is the subject
matter. It is to be carefully thought
whether at this stage it will be proper to
pass any observation on a matter which is
already pending before a competent Court of
law. We cannot ignore that title suit is
yet to be decided conclusively and pending
the suit we should not pass any comment
about petitioner’s claim.
Be that as it may, let us find out as to
how far the petitioner has been able to
establish his assertion that he has
acquired right, title and interest over the
suit property by way of adverse possession.
Therefore, we find from the evidence of PW1
that it is not wholly trustworthy and from
his oral evidence it is very difficult to
appreciate the petitioner’s case. It is
not clear as to how and on what date
Tarapada Dutta, the admitted owner was
disposed or in what manner Iqbal Singh came
to possess and occupy the suit property.
The elements for asserting right by adverse
possession have not at all been proved in
this case. Rather, there has been no
attempt by the petitioner to establish his
acquisition of title by way of adverse
possession.
In a proceeding u/s 21 Rules 98 and 99 it
is even more essential to establish his
right so as to seek relief. The whole
burden was upon the PW1 but he failed
miserably.”
20. Thus, the trial court returned categorical
finding that appellant has failed to prove his right,
title and interest and his application deserves to be
rejected. The High Court in appeal filed by
respondent No.1 without upsetting the finding of the
Executing Court that respondent No.1 failed to prove
his title by adverse possession allowed the appeal by
making following observations:-
“Be that as it may, the question whether
the appellant has obtained any title in
respect of the suit property by way of
adverse possession or not is not being
decided by this Court and thus this Court
is not going into the said question. But
the fact remains that the appellant was
very much in possession of the suit
property when the respondent No.1 took
delivery of possession of the suit property
through the Court’s bailiff without any
proceeding being initiated against the
appellant and without the appellant being
served with any prior notice with regard to
such delivery of possession…………..”
21. The amendments made in Order XXI Rules 97 to 103
by Code of Civil Procedure (Amendment) Act, 1976 came
to be considered by this Court in Shreenath and
Another Vs. Rajesh and Others, (1998) 4 SCC 543.
This Court while noticing the question, which had
arisen in the above case has made following
observations in paragraph Nos. 2, 3 and 5:-
“2. The courts within their limitation have
been interpreting the procedural laws so as
to conclude all possible disputes
pertaining to the decretal property which
is within its fold in an execution
proceeding, i.e., including what may be
raised later by way of another bout of
litigations through a fresh suit. Similarly
legislatures equally are also endeavouring
by amendments to achieve the same
objective. The present case is one in this
regard. Keeping this in view, we now
proceed to examine the present case.
3. In interpreting any procedural law,
where more than one interpretation is
possible, the one which curtails the
procedure without eluding justice is to be
adopted. The procedural law is always
subservient to and is in aid of justice.
Any interpretation which eludes or
frustrates the recipient of justice is not
to be followed.
5. The question raised is, whether the
third party in possession of a property
claiming independent right as a tenant not
party to a decree under execution could
resist such decree by seeking adjudication
of his objections under Order 21 Rule 97 of
the Civil Procedure Code?”
22. In the above case, respondent No.1 filed a suit
for redemption of mortgage against respondent No.2,
which was decreed. The decree directed the delivery
of vacant possession of the mortgaged property to the
applicant (respondent No. 1). In the said suit, the
appellants were not parties. The appellant, who
claimed to be in possession, obstructed the execution
of the decree on the ground that they were the
tenants in the shop from much before the execution of
the mortgage. In the above context, this Court
noticed the amendments made in Order XXI. In
paragraph Nos. 11, 13 and 16, following was laid
down:-
“11. So, under Order 21 Rule 101 all
disputes between the decree-holder and any
such person is to be adjudicated by the
executing court. A party is not thrown out
to relegate itself to the long-drawn-out
arduous procedure of a fresh suit. This is
to salvage the possible hardship both to
the decree-holder and the other person
claiming title on their own right to get it
adjudicated in the very execution
proceedings. We find that Order 21 Rule 35
deals with cases of delivery of possession
of an immovable property to the decreeholder
by delivery of actual physical
possession and by removing any person in
possession who is bound by a decree, while
under Order 21 Rule 36 only symbolic
possession is given where the tenant is in
actual possession. Order 21 Rule 97, as
aforesaid, conceives of cases where
delivery of possession to the decree-holder
or purchaser is resisted by any person.
“Any person”, as aforesaid, is wide enough
to include even a person not bound by a
decree or claiming right in the property on
his own including that of a tenant
including a stranger.
13. So far sub-clause (1) of Rule 97 the
provision is the same but after the 1976
Amendment all disputes relating to the
property made under Rules 97 and 99 are to
be adjudicated under Rule 101, while under
unamended provision under sub-clause (2) of
Rule 97, the executing court issues summons
to any such person obstructing possession
over the decretal property. After
investigation under Rule 98 the court puts
back a decree-holder in possession where
the court finds obstruction was occasioned
without any just cause, while under Rule 99
where obstruction was by a person claiming
in good faith to be in possession of the
property on his own right, the court has to
dismiss the decree-holder’s application.
Thus even prior to 1976, right of any
person claiming right on his own or as a
tenant, not party to the suit, such
person’s right has to be adjudicated under
Rule 99 and he need not fall back to file a
separate suit. By this, he is saved from a
long litigation. So a tenant or any person
claiming a right in the property on the
own, if resists delivery of possession to
the decree-holder, the dispute and his
claim has to be decided after the 1976
Amendment under Rule 97 read with Rule 101
and prior to the amendment under Rule 97
read with Rule 99. However, under the old
law, in case order is passed against the
person resisting possession under Rule 97
read with Rule 99 then by virtue of Rule
103, as it then was, he was to file a suit
to establish his right. But now after the
amendment one need not file suit even in
such cases as all disputes are to be
settled by the executing court itself
finally under Rule 101.
16. In Noorduddin v. Dr K.L. Anand, (1995)
1 SCC 242 it is held: (SCC p. 249, para 8)
“8. Thus, the scheme of the Code
clearly adumbrates that when an
application has been made under Order
21 Rule 97, 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 decreeholder
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. In other words, no
other proceedings were allowed to be
taken. It has to be remembered that
preceding Civil Procedure Code
Amendment Act, 1976, right of suit
under Order 21 Rule 103 of 1908 Code
was available which has been now
taken away. By necessary implication,
the legislature relegated the parties
to an adjudication of right, title or
interest in the immovable property
under execution and finality has been
accorded to it. Thus, the scheme of
the Code appears to be to put an end
to the protraction of the execution
and to shorten the litigation between
the parties or persons claiming
right, title and interest in the
immovable property in execution.”
23. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and
Another, (1998) 3 SCC 723, a Three-Judge Bench had
occasion to consider provisions of Order XXI Rules
97, 101, 102 and 103 as amended by Code of Civil
Procedure (Amendment) Act, 1976. In paragraph Nos. 9
and 10, following was laid down:-
“9. At the outset, we may observe that it
is difficult to agree with the High Court
that resistance or obstructions made by a
third party to the decree of execution
cannot be gone into under Order 21 Rule 97
of the Code. Rules 97 to 106 in Order 21 of
the Code are subsumed under the caption
“Resistance to delivery of possession to
decree-holder or purchaser”. Those rules
are intended to deal with every sort of
resistance or obstructions offered by any
person. Rule 97 specifically provides that
when the holder of a decree for possession
of immovable property is resisted or
obstructed by “any person” in obtaining
possession of the property such decreeholder
has to make an application
complaining of the resistance or
obstruction. Sub-rule (2) makes it
incumbent on the court to proceed to
adjudicate upon such complaint in
accordance with the procedure laid down.
10. It is true that Rule 99 of Order 21 is
not available to any person until he is
dispossessed of immovable property by the
decree-holder. Rule 101 stipulates that all
questions “arising between the parties to a
proceeding on an application under Rule 97
or Rule 99” shall be determined by the
executing court, if such questions are
“relevant to the adjudication of the
application”. A third party to the decree
who offers resistance would thus fall
within the ambit of Rule 101 if an
adjudication is warranted as a consequence
of the resistance or obstruction made by
him to the execution of the decree. No
doubt if the resistance was made by a
transferee pendente lite of the judgmentdebtor,
the scope of the adjudication would
be shrunk to the limited question whether
he is such a transferee and on a finding in
the affirmative regarding that point the
execution court has to hold that he has no
right to resist in view of the clear
language contained in Rule 102. Exclusion
of such a transferee from raising further
contentions is based on the salutary
principle adumbrated in Section 52 of the
Transfer of Property Act.
24. To the same effect is the judgment of this Court
in Ghasi Ram and Others Vs. Chait Ram Saini and
Others, (1998) 6 SCC 200. Another judgment, which
need to be noticed is judgment of this Court in Ashan
Devi and Another Vs. Phulwasi Devi and Others, (2003)
12 SCC 219. In the above case, a decree of specific
performance of contract was obtained on 08.11.1990.
Decree was put in execution by the decree-holder, in
pursuance of which execution, possession was also
obtained on 05.09.1996 through Court. A petition was
filed under Order XXI Rule 99 before the Executing
Court claiming that the objector being not party to
the suit for specific performance, they cannot be
dispossessed in execution of the decree. It was
contended by the objector that they have purchased
the property by sale deed in the year 1985 and decree
in the absence of the Objectors who were necessary
parties to the suit, is not executable. The
application was allowed by the Executing Court and
objectors were put in possession, against which
order, an appeal was filed in the High Court. High
Court had allowed the appeal holding that the
Objectors were not actually and physically
dispossessed, the application under Order XXI Rule 99
of the Code was not maintainable and the executing
court could not have decided the competing claims of
the parties to the property in the course of
execution proceedings. The matter was taken to this
Court, where this Court after noticing the relevant
provisions have interpreted the provisions of Order
XXI Rules 99 and 101. This Court held that the
purpose of amendment brought by Code of Civil
Procedure (Amendment) Act, 1976 was to enable the
third parties to seek adjudication of their rights in
execution proceedings with a view to curtail the
prolongation of litigation. Following was laid down
in paragraph Nos. 25, 28, 29 and 30:-
“25. In interpreting the provisions of
Order 21 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 21 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 v. Ch.
Parbhu Ram, (1985) 1 SCC 61.
28. In view of the discussion aforesaid, in
our opinion, the executing court was well
within law in recording evidence and
adjudicating the claim of the third party.
The executing court rightly rejected the
preliminary objection to the
maintainability of application of the
objectors under Order 21 Rule 99 of the
Code and decided the other issues on merits
of their claims arising between the decreeholder
and the objectors.
29. The High Court in appeal mainly
concentrated its decision on the question
of tenability of application under Order 21
Rule 99 at the instance of the objectors
and having rejected the said application
did not in detail deal with other issues on
merits arising between the decree-holder
and the objectors. The issues on merits
which were liable to be re-examined by the
appellate court, as the first court of
facts and law, were:
(1) Whether the decree-holder at the
time of institution of suit had
knowledge of the execution of
the registered sale deeds in
favour of the objectors and yet
they deliberately avoided to
make them as parties to the suit
and thus obtained in collusion
with the vendors an ex parte
decree of specific performance
of the contract.
OR
(2) Whether the objectors had full
knowledge of existence of prior
agreement of sale executed by
the vendors in favour of the
decree-holder and despite such
knowledge they purchased the
suit property to frustrate the
agreement existing in favour of
the decree-holder.
30. As the appellate court, having rejected
the objectors’ application under Order 21
Rule 99, has not in greater detail gone
into the contested issues on merits, it is
necessary to set aside the impugned order
of the High Court and remand the case to it
for decision of the appeal afresh in
accordance with law.”
25. The above judgment of this court clearly lays
down that all issues between the parties in
application under Order XXI Rules 99, 100 and 101
need to be examined by trial court and decided.
26. The use of the words “all questions (including
the 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
…………” has to be given meaning and full play. It is
also relevant to note that prior to Amendment, 1976,
under Rule 103, the aggrieved party could have
brought a suit for determination of rights between
them but by Amendment, 1976, Rule 103 has been
amended to the following effect:-
“103. Orders to be treated as decrees.--
Where any application has been adjudicated
upon under rule 98 or rule 100, the order
made thereon shall have the same force and
be subject to the same conditions as to an
appeal or otherwise as if it were a
decree.”
27. The purpose of amendment under Rule 103 is also
that any adjudication made under Rule 101 shall have
same force and be subject to the same conditions as
to an appeal or otherwise as if it was a decree.
Rule 101, thus, affords an opportunity to get all
issues relating to right, title or interest in the
property to be determined. When the respondent No.1
filed his application claiming to be put back into
possession, it was obliged to establish its right,
title or interest in the property without which his
application could not have been allowed. The
Executing Court has considered the application of
respondent No.1 in right perspective and has clearly
held that respondent No.1 failed to prove his title
by adverse possession, hence application deserves to
be rejected.
28. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100
and 101, the Court is not to decide such question.
Without determination of right, title or interest,
the application could not have been allowed. We
having already extracted the observations of the High
Court, where it clearly held that the title in
respect of the property by way of adverse possession
need not be gone into in the appeal before it. The
above observation of the High Court was erroneous. In
the proceeding under Order XXI Rules 99, 100 and 101,
right, title or interest has to be determined and
without establishing right, title or interest, the
respondent No.1 cannot claim that he should be put
back into possession. We do not accept the
submission of the learned counsel for the respondent
that on mere fact that respondent No.1 was in
possession of the premises prior to being
dispossessed, they should be put back into
possession. For putting back into possession, the
respondent No.1 was obliged to establish his title to
the property by adverse possession, without which, he
could not have asked the Court to put him back into
possession. The High Court clearly erred in allowing
the appeal and the Executing Court has rightly
rejected the application filed by respondent No.1.
We may further notice that suit No.211 of 1990 filed
by respondent No.1 seeking declaration of title to
the property by adverse possession has been
subsequently dismissed by decree on 16.03.2009 and no
steps have been taken for restoration of the suit.
29. We do not find any error in the order passed by
the Executing Court and the High Court committed
error in allowing the appeal, directing the
respondent No.1 to be put back into possession. In
view of the foregoing discussions, we allow this
appeal and set aside the judgment of the High Court
dated 15.12.2009 and restore the order of the
Executing Court dated 10.08.2004. Parties shall bear
their own costs.
......................J.
( ASHOK BHUSHAN )
......................J.
( NAVIN SINHA )
New Delhi,
July 29, 2019.
Print Page
filed his application claiming to be put back into
possession, it was obliged to establish its right,
title or interest in the property without which his
application could not have been allowed. The
Executing Court has considered the application of
respondent No.1 in right perspective and has clearly
held that respondent No.1 failed to prove his title
by adverse possession, hence application deserves to
be rejected.
28. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100
and 101, the Court is not to decide such question.
Without determination of right, title or interest,
the application could not have been allowed. We
having already extracted the observations of the High
Court, where it clearly held that the title in
respect of the property by way of adverse possession
need not be gone into in the appeal before it. The
above observation of the High Court was erroneous. In
the proceeding under Order XXI Rules 99, 100 and 101,
right, title or interest has to be determined and
without establishing right, title or interest, the
respondent No.1 cannot claim that he should be put
back into possession. We do not accept the
submission of the learned counsel for the respondent
that on mere fact that respondent No.1 was in
possession of the premises prior to being
dispossessed, they should be put back into
possession. For putting back into possession, the
respondent No.1 was obliged to establish his title to
the property by adverse possession, without which, he
could not have asked the Court to put him back into
possession. The High Court clearly erred in allowing
the appeal and the Executing Court has rightly
rejected the application filed by respondent No.1.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5632 OF 2019
SHAMSHER SINGH Vs LT. COL. NAHAR SINGH
ASHOK BHUSHAN, J.
Dated:July 29, 2019.
This appeal has been filed against the Division
Bench Judgment of Calcutta High Court in FMA No.720
of 2005, by which the appeal filed by the respondent
No.1 has been allowed setting aside the order of
Executing Court dated 10.08.2004 rejecting the
application filed by respondent No.1 under Order XXI
Rules 98, 99 and 100 of the Code of Civil Procedure
(hereinafter referred to as “CPC”).
2. Brief facts of the case giving rise to this
appeal are:-
1
2.1 One Tarapada Dutta owned premises No.15,
Sahanagar Road, P.S. Tollygunge, Calcutta.
An agreement for sale was executed by Anadi
Dutt, who claimed to be son of Tarapada Dutta
in favour of Rajvindar Singh in respect of 4
Kh. 4 Ch. and 00 sft. of land and structures
at premises No.15. Another agreement for
sale was entered by Anadi Dutt with Shamsher
Singh in respect of 4 Kh. 6 Ch. and 6 Sft. of
land and structures of premises No.15.
2.2 The respondent had filed a T.S. No.211 of
1990 before the 3rd Munsif at Alipore praying
for decree of declaration of his right with
regard to premises in question on the basis
of adverse possession.
2.3 Anadi Dutt having not executed the sale deed
in pursuance of agreement for sale dated
07.05.1990, two title suits being Suit No.50
of 1994 and 51 of 1994 were filed by
Rajvindar Singh and Shamsher Singh, which
were decreed ex-parte on 20.12.1994. In
pursuance of decree of the Court, two
separate Deeds of Conveyance were executed in
favour of Dayal Singh (Nominee of Rajvindar
Singh) and in favour of Shamsher Singh.
Decree holders filed two execution cases vide
Execution no. T.Ex. No.09 of 1995 and T.Ex.
No.10 of 1995 seeking delivery of possession
of the suit property. First Time Court
Bailiff could not succeed in delivering
possession, however, subsequently the Court
Bailiff with the help of police delivered
Khas vacant possession of the suit premises
to the Decree Holder on 12.04.1996.
2.4 After lapse of 30 days, respondent No.1 filed
two Misc. cases Nos. 10 of 1996 and 11 of
1996 against Rajvindar Singh, Shamsher Singh,
Dayal Singh and Asis Dutt under Order XXI
Rules 98, 99 and 100 CPC before the 6th
Assistant District Judge, Alipore. In the
said two Misc. cases, respondent No.1 claimed
that his father Sardar Iqbal Singh was the
occupier and was running his business under
the name and style as Public Transport
Business in the suit premises and after his
death, respondent No.1 has been running a
business under the name and style of Ex-
Service United Coal Enterprise (P) Ltd. In
the above said Misc. Case No.10 of 1996, the
respondent No.1 claimed that Anadi Dutt was
not the son of Tarapada and it was Asis Kumar
Dutt, who was the only son, owner and only
legal heir of Late Tarapada. It was also
claimed that a T.S. No.211 of 1990 was
pending before 3rd Munsiff at Alipore filed by
respondent No.1, in which he claimed right
and title of the suit premises on the basis
of adverse possession. It was further claimed
that Shamsher Singh, Rajvindar Singh and
Dayal Singh had fraudulently obtained decree
in collusion with Anadi Dutt and has evicted
the respondent No.1 from the suit property.
2.5 In Misc. proceeding application, although,
the respondent No.1 has impleaded Asis Kumar
Dutt but he neither contested the Misc.
application nor challenged the title of Anadi
Dutt, against whom an ex-parte decree was
passed. On 21.01.1999, Dayal Singh also got
a deed of conveyance executed in his favour
by Asis Kumar Dutt, alleged true legal heir
of the Late Tarapada Dutta. Dayal Singh got
his name mutated in Kolkata Municipal
Corporation.
2.6 The Executing Court by order dated 10.08.2004
rejected Misc. Case No.10 of 1996 and Misc.
Case No.11 of 1996 filed by respondent No.1.
Trial court held that respondent No.1 failed
to prove that he has acquired title by way of
adverse possession. Against the order dated
10.08.2004 rejecting the Misc. applications
filed by respondent No.1, first appeal, FMA
No. 720 of 2005 was filed by respondent No.1
in the Calcutta High Court, which appeal has
been allowed by Calcutta High Court by the
impugned judgment dated 15.12.2009. The High
Court by impugned judgment has set aside the
order of the Executing Court dated 10.08.2004
disposing the application filed by respondent
No.1 under Order XXI Rules 98, 99 and 100
with a direction that appellant (respondent
No.1 in this appeal) should be put back into
possession of the suit property. Aggrieved
by the judgment of the High Court, this
appeal has been filed.
3. We have heard Shri Debal Banerji, learned senior
counsel for the appellant and learned counsel
appearing for the respondent.
4. Shri Debal Banerji, learned senior counsel
appearing for the appellant submits that Executing
Court had rightly rejected the application of
respondent No.1 filed under Order XXI Rules 98, 99
and 100 CPC, he having failed to prove his title over
suit premises. It is submitted that the appellants
were put in possession of the property in execution
of decree of the Court. The Executing Court having
held that respondent No.1 failed to prove his title
by adverse possession, the application was rightly
rejected. It is further submitted that T.S.No.211 of
1990 filed by respondent No.1 claiming for
declaration of the title on the basis of adverse
possession has been subsequently dismissed on
16.03.2009. It is submitted that High Court
committed error in allowing the appeal filed by
respondent No.1 without any valid ground. It is
submitted that High Court has in its impugned
judgment erred in taking the view that the question
whether the appellant has obtained any title in
respect of the suit property by way of adverse
possession or not, need not be gone into in the
appeal. It is submitted that decree passed by Civil
Court in favour of the appellant was never challenged
by anyone including the respondent No.1 or Asis Kumar
Dutt, who is claimed by respondent No.1 as son of
Tarapada Dutta. Respondent No.1 having failed to
prove his title to the property, he was not entitled
to put back in the possession and High court
committed error in allowing the appeal of respondent
No.1.
5. Learned counsel for the respondent refuting the
submissions of the learned counsel for the appellant
contends that the fact is that respondent No.1 was in
long possession of the premises and had acquired
possessory title. It is submitted that several
documents were filed by the respondent No.1 before
the Executing Court to prove his possession. It
having been found that respondent No.1 was in
possession prior to he being dispossessed in
execution of the decree, he was entitled to be put
back into possession. It is submitted that it was
not necessary for respondent No.1 to establish his
title to the land in dispute for purposes of Order
XXI Rules 98, 99 and 100 CPC. It was sufficient for
the respondent No.1 to prove that he was in
possession prior to his dis-possession, which was
sufficient for putting him back into possession. He
submitted that the High Court did not commit any
error in putting back the appellants into possession
by allowing the appeal. He submits that the
appellants have obtained a fraudulent decree against
a person Anadi Dutt, claiming to be son of Late
Tarapada Dutta, whereas the real son is Asis Kumar
Dutt. The respondent No.1 has been dispossessed on
the basis of a fraudulent ex-parte decree, on the
strength of agreement of sale executed by a person,
who has no title to the property.
6. We have considered the submissions of the learned
counsel for the parties and have perused the records.
7. There is no dispute between the parties that the
premises in question was originally owned by one
Tarapada Dutta. The case of the respondent No.1 is
that his father Late Iqbal Singh has trespassed into
the premises No.15, Sahanagar Road and after his
death in 1965, it was respondent No.1, who was in
occupation and possession of the premises. In
pursuance of decree for specific performance of
contract passed in T.S. No. 50 of 1994 and T.S. No.51
of 1994, in execution proceedings, the decree holders
were put in possession on 12.04.1996. At the time of
taking possession, one Shri Gopal Adak was found
present in the premises, who had claimed to be
employee of respondent No.1. Respondent No.1 had
filed a suit for declaration of the title on the
basis of adverse possession being T.S. No. 211 of
1990. Copy of the plaint of the suit filed in the
Court of 3rd Munsiff, 24 Parganas is brought on record
as Annexure P-1. In the suit, following reliefs had
been claimed by the respondent No.1, who was
plaintiff in the suit:-
“a) A declaratory decree that the plaintiff
has absolute possessory title in the
suit premises No.15, Shahanagar Road,
Calcutta under P.S. Tollygunge as fully
described in the Schedule ‘A’ of the
plaint since the year 1965 to the
exclusion of all other person or
persons.
b) Decree for permanent injunction
restraining the defendant and/or any
person on its behalf and agent, its men,
for interfering with the plaintiff’s
possession and occupation of the suit
premises fully described in Schedule ‘A’
of the plaint in any manner whatsoever.
c) Temporary injunction.
d) Ad-interim injunction in terms of prayer
(c) above.
e) Commission.
f) Receiver.
g) Costs.”
8. In the application, which was filed by respondent
No.1 for putting him back into possession under Order
XXI Rules 98, 99 and 100 CPC, the respondent No.1 has
claimed his possession since 1965 after death of his
father. The respondent No.1 in his application has
also relied on filing of suit for declaration of his
title being Suit No.211 of 1990. There is no dispute
between the parties that in execution of decree of
specific performance, the appellants were put in
possession and respondent No.1 aggrieved by his
dispossession had filed an application under Order
XXI Rules 98, 99 and 100.
9. Before we proceed further, it is necessary to
look into the provisions of Order XXI Rules 98, 99
and 100, as it existed at the relevant time. It is
to be noted that by Code of Civil Procedure
(Amendment) Act, 1976, there has been amendment in
Order XXI Rules 97 to 103. Order XXI Rule 97 deals
with the resistance or obstruction to possession of
immovable property, with which we are not concerned.
Present is a case where the respondent No.1 alleged
his dispossession by decree holders.
10. Order XXI Rules 97 to 103 was substantially
amended by Code of Civil Procedure Amendment Act,
1976, Act No.104 of 1976 w.e.f. 01.02.1977. The bill
11
further to amend the code of Civil Procedure of 1908
was introduced in Parliament as Bill No.27 of 1974 on
08.04.1974. The statement of objects and reasons of
the bill is relevant to be noticed. The statement of
objects and reasons as well as notes on clauses were
published in the Gazette of India extraordinary Part
II Section (2) on 08.04.1974. Notes of clauses with
regard to amendment of Rules 97 to 103 of Order XXI
of Civil Procedure Code is contained in Clause 75
(sub-clause xxxiii), which is to the following
effect: -
“Sub-clause(xxxiii). – The general scheme
of rules 97 to 103 has been altered on the
lines of the amendments proposed to rules
58 to 63. The main feature is that
questions (including a question relating to
right, title or interest in the property)
arising between the parties to a proceeding
under rule 97 or rule 99 is to be
determined in execution proceeding itself
and not left to be decided by way of
separate suit. Rule 98 has been amplified
to cover cases of resistance, etc., by a
person acting under any instigation by the
judgment-debtor.”
11. In the present case, the Rule which has fallen
for interpretation is Rule 101 of Order XXI. What was
the Rule 101 prior to 1976 Amendment and subsequent
12
to 1976 amendment is relevant to be noticed to mark
the difference into legislative scheme.
12. Rule 101 prior to amendment contained marginal
note “Bona fide claimant to be restored to
possession” which Rule is as follows: -
“101. Where the Court is
satisfied that the
applicant was in
possession of the property
on his own account or on
account of some person
other than the judgmentdebtor,
it shall direct
that the applicant be put
into possession of the
property.”
Bona fide
claimant
to be
restored
to
possession
.
13. After the 1976 amendment both the marginal note
and Rule 101 was substantially changed. Rule 101
after 1976 Amendment is as follows: -
“Question
to be
determine
d
101. 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.”
14. The scope and ambit of Rule 101 prior to
amendment was entirely different as compared to Rule
101 as was brought into statute after 1976 amendment.
Under unamended Rule 101, a bonafide claimant had to
be restored to possession and by virtue of Rule 103,
Orders passed under Rule 101 was conclusive subject
to the result of the suit to be filed by any party
not being the judgment-debtor. Unamended Rule 103 was
as follows: -
“103. Any party not being a
judgment-debtor against whom an
order is made under rule 98,
rule 99, or rule 101 may
institute a suit to establish
the right which he claims to the
present possession of the
property; but, subject to the
result of such suit(if any), the
order shall be conclusive.”
Orders
conclusiv
e subject
to
regular
suit.
15. Rule 103 was also amended by 1976 amendment and
after the amendment, Rule 103 now is as follows: -
“Orders
to be
treated
103. Where any application has
been adjudicated upon under rule
98 or rule 100, the order made
14
as
decrees
.
thereon shall have the same
force and be subject to the same
conditions as to an appeal or
otherwise as if it were a
decree.”
16. There is a marked difference between Rule 101 as
it existed prior to amendment and as it now exists
after 1976 amendment. Earlier a person who was a bona
fide claimant and who satisfied that he was in
possession of the property on his own account or on
account of some other person then the judgment-debtor
could have been put in possession of the property on
an application under Rules 100 and 101, whereas now
after the amendment for putting back into possession
an applicant has not only to prove that he is in bona
fide possession rather he has to prove his right,
title or interest in the property. What was earlier
to be adjudicated in a suit under unamended Rule 103
is now to be adjudicated in Rule 101 itself, thus,
for being put in possession, an applicant has to
prove his right, title or interest in the property
and by simply proving that he was in possession prior
to the date he was dispossessed by decree-holder, he
is not entitled to be put back in possession.
17. In view of the statutory scheme which is
delineated by amended provisions of Rule 101, the
submissions of the counsel of the respondent that by
simply proving the fact that he was in possession
prior to he being dispossessed by decree-holder, he
should be put back in possession cannot be accepted.
The respondent-applicant had to prove his right,
title or interest in the property to be put back in
possession.
18. Now, for ready reference, Order XXI Rules 99, 100
and 101 are quoted below:-
“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 possession of such property or,
where such 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.
100. Order to be passed upon application
complaining of dispossession— Upon the
determination of the questions referred to
in rule 101, the Court shall, in accordance
with such determination,—
(a) make an order allowing the
application and directing that
the applicant be put into the
possession of the property or
dismissing the application; or
(b) pass such other order as, in the
circumstances of the case, it may
deem fit.
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.”
19. Whether in the facts of the present case,
Executing Court was required to determine questions
relating to right, title or interest in the property
or on mere finding that respondent No.1 was in
possession prior to he being dispossessed from the
property, he was entitled to put back into possession
? The Executing Court while determining the Misc.
application of the respondent No.1 has considered the
entire case of the respondent No.1 including the
documents filed by him for proving his possession.
The Executing Court noticed that respondent No.1 has
already filed a Suit No.211 of 1990 for declaration
of his title on the basis of adverse possession.
After considering the oral evidence and documentary
evidence, the Executing Court returned the findings
that respondent No.1 had failed to establish his case
that he has clear right, title and interest over the
suit property by way of adverse possession.
Following observations of the trial court may be
referred to in this context:-
“Next we have to examine the other aspect
of the matter, i.e., we are required to
determine all the questions including
question relating to right, title and
interest of the suit property which arises
under application u/R 97 or 99. We have
initially observed that there is a title
suit pending where the question about the
acquisition of title by the petitioner by
way of adverse possession is the subject
matter. It is to be carefully thought
whether at this stage it will be proper to
pass any observation on a matter which is
already pending before a competent Court of
law. We cannot ignore that title suit is
yet to be decided conclusively and pending
the suit we should not pass any comment
about petitioner’s claim.
Be that as it may, let us find out as to
how far the petitioner has been able to
establish his assertion that he has
acquired right, title and interest over the
suit property by way of adverse possession.
Therefore, we find from the evidence of PW1
that it is not wholly trustworthy and from
his oral evidence it is very difficult to
appreciate the petitioner’s case. It is
not clear as to how and on what date
Tarapada Dutta, the admitted owner was
disposed or in what manner Iqbal Singh came
to possess and occupy the suit property.
The elements for asserting right by adverse
possession have not at all been proved in
this case. Rather, there has been no
attempt by the petitioner to establish his
acquisition of title by way of adverse
possession.
In a proceeding u/s 21 Rules 98 and 99 it
is even more essential to establish his
right so as to seek relief. The whole
burden was upon the PW1 but he failed
miserably.”
20. Thus, the trial court returned categorical
finding that appellant has failed to prove his right,
title and interest and his application deserves to be
rejected. The High Court in appeal filed by
respondent No.1 without upsetting the finding of the
Executing Court that respondent No.1 failed to prove
his title by adverse possession allowed the appeal by
making following observations:-
“Be that as it may, the question whether
the appellant has obtained any title in
respect of the suit property by way of
adverse possession or not is not being
decided by this Court and thus this Court
is not going into the said question. But
the fact remains that the appellant was
very much in possession of the suit
property when the respondent No.1 took
delivery of possession of the suit property
through the Court’s bailiff without any
proceeding being initiated against the
appellant and without the appellant being
served with any prior notice with regard to
such delivery of possession…………..”
21. The amendments made in Order XXI Rules 97 to 103
by Code of Civil Procedure (Amendment) Act, 1976 came
to be considered by this Court in Shreenath and
Another Vs. Rajesh and Others, (1998) 4 SCC 543.
This Court while noticing the question, which had
arisen in the above case has made following
observations in paragraph Nos. 2, 3 and 5:-
“2. The courts within their limitation have
been interpreting the procedural laws so as
to conclude all possible disputes
pertaining to the decretal property which
is within its fold in an execution
proceeding, i.e., including what may be
raised later by way of another bout of
litigations through a fresh suit. Similarly
legislatures equally are also endeavouring
by amendments to achieve the same
objective. The present case is one in this
regard. Keeping this in view, we now
proceed to examine the present case.
3. In interpreting any procedural law,
where more than one interpretation is
possible, the one which curtails the
procedure without eluding justice is to be
adopted. The procedural law is always
subservient to and is in aid of justice.
Any interpretation which eludes or
frustrates the recipient of justice is not
to be followed.
5. The question raised is, whether the
third party in possession of a property
claiming independent right as a tenant not
party to a decree under execution could
resist such decree by seeking adjudication
of his objections under Order 21 Rule 97 of
the Civil Procedure Code?”
22. In the above case, respondent No.1 filed a suit
for redemption of mortgage against respondent No.2,
which was decreed. The decree directed the delivery
of vacant possession of the mortgaged property to the
applicant (respondent No. 1). In the said suit, the
appellants were not parties. The appellant, who
claimed to be in possession, obstructed the execution
of the decree on the ground that they were the
tenants in the shop from much before the execution of
the mortgage. In the above context, this Court
noticed the amendments made in Order XXI. In
paragraph Nos. 11, 13 and 16, following was laid
down:-
“11. So, under Order 21 Rule 101 all
disputes between the decree-holder and any
such person is to be adjudicated by the
executing court. A party is not thrown out
to relegate itself to the long-drawn-out
arduous procedure of a fresh suit. This is
to salvage the possible hardship both to
the decree-holder and the other person
claiming title on their own right to get it
adjudicated in the very execution
proceedings. We find that Order 21 Rule 35
deals with cases of delivery of possession
of an immovable property to the decreeholder
by delivery of actual physical
possession and by removing any person in
possession who is bound by a decree, while
under Order 21 Rule 36 only symbolic
possession is given where the tenant is in
actual possession. Order 21 Rule 97, as
aforesaid, conceives of cases where
delivery of possession to the decree-holder
or purchaser is resisted by any person.
“Any person”, as aforesaid, is wide enough
to include even a person not bound by a
decree or claiming right in the property on
his own including that of a tenant
including a stranger.
13. So far sub-clause (1) of Rule 97 the
provision is the same but after the 1976
Amendment all disputes relating to the
property made under Rules 97 and 99 are to
be adjudicated under Rule 101, while under
unamended provision under sub-clause (2) of
Rule 97, the executing court issues summons
to any such person obstructing possession
over the decretal property. After
investigation under Rule 98 the court puts
back a decree-holder in possession where
the court finds obstruction was occasioned
without any just cause, while under Rule 99
where obstruction was by a person claiming
in good faith to be in possession of the
property on his own right, the court has to
dismiss the decree-holder’s application.
Thus even prior to 1976, right of any
person claiming right on his own or as a
tenant, not party to the suit, such
person’s right has to be adjudicated under
Rule 99 and he need not fall back to file a
separate suit. By this, he is saved from a
long litigation. So a tenant or any person
claiming a right in the property on the
own, if resists delivery of possession to
the decree-holder, the dispute and his
claim has to be decided after the 1976
Amendment under Rule 97 read with Rule 101
and prior to the amendment under Rule 97
read with Rule 99. However, under the old
law, in case order is passed against the
person resisting possession under Rule 97
read with Rule 99 then by virtue of Rule
103, as it then was, he was to file a suit
to establish his right. But now after the
amendment one need not file suit even in
such cases as all disputes are to be
settled by the executing court itself
finally under Rule 101.
16. In Noorduddin v. Dr K.L. Anand, (1995)
1 SCC 242 it is held: (SCC p. 249, para 8)
“8. Thus, the scheme of the Code
clearly adumbrates that when an
application has been made under Order
21 Rule 97, 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 decreeholder
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. In other words, no
other proceedings were allowed to be
taken. It has to be remembered that
preceding Civil Procedure Code
Amendment Act, 1976, right of suit
under Order 21 Rule 103 of 1908 Code
was available which has been now
taken away. By necessary implication,
the legislature relegated the parties
to an adjudication of right, title or
interest in the immovable property
under execution and finality has been
accorded to it. Thus, the scheme of
the Code appears to be to put an end
to the protraction of the execution
and to shorten the litigation between
the parties or persons claiming
right, title and interest in the
immovable property in execution.”
23. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and
Another, (1998) 3 SCC 723, a Three-Judge Bench had
occasion to consider provisions of Order XXI Rules
97, 101, 102 and 103 as amended by Code of Civil
Procedure (Amendment) Act, 1976. In paragraph Nos. 9
and 10, following was laid down:-
“9. At the outset, we may observe that it
is difficult to agree with the High Court
that resistance or obstructions made by a
third party to the decree of execution
cannot be gone into under Order 21 Rule 97
of the Code. Rules 97 to 106 in Order 21 of
the Code are subsumed under the caption
“Resistance to delivery of possession to
decree-holder or purchaser”. Those rules
are intended to deal with every sort of
resistance or obstructions offered by any
person. Rule 97 specifically provides that
when the holder of a decree for possession
of immovable property is resisted or
obstructed by “any person” in obtaining
possession of the property such decreeholder
has to make an application
complaining of the resistance or
obstruction. Sub-rule (2) makes it
incumbent on the court to proceed to
adjudicate upon such complaint in
accordance with the procedure laid down.
10. It is true that Rule 99 of Order 21 is
not available to any person until he is
dispossessed of immovable property by the
decree-holder. Rule 101 stipulates that all
questions “arising between the parties to a
proceeding on an application under Rule 97
or Rule 99” shall be determined by the
executing court, if such questions are
“relevant to the adjudication of the
application”. A third party to the decree
who offers resistance would thus fall
within the ambit of Rule 101 if an
adjudication is warranted as a consequence
of the resistance or obstruction made by
him to the execution of the decree. No
doubt if the resistance was made by a
transferee pendente lite of the judgmentdebtor,
the scope of the adjudication would
be shrunk to the limited question whether
he is such a transferee and on a finding in
the affirmative regarding that point the
execution court has to hold that he has no
right to resist in view of the clear
language contained in Rule 102. Exclusion
of such a transferee from raising further
contentions is based on the salutary
principle adumbrated in Section 52 of the
Transfer of Property Act.
24. To the same effect is the judgment of this Court
in Ghasi Ram and Others Vs. Chait Ram Saini and
Others, (1998) 6 SCC 200. Another judgment, which
need to be noticed is judgment of this Court in Ashan
Devi and Another Vs. Phulwasi Devi and Others, (2003)
12 SCC 219. In the above case, a decree of specific
performance of contract was obtained on 08.11.1990.
Decree was put in execution by the decree-holder, in
pursuance of which execution, possession was also
obtained on 05.09.1996 through Court. A petition was
filed under Order XXI Rule 99 before the Executing
Court claiming that the objector being not party to
the suit for specific performance, they cannot be
dispossessed in execution of the decree. It was
contended by the objector that they have purchased
the property by sale deed in the year 1985 and decree
in the absence of the Objectors who were necessary
parties to the suit, is not executable. The
application was allowed by the Executing Court and
objectors were put in possession, against which
order, an appeal was filed in the High Court. High
Court had allowed the appeal holding that the
Objectors were not actually and physically
dispossessed, the application under Order XXI Rule 99
of the Code was not maintainable and the executing
court could not have decided the competing claims of
the parties to the property in the course of
execution proceedings. The matter was taken to this
Court, where this Court after noticing the relevant
provisions have interpreted the provisions of Order
XXI Rules 99 and 101. This Court held that the
purpose of amendment brought by Code of Civil
Procedure (Amendment) Act, 1976 was to enable the
third parties to seek adjudication of their rights in
execution proceedings with a view to curtail the
prolongation of litigation. Following was laid down
in paragraph Nos. 25, 28, 29 and 30:-
“25. In interpreting the provisions of
Order 21 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 21 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 v. Ch.
Parbhu Ram, (1985) 1 SCC 61.
28. In view of the discussion aforesaid, in
our opinion, the executing court was well
within law in recording evidence and
adjudicating the claim of the third party.
The executing court rightly rejected the
preliminary objection to the
maintainability of application of the
objectors under Order 21 Rule 99 of the
Code and decided the other issues on merits
of their claims arising between the decreeholder
and the objectors.
29. The High Court in appeal mainly
concentrated its decision on the question
of tenability of application under Order 21
Rule 99 at the instance of the objectors
and having rejected the said application
did not in detail deal with other issues on
merits arising between the decree-holder
and the objectors. The issues on merits
which were liable to be re-examined by the
appellate court, as the first court of
facts and law, were:
(1) Whether the decree-holder at the
time of institution of suit had
knowledge of the execution of
the registered sale deeds in
favour of the objectors and yet
they deliberately avoided to
make them as parties to the suit
and thus obtained in collusion
with the vendors an ex parte
decree of specific performance
of the contract.
OR
(2) Whether the objectors had full
knowledge of existence of prior
agreement of sale executed by
the vendors in favour of the
decree-holder and despite such
knowledge they purchased the
suit property to frustrate the
agreement existing in favour of
the decree-holder.
30. As the appellate court, having rejected
the objectors’ application under Order 21
Rule 99, has not in greater detail gone
into the contested issues on merits, it is
necessary to set aside the impugned order
of the High Court and remand the case to it
for decision of the appeal afresh in
accordance with law.”
25. The above judgment of this court clearly lays
down that all issues between the parties in
application under Order XXI Rules 99, 100 and 101
need to be examined by trial court and decided.
26. The use of the words “all questions (including
the 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
…………” has to be given meaning and full play. It is
also relevant to note that prior to Amendment, 1976,
under Rule 103, the aggrieved party could have
brought a suit for determination of rights between
them but by Amendment, 1976, Rule 103 has been
amended to the following effect:-
“103. Orders to be treated as decrees.--
Where any application has been adjudicated
upon under rule 98 or rule 100, the order
made thereon shall have the same force and
be subject to the same conditions as to an
appeal or otherwise as if it were a
decree.”
27. The purpose of amendment under Rule 103 is also
that any adjudication made under Rule 101 shall have
same force and be subject to the same conditions as
to an appeal or otherwise as if it was a decree.
Rule 101, thus, affords an opportunity to get all
issues relating to right, title or interest in the
property to be determined. When the respondent No.1
filed his application claiming to be put back into
possession, it was obliged to establish its right,
title or interest in the property without which his
application could not have been allowed. The
Executing Court has considered the application of
respondent No.1 in right perspective and has clearly
held that respondent No.1 failed to prove his title
by adverse possession, hence application deserves to
be rejected.
28. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100
and 101, the Court is not to decide such question.
Without determination of right, title or interest,
the application could not have been allowed. We
having already extracted the observations of the High
Court, where it clearly held that the title in
respect of the property by way of adverse possession
need not be gone into in the appeal before it. The
above observation of the High Court was erroneous. In
the proceeding under Order XXI Rules 99, 100 and 101,
right, title or interest has to be determined and
without establishing right, title or interest, the
respondent No.1 cannot claim that he should be put
back into possession. We do not accept the
submission of the learned counsel for the respondent
that on mere fact that respondent No.1 was in
possession of the premises prior to being
dispossessed, they should be put back into
possession. For putting back into possession, the
respondent No.1 was obliged to establish his title to
the property by adverse possession, without which, he
could not have asked the Court to put him back into
possession. The High Court clearly erred in allowing
the appeal and the Executing Court has rightly
rejected the application filed by respondent No.1.
We may further notice that suit No.211 of 1990 filed
by respondent No.1 seeking declaration of title to
the property by adverse possession has been
subsequently dismissed by decree on 16.03.2009 and no
steps have been taken for restoration of the suit.
29. We do not find any error in the order passed by
the Executing Court and the High Court committed
error in allowing the appeal, directing the
respondent No.1 to be put back into possession. In
view of the foregoing discussions, we allow this
appeal and set aside the judgment of the High Court
dated 15.12.2009 and restore the order of the
Executing Court dated 10.08.2004. Parties shall bear
their own costs.
......................J.
( ASHOK BHUSHAN )
......................J.
( NAVIN SINHA )
New Delhi,
July 29, 2019.
No comments:
Post a Comment