Alavi vs State Of Kerala on 11 April, 2014

[Cites 20, Cited by 4]

Kerala High Court

Alavi vs State Of Kerala on 11 April, 2014

Bench: P.Bhavadasan

       

  

  

 
 
                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                          THE HONOURABLE MR.JUSTICE P.BHAVADASAN

                  FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936

                                              Ex.SA.No. 27 of 2013
                                              -------------------------------
    AS NO. 53/2013 OF ADDITIONAL DISTRICT COURT - II, MANJERI IN EA 38/2011 IN
               EP 247/2010 IN OS 299/2003 OF THE MUNSIFF COURT, MANJERI.
                                                     ----------------

APPELLANT/APPELLANT/CLAIM PETITIONER:
------------------------------------------------------------------

            ALAVI, AGED 45 YEARS,
            S/O.MOOSAKUTTY, VENTHATTIL HOUSE, VILAYIL AMSOM,
            MUNDAKKAL DESOM, ERNAD TALUK, MALAPPURAM DISTRICT,
            REP: BY MUKTHIAR AGENT AYISHABI, W/O.ALAVIKUTTY,
            VILAYIL AMSOM, MUNDAKKAL DESOM, ERNAD TALUK,
            MALAPPURAM DISTRICT.

            BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR
                          SRI.CIBI THOMAS

RESPONDENTS/RESPONDENTS/PLAINTIFFS:
--------------------------------------------------------------------------

          1. STATE OF KERALA,
             REP.BY DISTRICT COLLECTOR, MALAPPURAM - 676 505.

          2. AYHISHA, AGED 52 YEARS,
             W/O.THETTAN AHAMMEDKUTTY, THETTAN VEEDU,
             MUNDAKKAL P.O., MUTHUVALLUR AMSOM, THAVANNOOR DESOM,
             ERNAD TALUK, MALAPPURAM DISTRICT - 673 645.

          3. MUHAMMED YASIR, AGED 42 YEARS,
             S/O.THETTAN AHAMMEDKUTTY, RESIDING AT DO - 673 645.

          4. ANWAR SADATH,, AGED 38 YEARS,
             S/O.THETTAN AHAMMEDKUTTY - 673 645.

          5. RIYAS,, AGED 30 YEARS,
             S/O.THETTAN AHAMMEDKUTTY, RESIDING DO - 673 645.

          6. AFSAL, AGED 28 YEARS,
             S/O.THETTAN AHAMMEDKUTTY, RESIDING DO - 673 645.

          7. FAYAS, AGED 25 YEARS,
             S/O.THETTAN AHAMMEDKUTTY, RESIDING DO - 673 645.

          8. SALEENA, AGED 33 YEARS,
             S/O.THETTAN AHAMMEDKUTTY, RESIDING DO - 673 645.

          9. FASEELA, AGED 26 YEARS,
             S/O.THETTAN AHAMMEDKUTTY, RESIDING DO - 673 645.

            R1 BY GOVERNMENT PLEADER SMT.LILLY LESLIE
            R2 TO R9 BY ADV. SRI.R.RAJESH KORMATH

            THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD
            ON 19-03-2014, THE COURT ON 11-04-2014 DELIVERED THE FOLLOWING:
Msd.



                      P. BHAVADASAN, J.
                 - - - - - - - - - - - - - - - - - - - - - -
                    Ex.S.A. No. 27 of 2013
                 - - - - - - - - - - - - - - - - - - - - - -
             Dated this the 11th day of April, 2014.

                              JUDGMENT

The short question that arises for consideration in this appeal is whether a person who is not in possession of the property can obstruct the delivery under Order XXI Rule 97 of the Code of Civil Procedure or claim benefit of adjudication under Order XXI Rule 99 of the Code.

2. 25 cents of land was relinquished by the predecessor-in-interest of the first respondent in E.A.38 of 2011 in E.P.247 of 2010 to the Government for putting up a Public Health Centre in 1967. Since the Government did not utilize the land for the said purpose, the land was sought back. Ultimately it resulted in O.S. 299 of 2003 wherein the first respondent in the E.A. and the petitioner in E.P.247 of 2010 succeeded in getting a decree in his favour enabling him Ex.S.A.27/2013.

to recover the property from the second respondent Government. That decree has become final.

3. In pursuance to the decree in O.S. 299 of 2003, the decree holder took out execution. When execution proceedings were progressing, the appellant herein came forward with E.A. 38 of 2011 in E.P. 247 of 2010 by which he disputed the right of the decree holder to get delivery of the property.

4. The case put forward by the applicant or the claimant as the case may be in the execution application was that the schedule property in E.A. belonged to him. His father Moosakutty obtained the plaint schedule property along with other properties by partition deed Nos. 1305/1923, 1371/1942 and 710/1971. On the death of Moosakutty the legal heirs effected partition as per document No.247/1981. Petition schedule property along with other items were set apart to the petitioner. At that time, the petitioner was a Ex.S.A.27/2013.

minor and his mother was looking after the property. After attaining majority, the petitioner had been in absolute possession and enjoyment of the property. Even prior to the year 1971 purchase certificate in respect of the property had been obtained.

5. While things stood thus, the claimant came to know about the fraud played by the father of the first respondent in E.A. 38 of 2011 who is no more and who, according to the claimant had no right or authority over the property, had relinquished the property to the Government. It was done without the consent, knowledge and willingness of the claimant. Neither the first respondent nor his predecessor-in-interest had any authority to relinquish the property in question which belonged to the claimant exclusively. It is pointed out that when the claimant came to know about the fraud played by him, he complained to the officers of the second respondent State. On enquiry, his Ex.S.A.27/2013.

grievance was found to be true and Ext.A4 bears testimony to the said fact. The property was directed to be returned to him. Since for a long time nothing happened, it led the applicant to file O.S. 197 of 1992 in which both the decree holder in O.S. 299 of 2003 as well as the State were made parties. In the suit the Government represented that they did not intend to hold the property laying any manner of right and based on that representation the suit was not pressed and it happened to be dismissed as nothing remained to be considered in the suit. The claimant was under the presumption that since the State had realised the folly and had sought to rectify the same, steps would be taken to give possession of the property to him.

6. Contrary to his belief and hope, it is alleged that the first and second respondents colluded and the first respondent instituted O.S.299 of 2003 showing only the State as the respondent and obtained a decree for recovery of Ex.S.A.27/2013.

possession in respect of the property which belonged to the claimant and which was the subject matter of O.S.197 of 1992. It is pointed out that deliberately the first respondent did not make the applicant a party to the proceedings even after fully knowing the nature of the claim raised by the claimant. The definite stand taken by the claimant was that the first respondent herein had neither title nor possession over the suit property and any act done by him in respect of the property is not binding on the claimant or the property and the State has not obtained any valid or legally recognised right over the property. It is therefore alleged that delivery of the property could not be given to the first respondent.

7. The first respondent resisted the claim. According to him, the petitioner in the E.A. had no right over the property. None of the deeds relied on by him takes in the property which is the subject matter of the litigation. It is pointed out that it was admitted by the claimant that he had Ex.S.A.27/2013.

filed O.S.197 of 1992 to which he was also a party. The Commissioner visited the property and he filed a report and plan. Finding that the plaintiff in the suit who is none other than the claimant has no legs to stand, he gave up the suit and the suit was dismissed as not pressed. In the light of the said decision, the present suit is barred by res judicata. If he had any right, that stood extinguished. The first respondent traced his title to the plaint schedule property through various deeds. It was contended by him that at the relevant time there was a sub division of the property and the survey number of the relinquished property was 46/10B and the rest of the property of the first respondent was included in Sy. Nos.46/10A and 46/10C. The claimant had no manner of right over the property and it is only a dilatory tactics to prevent the decree holder from enjoying the fruits of the decree.

Ex.S.A.27/2013.

8. For reasons best known to the State, they did not chose to file their objection even though they were shown as second respondent in the application.

9. No oral evidence was adduced before the court below and the documentary evidence consists of Exts.A1 to A4 from the side of the claimant and Exts.B1 to B6 from the side of the first respondent.

10. Both the courts below found that the application filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure was misconceived as that provision can be invoked only by the decree holder when there is obstruction for delivery. Even if the petition is to be treated as one under Order XXI Rule 99 of C.P.C., both the courts below found that as on the date of the filing of the petition, the petitioner was not in possession and if that be so, it was incompetent for him to apply under the said provision. Ex.S.A.27/2013.

Holding so, the trial court dismissed E.A. 38 of 2011 which was confirmed in appeal.

11. The substantial questions of law that arise for consideration are :

(i) Are the courts below justified in rejecting the application for adjudication of the rights of the petitioner over the decree schedule property solely on the basis of the finding that the petitioner is not in physical possession of the property as on the date of the petition?

(ii) Have not the courts below erred both on facts and in law in not embarking on an adjudication as contemplated under Order XX1 Rule 101 of the Code.

12. Shri. O Ramachandran Nambiar, learned Senior Counsel appearing for the appellant vehemently criticized the approach adopted by the courts below. According to him, the approach is neither justified in law nor on facts. It was admitted by him that it might not have been proper on the part of the appellant to have filed an application under Order Ex.S.A.27/2013.

XX1 Rule 97 of the Code. But there is no harm in treating the petition as one under Order XXI Rule 99 of the Code. However, learned counsel pointed out that infact Order XXI Rule 99 comes into play only after the person concerned is dispossessed and seeking redelivery. But that provision has been interpreted by the Apex Court as one giving right to the person concerned to approach the court even prior to dispossession as could be seen from the decision reported in Babulal v. Raj Kumar (AIR 1996 SC 2050). In view of the above decision, an anticipatory dispossession petition is maintainable.

13. Shri. O. Ramachandran Nambiar then went on to contend that the courts below were wrong in law in holding that the claimant had to be in actual physical possession of the property. According to him, an adjudication as to whether the petitioner has title and whether he is entitled to be in possession is necessary. True, O.S. 197 of 1992 filed by the Ex.S.A.27/2013.

claimant herein was dismissed as not pressed. But the learned counsel highlighted one aspect and that is the decree holder in the present proceedings was a party to the said suit. So also the State. Thus, the decree holder in O.S.299 of 2003 was fully aware of the right agitated by the claimant herein and quite surprisingly without making the claimant herein a party to O.S.299 of 2003, a decree was obtained behind his back. It is meaningless to say that the appellant is not in possession. Relying on Ext.A4, which is a communication addressed by the Assistant Collector (Revenue Division) to the District Collector, learned counsel went on to point out that the case put forward by the claimant that neither the decree holder in O.S.197 of 1992 nor any of his predecessors-in-interest had any manner of right over the suit property was established. Under such circumstances, neither the decree holder nor the second respondent could be said to have been in legal possession as neither of them had any manner of right and Ex.S.A.27/2013.

their claim therefore cannot be recognized in law. At any rate, these aspects ought to have been adjudicated by the courts below and the courts below were not justified in simply dismissing the petition.

14. Shri. O.Ramachandran Nambiar went on to point out that after the amendment of 1976, the scope of enquiries under Order XXI Rule 97 and Rule 99 have been considerably widened and it embraced complete adjudication of all rights which are claimed between parties regarding the delivery and other proceedings in execution. Once a party takes recourse to such proceedings, he is precluded from filing a suit. Under these circumstances, the learned counsel went on to point out that the courts below should have approached the issue more seriously.

15. Shri. Rajesh Kormath, learned counsel appearing for the contesting respondents pointed out that there is absolutely no merit in the contention raised by the Ex.S.A.27/2013.

learned counsel for the appellant. It is trite that to maintain a petition under Order XXI Rule 99 of the Code, the person concerned has to be in actual physical possession of the property. It is an admitted case that in the case on hand the claimant was not in possession of the property and if that be so, the application is misconceived. Attention was drawn to the fact that the claimant had filed O.S. 197 of 1992 and for whatever reasons it might be, that suit came to be dismissed as not pressed. The consequence of submitting that proceedings is not pressed and got it dismissed has been considered in the decision reported in Muhammed Master v. Abu Haji (1981 K.L.T. 578).

16. Learned counsel went on to point out that the allegations of collusion, fraud etc. are without any basis and foundation and have been cooked up for the purpose of this case. According to him, the courts below were perfectly justified in dismissing the application since it was evident from Ex.S.A.27/2013.

the application itself that the applicant was not in possession of the property. The provision contemplates adjudication of the issue only by a person of the proceedings or a stranger who is in actual possession of the property who agitates right which he is entitled to hold or continue in possession. The remedy available to the claimant in this case is only to file a separate suit. He cannot object to the delivery of possession of the property to the decree holder. According to him there are no grounds to interfere and the appeal is only to be dismissed.

17. Certain basic facts may be kept in mind. As of now, there are rival claimants to the property in question. Both claim title as well as possession. The claimants not only rely on partition deed Exts.A1 and A2 dated 27.2.1981 and 8.5.1923 respectively but also on a mortgage deed of the year 1945. It is also claimed that the predecessor-in-interest of the claimant has obtained purchase certificate. The decree Ex.S.A.27/2013.

holder on the other hand relies on the assignment deeds dated 2.11.1926 and 6.10.1945. According to the them, the property involved in this proceedings is taken in by their respective title deeds. The decree holder has produced Exts.B5 and B6 documents which are the commission report and plan in O.S.197 of 1992. In the said suit, the Commissioner showed the disputed portion as A schedule forming part of a larger extent of B schedule. It would appear that in Exts.B5 and B6 the Commissioner was of the opinion that A schedule was not formed part of B schedule. However, it is significant to note that in the said suit even though the decree holder in O.S.299 of 2003 was a party, he did not seek to have his property identified nor did he produce his title deeds before the commissioner. This is evident from the commission report itself.

18. Whatever it may be, the decree holder in O.S.299 of 2003 was fully aware of the rights asserted by the Ex.S.A.27/2013.

claimant herein and he knew that his claim for possession was being disputed. Still it is without making him a party that the suit was filed and it is significant to notice that it does not appear that the State also had pointed out that it was the claim of the claimant herein which was agitated in O.S. 197 of 1992. It is true that O.S. 299 of 2003 was fought upto this Court and the State lost the same. But the main contention of the State in the suit was that once having relinquished the rights over the property, it becomes a puramboke land and it is no longer available for reconveyance. That plea of the State was found against and a decree was granted.

19. It can be appropriate at this stage to refer to Ext. A4 in this context. It is a communication from the Assistant Collector, Revenue Divisional Office to the District Collector. The subject matter of the communication is the very dispute involved in this proceedings. The claimant herein through his power of attorney holder had preferred a claim Ex.S.A.27/2013.

before the revenue authorities regarding the relinquishment. In the communication it is stated that on enquiry it was found that the person who relinquished the rights over 25 cents in Sy. No.46/10 had no absolute right over the property and on the basis of the records scrutinized, it belonged to the claimant. It was recommended that steps be taken to reconvey the property to the appellant herein who is the claimant in this proceedings. What is significant is that the communication specifically mentioned that the parties were heard in person. Not only it recognized the right of the claimant, but the Assistant Collector observed that there is a gross misuse of power by the officers concerned and recommended action against them. Finally it concludes by saying that steps may be taken to reconvey the property to the actual owner.

20. Though the learned counsel appearing for the respondents challenged the authenticity and admissibility of Ex.S.A.27/2013.

this communication, neither of the courts below seem to have found against admitting the document. At any rate, that material shows that there is some basis for the right agitated by the claimant herein. At any rate, it is evident from that communication that the claim made by the claimant is not frivolous or vexatious. The communication is dated 20.11.1991.

21. Neither side had produced the pleadings, documents or evidence in O.S.299 of 2003. But one fact is very evident and that is the claimant was not a party to the said suit. One fails to understand as to why the State did not point out the claim of the claimant herein in the said suit.

22. Coming to the core issue, are the courts below justified in declining to consider the claim only because the claimant was found to be not in physical possession of the property as on the date of the application? Is it not sufficient that he be in de jure possession or is legally entitled to Ex.S.A.27/2013.

possession and therefore has a right to be in possession? Conversely, can it be said that a person who has no legal right to be in possession should be put back in possession or that his possession must be protected.

23. The main issue raised in this appeal is regarding the manner of adjudication under Order XXI Rule 101 C.P.C.

24. In order to appreciate the present controversy, a few aspects may have to be noticed.

25. Prior to the amendment of C.P.C. in 1976, enquiry under Order XX1 Rules 97 and 99 were summary in nature. No detailed enquiry was then contemplated nor was it to be undertaken to resolve the right in the claim petition. However, that position underwent a sea change after the amendment of 1976. A reading of Order XXI Rules 97 to 103 will leave one in no doubt that a full fledged enquiry into the right and title of the claimant will have to be adjudicated in the Ex.S.A.27/2013.

proceedings. True, Order XXI Rule 104 shows that such adjudication will dependent on a pending suit. But the suit envisaged under Order XXI Rule 104 must have been pending as on the date of institution of proceedings under Order XXI Rule 97 or Rule 99. In the decision reported in Vaniyankandy Bhaskaran v. Mooliyil Padinhjarekandy Sheela (AIR 2009 SC

250) it was held as follows:

"14. The submissions made on behalf of the appellant regarding the applicability of Rule 104 of Order 21 of the Code has substance and merits consideration in an appropriate case, but they do not justify interference with the order of the High Court in the facts of this case. The suit filed by the appellant for specific performance of contract was considerably later in point of time than the commencement of the execution proceedings and, in any event, the language of Rule 104 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of the proceeding in which orders were made under Rule Ex.S.A.27/2013.

101 or 103. Since the appellant's suit was filed long after the commencement of the execution proceedings, the provisions of Rule 104 of Order 21 of the Code will not apply to this case."

26. The scope and ambit of enquiry under Order XXI Rules 97 to 103 have been considerably widened and the question involved in this proceedings will have to be viewed in that angle.

27. Order XXI Rule 97 enables the decree holder to file a petition for removal of obstruction. A reading of the provision makes it clear that that provision can be availed of only by the decree holder. But Clause 2 of Order XXI Rule 91 says that when an application is filed under the said provision, the adjudication shall be in accordance with the provisions subsequently mentioned.

28. Next is Order XXI Rule 99 of C.P.C. The said provision on a strict interpretation enables a person who has been dispossessed in pursuance to a decree to file an Ex.S.A.27/2013.

application seeking to put back in possession on the basis of his better claim or superior claim.

29. It must be noticed that Order XXI Rule 98 and Rule 100 are similarly worded except clause (2) available under Order XXI Rule 98. A careful reading of the provision would show that Order XXI Rule 98 deals with an order to be passed by the court on an application under Order XXI Rule 97 while Rule 100 deals with application under Order XXI Rule 99. But it must be noticed that adjudication of an application both under Order XXI Rule 99 and 97 is governed by Order XXI Rule

101. Thus even though there is a conscious distinction maintained by the legislature regarding the nature of the order to be passed on an application under Order XXI Rules 97 and 99, the procedure to be followed for adjudication is the same.

30. There is a catena of decisions as to the manner of enquiry contemplated under Order XXI Rule 101. In the Ex.S.A.27/2013.

decision reported in Babulal v. Raj Kumar (AIR 1996 SC 2050) it was held as follows:

"7. It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a Ex.S.A.27/2013.

complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance."

31. In the decision reported in Shreenath v. Rajesh (AIR 1998 SC 1827) it was held that a third party can approach the court before being dispossessed and he need not have to wait till he is dispossessed. In the said decision it was held as follows:

"10. Under sub-clause 1 Order 21, Rule 35, the Executing Court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21, Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said Ex.S.A.27/2013.

property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21, Rule 99 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the Executing Courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with provisions contained hereinafter. This refers to Order 21, Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21, Rule 97 or Rule 99 shall be determined by Ex.S.A.27/2013.

the Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstructed by a stranger is adjudicated and finality given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under Order 21, Rule 97. Thus by the use of the words 'any person' it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger.

........... ............

14. We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21, Rule 97, has to be decided by the Executing Court itself.

15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh Ex.S.A.27/2013.

High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99 (Rule) the new law covers cases where persons other than judgment-debtor is dispossessed of immovable property by the decree- holder, of course, such cases are also covered to be decided by the Executing Court. But this will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21, Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree-holder. For all the aforesaid reasons, we do not find the Full Bench in Smt. Usha Jain Ex.S.A.27/2013.

(supra) correctly decided the law.

16. In Noorduddin v. Dr. K. L. Anand, (1995) 1 SCC 242 : (1994 AIR SCW 5093) it is held :-

"Para 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 decree- holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. 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 Ex.S.A.27/2013.

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."

32. In the decision reported in Prasantha Banerji v. Pushpa Ashoke Chandani (AIR 2000 SC 3567) it was held that once proceedings under Order XXI Rule 97 or Rule 99 is resorted to, separate suit is not maintainable. In the decision reported in N.S.S. Narayana Sarma v. M/s. Goldstone Exports (P) Ltd. (AIR 2002 SC 251) it was held as follows:

"19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructing the attempt by the decree- holder to dispossess him from the said property the executing Court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions Ex.S.A.27/2013.

of Order 21 Rule 103 is to be treated as a decree. From the averments made in the petition filed by the appellants before the executing Court it is clear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is the further case of the appellants that the right in the property had vested in them much prior to filing of the present suit the decree of which is under execution. It is to be kept in mind that the suit as initially filed was a suit for partition simpliciter. In such a suit the High Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned single Judge and the Division Bench dismissed the petition filed by the appellants as non-maintainable without entering into the merits of the case. The Division Bench appears to have taken the view that since the appellants are claiming the property through the Paigah Committee or the State Government who are parties in the suit, they are bound by the decree.

Ex.S.A.27/2013.

The view taken by the Division Bench is unsustainable and does not at all stand scrutiny under law. It amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the State Government under the provisions of Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act 1958. On a perusal of the orders passed by the single Judge as well as Division Bench of the High Court, we are constrained to observe that the said orders are based on a complete mis- reading of the case of the appellants and mis- conception of the legal position relevant to the matter. Considering the facts and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a single Judge at the first instance."

Ex.S.A.27/2013.

33. In the decision reported in Ittiyachan v. Tomy (2001(3) K.L.T. 117) observing that mere possession by claimant is not sufficient, it was observed as follows:

"5. An obstruction under O. XXI R.97 of the Code of Civil Procedure or for re-delivery under R.99 of O.XXI of the Code of Civil Procedure, can be maintained by a person who is not bound by the decree or who claims an independent right over the property. After the amendment of the Code in the year 1976, mere possession by the claimant would not be sufficient. The claimant has also to show a right to possession independent of the judgment debtor. In that situation, it is necessary for the claimant in the present case, to show that he has got a right in the property which is not affected or which cannot be affected by the decree, in execution of which it was delivered."

34. In the decision reported in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (AIR 1997 SC 856) it was held that a stranger need not wait till dispossession for Ex.S.A.27/2013.

resorting to Order XXI Rule 99 of the Code and the observation to the contrary are not sound in law.

35. In the decision reported in Ashan Devi v. Phulwasi Devi (AIR 2004 SC 511) the test of possession as is relevant for the purpose of filing an application under Order XXI Rule 99 was considered. In the said decision, it was held as follows:

"22. The word "dispossessed" as used in O. XXI, R. 99 of the Code has been narrowly construed to be an ouster from actual and physical possession of the property by several High Courts. See AIR 1954 Mad 516 (519) : 1966 (32) Cut LT 972 and AIR 1978 Goa 48.

.......... ...........

24. The objectors have laid evidence before the executing Court to show that after obtaining by recitals in the sale deeds delivery of possession of the property, the names of purchasers were also mutated in the Municipal's records. Merely because at the time of execution of the decree through Court Nazir, the objectors were not physically present on Ex.S.A.27/2013.

the property, it cannot be said that the delivery of possession to the decree-holder by the Court does not amount to the objectors' legal ouster or 'dispossession.' The word 'possession,' therefore, has to be given contextual meaning on facts of a particular case and the nature of the property involved.

25. In interpreting the provisions of O. XXI, R. 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 O. XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal v. Ch. Parbhu Ram (1985 (1) SCC 61)."

Ex.S.A.27/2013.

36. The issue was considered elaborately in the decision reported in Babu Raj v. Vasanthi Devi (2008(4) K.L.T.

761). The decision exhaustively considered the various decisions on the aspect, law on the point and considered the scope of enquiry under Order XXI Rule 101. It also considered the question of possession. In the said decision it was held as follows:

"16. .......The proposition that the decree itself is the title of the decree holder may be valid as between the parties to the decree or their privies but not against strangers to the decree. The argument that the executing court cannot go behind the decree is not available to the decree holder or auction purchaser in the case of an adjudication under O.21 R.97 to 101 C.P.C. It is relevant to note that the authority given to the court under R.98 and 100 of O.21 C.P.C. Includes a power to put the decree holder or auction purchaser (who are the applicants under O.21 R.97 C.P.C.) or the stranger obstructor (who is the applicant under O.21 R.99 C.P.C.) to be put in possession of the Ex.S.A.27/2013.

property. It is such an order passed under Rules 98 or R.100, as the case may be or O.21 C.P.C. Which will be deemed to be decree and which will be executable and appealable. Such an order supercedes the earlier decree to which the stranger obstructor was not a party."

The same decision laid down the procedure to be followed and the approach to be made while adjudicating an application under Order XXI Rule 97 or Rule 99 as the case may be and held as follows:

"17. A perusal of the orders under appeal will go to show that the courts below proceeded as if they cannot go behind the decree and that the only enquiry which was contemplated was as to whether the obstructor has made out his claim in support of the obstruction. It is pertinent to note that the claimants in this case are not claiming under the judgment debtors or at their instigation but instead they were setting up independent claims. If in the adjudication of such a claim the court were to merely call upon the obstructor to establish his Ex.S.A.27/2013.

case, then there could be situations wherein a person in actual possession under a valid title could be thrown out of the property by another person obtaining a decree for possession not against the person who is in actual possession under a valid title but against somebody who may have a semblance of title and it will be travesty (sic of) justice if the person in actual possession under a lawful title were to be ejected without examining the title of the person who seeks to dispossess or eject such person. That explains the language used by the legislature under R.101 of O.21 to indicate that all the questions including the questions relating to right, title or interest in the property arising between the parties to the proceeding, are to be determined by the Court. Incidentally, it is pertinent to remember that the position of an obstructor as in this case would be analogous to the position of a defendant in a suit for recovery of possession on the strength of title and the enquiry in such a proceeding should be not to consider whether such a person has better title over the person who seeks recovery of possession. The enquiry should be as to Ex.S.A.27/2013.

whether the person who seeks to displace or dispossess or eject the person who is admittedly found in possession has sufficient title qua the person in possession so as to eject him from the property. The enquiry in this case should have been primarily in that direction, particularly, in a case as the present where both the preliminary as well as final decree were obtained ex parte without a contest. This is not to say that after such adjudication the Court is precluded from finding that the obstructor is in occupation under the J.D. or is claiming under a title created by the J.D. or was inducted into possession pendente lite or that the obstruction was at the instance of or on behalf of the J.D. or that the obstructor is a pendente lite transferee. But the enquiry should be to find out whether the decree holder has sufficient title de hors the decree to dispossess or eject the obstructor. I am inclined to give the decree holders an opportunity to prove that they have sufficient title to dispossess the appellants herein and get delivery of the property in pursuance of the final decree passed on 8.10.1976. The substantial Ex.S.A.27/2013.

questions of law are answered in the negative and in favour of the appellants. The impugned judgments are, accordingly, set aside and the matter is remanded to the trial court for fresh adjudication in the light of the legal position adverted to. The parties shall appear before the trial Court without any further notice on 19.12.2008. The Executing Court shall make an endeavour to dispose of the matter expeditiously."

37. In the decision reported in Unnikrishnan v. Kunhibeevi (2011(1) KHC 352) after referring to the decision reported in Nooruddin v. Dr.K.L. Anand ((1995) 1 SCC 242) it was observed that the right of suit under Order XXI Rule 103 is no longer available and the entire right, title and interest of the rival claimant will have to be adjudicated under Order XXI Rule 101. In the said decision it was observed as follows:

"10. The decisions referred to and relied by the learned counsel for the plaintiff other than Tanzeem-e-Sufia's case (AIR 2002 SC 3083) and Ex.S.A.27/2013.

Baburaj's case (2008 (4) KLT 761) both cited supra, which shall be adverted to later, dealt with the right of a third party to a decree to establish his right over an immovable property otherwise than, by recourse to the provisions of O.XXI of the Code, without taking note of the impact of the amendment to Rr.97 to 103 of O.XXI of the Code brought in 1976 under Act 104 of 1976 or the interpretation placed over such amendment by the Apex Court that even a third party has to move an application before the court in which the decree is executed to resist or obstruct its execution and his dispossession, and he can do so even before delivery is ordered or after dispossessed from the properly, and that he cannot maintain a separate suit, to establish his right, interest and title over the property, if it is so covered by the decree put in execution. In Nooruddin v. Dr.K.L.Anand (1995) 1 SCC 242), the Apex Court after considering the scope and ambit of the amendment to the Code in respect of O.XXI Rr.97 to 104 under Act 104 of 1976, pointing out that the right to file a suit under O.XXI R.103 of the 1908 Code which was available Ex.S.A.27/2013.

earlier had been taken away under the above amendment has laid down in unmistakable terms that any person who claims any right, title or interest, whether or not he is a party to the decree, by virtue of the amendment to the above Rules under O.XXI of the Code has to pursue his remedies only under the relevant rule applicable under O.XXI for adjudication of his right, title and interest in the immovable property in execution and any decision thereof which is deemed to be a decree, subject to the further challenge as provided by the Code, has to be treated as final and conclusive. The Apex Court in the above decision has held thus:

"Thus the scheme of the Code clearly adumbrates that when an application has been made under O.21, R.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 decree holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of Ex.S.A.27/2013.

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 Code of Civil Procedure Amendment Act, 1976, right of suit under O.21, R.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."

24. The court below has not considered the maintainability of the suit with reference to the Amendment Act of 1976 in relation to the amendments made to Rr.97 to 103 of O.XXI of the Code probably because it was not raised in the written statement, nor canvassed by the defendants. Where the provisions covered by Rr.97 to 103 of O.XXI is a complete Code by themselves, as has Ex.S.A.27/2013.

been held by the Apex Court, time and again, in the decisions referred to above, in the matter of adjudication over the disputes as between any person and the decree holder over a property covered by a decree for possession put in execution, where under the jurisdiction to decide such disputes vests with the execution court and none else, when the execution of a decree has led to a court sale and dispossession of the claimant, only an application under R.99 of O.XXI, would lie, if the applicant is so entitled to. A suit by a third party before any court impeaching the correctness of the court sale, setting up any claim over the property covered cannot at all be entertained. As the very jurisdiction of a court to entertain a suit, under the circumstances indicated, is interdicted by the provisions covered by Rr.97 to 103 of the Code, the inescapable conclusion which follows is that the suit filed by the plaintiff in the present case was not maintainable and it ought to have been dismissed at the threshold.

The exercise done by the court below on the materials placed to find that the sale of B Schedule properties under Ext.Al decree was vitiated by fraud Ex.S.A.27/2013.

and material irregularity and illegality was quite unwarranted, and, in view of the conclusion reached that the suit is not maintainable, such finding has to be treated as of no consequence and devoid of any value. The decree passed by the court below, setting aside the sale of A and B Schedule in execution of Ext.Al decree with further directions for fresh sale and also the prohibitory injunction passed against the defendants is liable to be set aside and is ordered accordingly."

38. In all the above decisions, the words 'any person' was widely and liberally construed. The above decisions also recognized the right of a stranger to approach the court for relief even before he is dispossessed as contemplated under Order 21 Rule 99 of the Code.

39. In the decision reported in Ashan Devi v. Phulwasi Devi (AIR 2004 SC 511) as to what constitute possession for the purpose of Order XXI Rule 99 was also considered. It appears that the test enunciated by the Apex Court for determining whether a man is in possession of Ex.S.A.27/2013.

anything is whether he is in general control of it, may be that he is not in actual and physical possession or using the same.

40. It is therefore abundantly clear that when a petition under Order XXI Rule 97 is made or claim is made under Order XXI Rule 99 by the respective persons and the claimant under Order XXI Rule 97 sets up claim in derogation of the rights of the decree holder to get delivery of possession, his right will have to be adjudicated in the very same proceedings and it is not possible for the decree holder to simply rely on the decree. In the decision reported in Padmaja v. Sajeev (2006(1) K.L.T. 265) it was held that provision is applicable in a case for specific performance also. It was held as follows:

"11. The next point to be considered is whether the petitioner is entitled to seek protection under S.19(b) of the Specific Relief Act. S.19 provides that the specific performance of a contract Ex.S.A.27/2013.

may be enforced against either party thereto, or any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. S.19(b) does not say whether a title arising subsequent to the contract could be a title which arises subsequent to the institution of the suit. It only contemplates a situation where a third party acquires title subsequent to the contract entered into between the parties to the suit. Such a third party must be a transferee for value who has paid the money in good faith and without notice of the original contract. The question is whether a subsequent purchaser who acquired title subsequent to the institution of the suit could claim the benefit of S.19

(b) of the Specific Relief Act claiming to be a transferee for value in good faith and without notice of the original contract. To answer this question, we have to seek the aid of S.52 of the Transfer of Property Act as well. S.52 of the Transfer of Property Act reads as follows:

Ex.S.A.27/2013.

"52. Transfer of property pending suit relating thereto:-- During the pendency many Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation:-- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of Ex.S.A.27/2013.

the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."

S.52 is a bar on a party to the suit transferring the subject matter of the suit during the pendency of the suit without the authority of the Court. A transfer made by a party to the suit subsequent to the institution of the suit which affects the rights of the opposite party would not be recognized by the Court. S.52 does not contemplate a case of the transferee being a bona fide purchaser. A defence that the transferee is a bona fide purchaser for value without notice of the earlier transaction is not a defence that could be taken in answer to the claim of bar under S.52. The terms of S.52 are clear and imperative. It cannot be said that a purchaser without notice of earlier agreement would not be affected by the mandate of S.52. In this context, it is relevant to note that S.100 of the Transfer of Property Act recognizes the rights of any person who acquires the property for consideration and without notice of the charge. The charge under Ex.S.A.27/2013.

S.100 could be created by act of parties or by operation of law. S.52, on the other hand, can have operation during the pendency of a litigation.

........... ...........

14. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (AIR 1997 SC 856), the Supreme Court held thus:

"In short the aforesaid statutory provisions of O.XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under O. XXI, R. 97 sub-r.

(1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under O. XXI, R. 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under O. XXI, R. 97 in connection with removal of obstruction Ex.S.A.27/2013.

of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under O.XXI, R. 99, CPC and pray for restoration of possession..."

In Babulal v. Raj Kumar (AIR 1996 SC 2050), the Supreme Court held that a third party who resisted delivery of the immovable property on the basis of a decree for specific performance could maintain an application for deciding his rights. It was held that he need not wait till he is dispossessed and that executing court is required to determine the question of right, title and interest of the obstructor. In view of the law laid down by the Supreme Court in the aforesaid decisions, it cannot be said that a third party has no right to object to the execution of the decree before he is dispossessed. As held by this Court, there is no execution proceeding as such in the case of a suit for specific performance, for the purpose of getting the document executed or for delivery of Ex.S.A.27/2013.

possession. Still the process by which the decree is implemented by what ever nomenclature it is called, is also a proper stage where the third party who objects to the decree could raise his objection. To my mind, all the provisions of O.XXI R.97 to 101 would apply to a proceeding in a suit for specific performance as well, though such application is not filed in an execution petition but is filed in the proceedings under S.28(3) of the Specific Relief Act. The nomenclature is quite irrelevant; whether it is an execution petition or proceeding in an original suit is not the relevant criterion. Therefore, I hold that the application filed by the petitioner before the court below is maintainable for being considered on the merits."

41. Learned counsel appearing for the respondents emphasised that without being in actual possession, the stranger cannot apply. According to him, possession as on that date is sine qua non for raising a claim. In the decision reported in Muhammed Master v. Abu Haji (1981 K.L.T. 578) Ex.S.A.27/2013.

as pointed out by the learned counsel for the respondent, consequence of not pressing a proceeding was considered and it was held as follows:

"4. As a result of 'not pressing' certain allegations and grounds raised in a pleading, a litigant submits that the issues arising therefrom may be decided against him and in favour of his opponent; and those issues are. decided accordingly It is virtually a decision by consent, in that the party asserting or disputing, concedes that his assertion or dispute, as the case may be. merits no consideration as he cannot substantiate the same. The allegations are, however, there, and they are decided. Therefore, what has been said of consent decisions, namely-"......the truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end" (Lord Horschell in In re South Amercian and Mexican Company, Ex parte Bank of England (1895- 1 Ch. 37), can, with much more force, be said of a Ex.S.A.27/2013.

decision that the allegations in the pleading have not been substantiated because they are not 'pressed' by the maker of those allegations. It cannot be said that the allegations which have been found arid held to be not established, are withdrawn in such circumstances."

But a reading of the said decision would show that it was in the context of the facts of that decision it was so held and it is extremely difficult to accept that it can have general application. It is true that in the Code of Civil Procedure by Manohar and Chitaley - 11th Edn. - Vol.4 at page 1197 it is observed as follows:

"The rule contemplates physical possession and not juridical possession. The scope and ambit of the enquiry under this rule and R.101 is to make an enquiry whether the applicant was in actual possession, (whether jointly or exclusively) on the date of dispossession. Unless possession was surrendered to the decree-holder in eviction decree, Ex.S.A.27/2013.

      no     objections  under   O.21   R.99   would    be
      maintainable."

42. It is doubtful whether actual physical possession is absolutely necessary in view of the decision reported in Ashan Devi v. Phulwasi Devi (AIR 2004 SC 511) which has already been referred to. As early as in Mancharam v. Fakirchand (ILR 25 Bombay 481) it was observed that constructive possession would be sufficient for raising a claim under the provisions in question.

43. In fact this aspect is seen adverted to in Babu Raj v. Vasanthi Devi (2008(4) K.L.T. 761) also. If one is to accept the position that a person who is in actual physical possession alone can apply under Order XXI Rule 99 of C.P.C.

it may spell danger. By collusion it may so happen that rightful owner will be thrown out of possession. Even in such case it has held that a person who is entitled to be in possession can agitate his claim.

Ex.S.A.27/2013.

44. One cannot forget the fact that in the case on hand the decree holder in O.S.299 of 2003 was fully aware of the fact that the claimant in E.A.38 of 2011 fought his right in the earlier suit. Added to this is the fact that the right of the claimant seems to have been recognized by the Government as could be evident from Ext.A4. One would have therefore expected the decree holder in O.S. 299 of 2003 to make the claimant in E.A.38 of 2011 a party to his suit.

45. Learned counsel for the respondents pointed out that even going by the averments and evidence and the materials now available on record, it is clear that the claimant is not in possession and there is an admission on the part of the claimant. If that be so, the orders of the courts below are valid.

46. The question as to what constitute possession in the context has already been considered. Possession as recognized in Ashan Devi v. Phulwasi Devi (AIR 2004 SC 511), Ex.S.A.27/2013.

Babu Raj v. Vasanthi Devi (2008 (4) K.L.T. 761) and Mancharam v. Fakirchand (ILR 25 Bombay 481) deal with this aspect. It would appear from these decisions that it was not actual possession alone that is necessary. Even if there is no actual physical possession over the property, claim under Order XXI Rule 99 of C.P.C. may lie. One is left under no doubt that an adjudication of rights under Order XXI Rule 97 or Rule 99 part takes the character of the suit. This aspect was elaborately considered in the decision reported in Babu Raj v. Vasanthi Devi (2008 (4) K.L.T. 761). In the said decision, it was held that in such proceedings, the decree holder can sit back and rely on the decree alone. It was a case of rival claims and it was necessary for a decree holder to independently establish his claim to the property in the proceedings and could not rest by saying that the burden is on the claimant.

47. If that be the position in law, necessarily in the Ex.S.A.27/2013.

proceedings at hand, it was incumbent on the part of the decree holder to establish his right. One must remember here that even in O.S.197 of 1992 the decree holder herein was made a party to the suit, he did not have his property identified by the Commissioner. This is also fortified by the fact that in Ext.A4 there is a clear finding which says that it was entered into after hearing the parties in person that the property which was relinquished did not belong to the person who had opted to relinquish the property. Reading further, the communication says that the complainant before the said authority who is none other than the appellants herein seems to have a better title.

48. In the light of the above discussion, it follows that the orders of the courts below cannot be sustained. The finding purely based on the fact that the claimant does not appear to be in physical possession of the property cannot be accepted in the light of the decisions referred to above and the Ex.S.A.27/2013.

discussion as already made.

49. It must be remembered that after having resorted to the remedy available under Order XXI Rule 97 or Rule 99 of C.P.C. as the case may be, the person concerned is precluded from resorting to the remedy by way of a suit.

In the result, this appeal is allowed, the impugned orders are set aside and the matter is remanded to the execution court for disposal in the light of the observations made above and in accordance with law. The parties shall appear before the lower court on 22.5.2014. The execution court shall make every endeavour to dispose of the claim as expeditiously as possible, at any rate within a period of six months from the date of appearance of the parties before it.

P. BHAVADASAN, JUDGE sb.

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