Telangana High Court
R. Jaya Balan vs Mohammad Fazal on 4 June, 2025
Author: T. Vinod Kumar
Bench: T.Vinod Kumar, P.Sree Sudha
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
AND
THE HON'BLE SMT. JUSTICE P. SREE SUDHA
L.G.A. No. 1 of 2021
JUDGMENT:(Per Hon'ble Sri Justice T. Vinod Kumar) This Land Grabbing Appeal is filed against the Judgment dated. 10.02.2021 in E.A. No.40 of 2018 in E.A No.26 of 2018 in E.P. No.361 of 2017 in L.G.O.P. No.442 of 2003 on the file of IV Additional District and Sessions Judge, Ranga Reddy District at L.B. Nagar.
2. The Appellants herein are respondent Nos.14 and 20 in the underlying E.A. No.40 of 2018, which is filed under Order VII Rule 11(a) and (d) r/w Section 151 of CPC to reject the claim petition filed by the third parties under Section 47 r/w Order XXI Rule 97 to 101 i.e. E.A. No.26 of 2018 filed to declare the order passed in L.G.O.P No.442 of 2003 as in-executable as void ab initio.
3. The brief of the case of the appellants is that the respondent No.19 herein claims to have purchased land in Plot No.220 & 221, to an extent of 600 Sq. Yards in Sy.No.44/1 situated at 2 Miyapur Village, Serilingampally Mandal, Ranga Reddy District, was purchased through a registered Sale Deed dated 09.09.1996, respondent No. 19 had filed L.G.O.P. No.442 of 2003 against the respondent No.21/JDR No.1 to declare him as land grabber in respect of the Schedule Property i.e. Plot Nos.220 and 221 in Survey No.44/1 before the tribunal.
4. On the respondent No. 19 filing the petition before the special tribunal (for short 'Tribunal'). The tribunal during the pendency of the above said L.G.O.P. No.442/2003 appointed an Advocate Commissioner and also the Mandal Surveyor, who had visited the property under Rule 6 of A.P. Land Grabbing Prohibition Rules and filed his report. The said report categorically demarcated that the schedule property is situated in the Survey No.44/1. Accordingly, the said LGOP was allowed vide order dated. 14.10.2016 declaring the respondent No.21/JDR No.1 as land grabber.
5. The Tribunal while allowing the LGOP had directed the respondent No.21 herein to vacate and handover the possession within 90 days from the date of the order. Since, the respondent No.21/JDR No.1 failed to vacate and handover the possession, 3 the respondent No. 19 herein had filed the E.P. No.361 of 2017 to direct the Respondent No.21/JDR No.1 to deliver the possession. The Executing Court had issued notice to the respondent No.21/JDR No. 1. Despite of service of notice, he failed to appear in the above said E.P, consequently executing court issued the warrant of delivery of possession.
6. In furtherance of order in execution petition, the Bailiff of the Court had visited the E.P. Schedule property on 25.11.2017 and identified the property. Since, there was an existing construction in the Schedule property, the Bailiff could not execute the warrant and the same was returned for passing necessary orders. Therefore respondent No. 19/Decree Holder had filed E.A. No.13 of 2018 and E.A. No.36 of 2018 to break open the lock and provide police protection. Upon the executing court passing orders, the court bailiff along with the Police had visited the property on 09.07.2018 for execution of the warrant, but the same was again returned unexecuted.
7. The respondent No.21/JDR No.1 failed to obey the warrant issued by the court below. However, certain persons including the appellants herein claiming through the respondent No.21 4 have resisted the warrant of delivery of possession. The third- party claim petitioners thereafter have filed appeal before this court against the order in L.G.O.P. No.442 of 2003 vide LGA No.5 of 2018, however the said appeal was dismissed as withdrawn on 14.08.2018.
8. The respondent No. 19 herein thereafter had pressed for disposal of execution petition filed by him vide E.P. No.361 of 2017. The third-party claim petitioners thereafter by falsely claiming that schedule property is in Survey No.44/2 and not in Survey. No. 44/1 had filed E.A. No.26 of 2018 in the E.P. No.361 of 2017.
9. By the said application, the claim petitioners had sought to declare the decree/orders/judgement in L.G.O.P. No.442/2003 passed by Special Tribunal as void abinitio and is not executable against the claim petitioners claiming that their land lies in Sy. No.44/2, Miyapur village of Serilingampally Mandal, Ranga Reddy District.
10. During the pendency of the above said E.A. No.26 of 2018, the respondent No. 19/Decree Holder had filed E.A. No.40 of 5 2018 under Order 7 Rule 11(a) and (d) r/w Section 151 of CPC for rejection of the claim petition filed by the Applicants/claim petitioners.
11. Based on the above pleadings, the following point was framed by the Tribunal for consideration in the above EA. No.40 of 2018:
"Whether the claim petition filed by respondents herein under section 47 of CPC vide E.A. No. 26 of 2018 in E.P. 361 of 2017 is liable to be rejected?"
12. The Court upon perusal of the material evidence produced in support of the case, observed that the there is no dispute that the appellants are claiming title through respondent No.21/JDR who sold the subject property during the pendency of LGOP No.442 of 2003. Thus, as per Rule-102 of Order-XXI, the petitioners herein have no right to resist or create obstruction in execution of the decree for possession of the immovable property. Thus, the claim petition is clearly hit by Order-VII, Rule-11 (a) and (d) of CPC.
13. The trial Court further observed that the Claim petition i.e. E.A. No.26 of 2018 filed by the respondents 1 to 20/claimants 6 under Section 47 and Rule-97 to 101 of Order-XXI of CPC do not disclose a cause of action and the same is barred by Section 52 of Transfer of Property Act and Order-XXI, Rule- 102 of CPC.
14. Accordingly, the executing court by its order dated. 10.02.2021 allowed the said E.A. No.40 of 2018 and rejected the claim petition filed by the appellants herein vide E.A. No.26 of 2018.
15. Aggrieved by the aforesaid order of the Trial Court, the Appellants/respondent Nos.14 and 20 filed the present Appeal.
16. Heard Sri. J.C. Francis learned Counsel for the Appellants and Sri. M.A. K. Mukheed, learned Counsel for Respondents and perused the record.
17. At the outset it is to be noted that by the present appeal the appellants while seeking to lay challenge to order dated. 10.02.2021 in E.A. No.40 of 2018 in E.A No.26 of 2018 in E.P No.361 of 2017 in L.G.O.P No.442 of 2003, in fact are resisting the execution of the order in L.G.O.P. No.442 of 2003 against which they having filed L.G.A No.5 of 2018 and the same 7 having dismissed as withdrawn. The appellants having availed the remedy of appeal against the order in L.G.O.P cannot maintain their claim by filing E.A. No.26 of 2018 and also this appeal against the order of the Executing Court.
18. Further the case of the appellants is that the petition filed by respondent No.19 herein under Order 7 Rule 11(a) and (d) r/w Section 151 of CPC for rejection of the claim petition filed by them is not maintainable, as the said provision is applicable only in case of pre-decretal orders and does not apply to execution proceedings. It is contended that in the instant case the claim application filed by the respondents herein is under section 47 of CPC which cannot be rejected through Order VII Rule 11 of CPC inasmuch as the claim petition and the plaint are distinct and different in nature. Further it is contended that LGOP proceedings are not a suit or a civil proceeding for applying provisions of CPC.
19. The appellants contend that the alienation during the pendency of the LGOP proceedings do not attract the doctrine of Lis pendence under Section 52 of Transfer of Property Act inasmuch as the definition of property as contemplated in the 8 section 52 of TPA only refers to the property in issue in a suit, and does not include a claim petition in execution proceedings or proceedings under the Land Grabbing Act, 1882.
20. The appellants further contend that respondent No.19 herein is wrongfully claiming the land in Survey. No.44/2 as land in Survey No. 44/1 which in turn belongs to the claim petitioner's and the property under execution is entirely distinct from the property claimed to have been purchased by the respondent No. 19/Decree Holder.
21. Appellants further contended that they having invoked the jurisdiction of the executing court under Section 47 of the CPC, are entitled to question the legality and propriety of the execution proceedings, and the application filed by the respondent No.19 for rejection is not maintainable and is liable to be dismissed; and that the executing Court has erred in allowing the same.
22. Per contra, the respondent No.19 contends that he had purchased land to an extent of 600 Sq.yards in Sy. No.44/1 with reference to Plot Nos.220 & 221, Situated at Miyapur Village, 9 Serilingampally Mandal, Ranag Reddy District vide registered Sale Deed dated 09.09.1996.
23. The respondent No.19 further contends that instant case is covered under Order 21 Rule 102 of CPC, where the appellants being claim petitioners are claiming title of the schedule property through the judgment-debtor having purchased the same during the pendency of L.G.O.P. No.442/2003, are barred from resisting or obstructing the execution of the decree. In accordance with Order-XXI, Rule-102 of CPC, the transferee pendente lite has no right to resist the execution of the warrant and the same is barred under Section 52 of Transfer of Property Act.
24. The Respondent No.19 contends that a claim petition can be treated as a plaint under Order VII of the CPC, and is therefore amenable to rejection under the grounds enumerated in Order VII Rule 11. In the present case, the invocation of Order VII Rule 11(a) and (d) of the CPC, for rejection of the claim petition, is justified, as the provisions of the CPC are applicable to Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, to the extent they are not inconsistent with the special enactment. The Respondent No.19 further contends that if the present appeal is 10 entertained, then he may not enjoy the fruits of the decree passed by court below.
25. We have taken note of the respective contentions urged.
26. It is pertinent to note that the appellants are claiming title over the subject property through the respondent No.21/JDR, from whom they purchased the property during the pendency of LGOP. No.442 of 2003. However, since the appellant's vendor, i.e., Respondent No.21 / JDR, has been declared a land grabber by the Tribunal, the appellants/Respondent Nos.14 and 20 cannot claim any better title to the subject property than that of their vendor.
27. Since, the appellants/respondent Nos.14 and 20 are claiming subject property having purchased from the respondent No.21/JDR, who is declared as land grabber, have to be considered as successor in interest and would be liable for all the actions of their vendor.
11
28. The Supreme Court in Konda Lakshmana Bapuji v. Govt. of Andhra Pradesh and Ors 1 has held that:
"25....A combined reading of Clauses (d) and (e) would suggest that to bring a person within the meaning of the expression "land grabber" it must be shown that: (i)(a) he has taken unauthorisedly, unfairly, greedily, snatched forcibly, violently or unscrupulously any land belonging to the Government or a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person; (b) without any lawful entitlement; and (c) with a view to illegally taking possession of such lands, or enter or create illegal tenancies or lease and licence agreements or any other illegal agreements in respect of such lands or to construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis for construction, or use and occupation of unauthorised structures; or (ii) he has given financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon; or (iii) he is collecting or attempting to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation; or (iv) he is abetting the doing of any of the abovementioned acts; or (v) that he is the successor-in-interest of any such persons."
29. Further, it is also to be noted that the transfer of immovable property by the respondent No.21/JDR to the appellants herein attracts Section 52 of Transfer of Property Act, (for short TP Act) which bars the transfer during the pendency of suit or proceeding. Section 52 of Transfer of Property Act reads as follows:
1
AIR 2002 SC 1012 12
52. Transfer of property pending suit relating thereto-
During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable 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.
30. Since, Section 52 of TP Act uses the expression 'any suit or proceedings the claim of the appellants that the said provision applies to only suits is without any merit. Further, the use of expression 'any court' would take within its ambit the tribunal constituted under the Act. That apart Section 17 of the Act also prohibits alienation of lands grabbed. As the respondent No.19 herein by filing the underlying O.P. had alleged the respondent No.21 having grabbed the petition schedule property, the alienation of the same by the respondent No.21/JDr in favour of appellants herein would also stand hit by the provisions of Section 17 of the Act. Thus, the contention of the appellants on this aspect has to fail.
13
31. Thus, the appellants being transferee pendente lite as per order XXI rule 102 of CPC have no right to resist the execution of the warrant and are barred from resisting or obstructing the execution of the decree. Order XXI Rule-102 of CPC reads as follows:
102. Rules not applicable to transferee pendent lite.
Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
32. Order XXI Rule 102 clarifies that Rule 98 and Rule 100 shall not apply in a case where resistance or obstruction in execution of a decree for the possession of immovable property is offered by "transferee pendente lite" i.e. the person to whom the property is transferred by the judgment-debtor after institution of the suit, decree of which is sought to be executed was passed. (Sriram Housing Finance & Investment (India) Ltd. v. Omesh Mishra Memorial Charitable Trust 2) 2 (2022) 15 SCC 176 14
33. It is to be noted 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 and rule 102 explicitly bars the third party from resisting the execution pf proceedings.
34. The Apex Court in Silverline Forum (P) Ltd. v. Rajiv Trust 3, has observed that:
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 judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a 3 (1998) 3 SCC 723 15 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.
12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree- holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree- holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. 16
35. It is eventually settled position of law that an application filed under Rules 58, 97 or 99 of Order XXI is required to be decided as though it is a suit, as is evident from the language employed in Rules 58, 101 and 103 of Order XXI. Once an application under this provision is equated to a suit, the procedure prescribed for a suit would apply to the applications filed thereunder. (See: T.N.V. Ravi Kumar Vs. Sumeet Pal Singh 4).
36. It is also noted that the Order XXI Rule 101 of CPC deals with Question to be determined, which was introduced by amendment to CPC in the year 1976. Prior to the amendment, any third party who resisted delivery of possession in execution of a decree had to institute a separate and independent civil suit to assert their rights. The executing court had no jurisdiction to adjudicate upon claims of ownership or possession raised by persons who were not parties to the original decree. Whereas post amendment the executing court is empowered to entertain and decide all questions, including those relating to right, title, or interest in the property arising between the decree-holder and 4 2015 (3) ALT12 17 any person obstructing execution, even if such a person is a third party. As a result of the amendment, all such claims can now be adjudicated within the scope of the execution proceedings and in accordance with the procedure prescribed under CPC. The parties are barred from filing separate civil suits, and the decision of the executing court under these provisions is final.
37. The Supreme Court in Ashan Devi v. Phulwasi Devi5 while dealing with the amendment of CPC in 1976 had observed that:
"It is necessary at this stage to take into account the objects of drastic amendments introduced to the Code of Civil Procedure by Act 104 of 1976. This Court in the case of Shreenath 6 has compared the unamended provisions of the Code in Order 21 and the provisions introduced after amendment. It is noticed that earlier under the Code, the third party "dispossessed" in the execution of the decree was required to institute an independent suit for adjudication of its right and claims. In order to shorten the litigations concerning same properties between same and third parties, claims of third parties to the property in execution are now required to be determined by the executing court itself in accordance with provisions under Order 21 Rule 101 with right of appeal to the higher court against such adjudication treating it to be a "decree" under Order 21 Rule 103 of the Code."5
(2003) 12 SCC 219 6 (1998) 4 SCC 543 18
38. Having regard to the law as enunciated by the Hon'ble Supreme Court, merely on account of amendment to CPC made in order to shorten litigation, it cannot be said that the respondent No.19 herein who having a right to file petition under Order VII Rule 11 of CPC, prior to 1976 amendment has lost such right post 1976 Amendment to CPC.
39. Considering the appellants herein have filed claim petition making a claim to the land held by the tribunal as belonging to the Respondent No.19, the claim petition would have to be considered as plaint and having regard to the provisions of Section 7 and 7A of the Act which categorically states that provisions of the CPC are applicable to Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, to the extent they are not inconsistent with the special enactment and Special Tribunal shall, in the trial of cases before it, follow the procedure prescribed in the Code of Civil Procedure,1908, this Court is of the view that respondent No.19/DHr is entitled to maintain petition.
40. In light of the foregoing discussion, as it is evident that the appellants are claiming title to the subject property through 19 Respondent No.21 / Judgment Debtor (JDR) who had transferred the property during the pendency of LGOP No. 442 of 2003, the same is hit by the doctrine of lis pendence as embodied under Section 52 of the Transfer of Property Act, 1882, and is therefore invalid. Furthermore, as the appellants derive their claim pendente lite, they are barred from resisting or obstructing execution proceedings under Order XXI Rule 102 of the Code of Civil Procedure. Consequently, the claim petition filed by the appellants is not maintainable and the tribunal has rightly rejected the same by allowing the petition under Order VII Rule 11 of the C.P.C by the respondent No. 19n herein.
41. For the aforesaid reasons, this Court is of the view that the Appeal vide LGA. No.1 of 2021 filed by the appellants/respondent Nos.14 and 20 as against the order, dated. 10.02.2021 in E.A. No.40 of 2018 does not suffer from any infirmity or error for being interfered by this Court in the appeal, and thus, LGA. No.1 of 2021 is devoid of merit and is accordingly, dismissed.
20
As a sequel, miscellaneous petitions pending if any shall stand closed. No order as to costs.
____________________ T. VINOD KUMAR, J _________________ P. SREE SUDHA, J Date:04-06-2025 MRKR/VSV