Karnataka High Court
Akkatai @ Sujata vs Baburao Sattappa Angol on 20 April, 1995
Equivalent citations: ILR1995KAR1892, 1995(6)KARLJ219
JUDGMENT Venkataraman, J.
1. The original first respondent Baburao Sattappa Angol must have fired the day he let out his house bearing CTS.No.524/A situated at Kulkarni Galli, Belgaum, in favour of Balappa Kadahatti somewhere in 1969. He was in service then and hoping that he would be able to get back the house by the time of his retirement, he appears to have let out the house. Balappa, when he was living in this house, died in 1976 leaving behind him his wife, the present second respondent, 2 sons, respondents-3 and 4, and an unmarried daughter, the present appellant Akkatai. Baburao was to retire in 1983 and possibly being aware of the laws delays initiated proceedings to secure possession of the house so that he could settle down there after retirement by filling an Eviction Petition in HRC. 53/78 before I Additional Munsiff, Belgaum, against respondents-2 to 4. Though he had also impleaded the appellant as a respondent he later deleted her name as she had been married and gone to live with her husband. After contest by respondents-2 to 4 the Eviction Petition was allowed on 4.10.80. Respondents-2 to 4 then preferred a Revision Petition in HRC.R.P.36/81 before the Principal District Judge, Belgaum, That petition was dismissed and respondents-2 to 4 then preferred a Revision Petition before this Court in C.R.P. 63/83. That Petition also came to be dismissed on 9.12.1986 giving time to respondents-2 to 4 to vacate the premises. After the expiry of the time, when the landlord Baburao had to file Execution Petition to secure possession, the present appellant filed a suit in O.S.705/87 on the file of the Third Additional Munsiff. Belgaum, seeking a declaration that she has inherited tenancy rights in regard to the above house from her father Balappa and that she is therefore' a tenant and for permanant injunction restraining Baburao, the decree holder, from taking possession of the suit house on the strength of the eviction order obtained by him against the respondents-2 to 4. She filed an application for temporary injunction and after contest the learned Munsiff rejected that application by his order dated 9.2.88. The appellant preferred an appeal in M.A. 10/88 before the Civil Judge, Belgaum, on 15.2.88. In the meanwhile Baburao filed a petition for execution of the eviction order obtained by him against respondents-2 to 4 in Execution Case No. 26/88 before the Munsiff. The appellant possibly apprehending that the Executing Court may deliver possession of the premises before the appeal filed by her was heard she filed an application under Section 151 C.P.C. in the execution case on 18.2.88 requesting the Court to stay further proceedings in the Execution Petition till the final disposal of the Original Suit No. 705/87 filed by her. The decree holder opposed that application pointing out to the Court of the earlier proceedings which he had taken and about even the dismissal of the application filed by the appellant for a temporary injunction in the original suit filed by her. Unfortunately for the decree holder, the Munsiff proceeded to hold an enquiry on that application treating the same as an application offering obstruction to the delivery of possession of the property sought for by the decree holder.
2. After a detailed enquiry the Executing Court rejected the appellant's application holding that she had neither inherited the tenancy right from her father nor she was in possession of the premises in question. Undaunted by this order the appellant filed an appeal before the Civil Judge in R.A.73/88 and was able to secure an order of stay of execution of the eviction order. The learned Civil Judge, after elaborately considering various contentions raised before him, dismissed the appeal holding that though the appellant had inherited the tenancy right along with her mother and brothers she was not in occupation of the premises after her marriage and that as such she could not offer obstruction to the delivery. He was also of the opinion that the appellant had impliedly surrendered her tenancy rights and that she was therefore not entitled to raise any obstruction to the execution of the order. The appellant has thereafter filed this Appeal. During the pendency of this Appeal the original decree holder Baburao died without realising the fruits of his long drawn out litigation to get back his property.
3. The only substantial Question of Law which has been formulated in this Appeal is as hereunder:
"Whether the appellant herein has lost her tenancy rights by virtue of her marriage even though she was with her father when he died and got married later or there was an implied surrender as found by the first appellate court?"
After hearing both sides I am of the opinion that another substantial Question of Law arises for consideration and that is:
"Whether a person who is not in actual possession of the property in respect of which a decree or order for possession is passed, can maintain an application in the proceedings for execution of the decree or order offering obstruction or objection to the execution?"
4. The learned Counsel for the appellant contended that the learned Civil Judge having rightly held that the appellant had inherited the tenancy right, erred in holding that she had no right to obstruct the delivery as she was not in actual occupation of the premises, that after the amendment of Order 21 Rules 97 to 101 it is not necessary for the obstructor to be in actual possession of the property and that it is sufficient if he has a right to possession. According to him what has to be considered in an enquiry on an application under Order 21 Rule 97 is whether the person resisting delivery has a right to obstruct and not whether he is in possession of the property, He relied upon the Decision of the Supreme Court in TEXTILE ASSOCIATION (INDIA) BOMBAY UNITY v. BALMOHAN GOPAL KURUP AND ANR. , in support of his contention that the order of eviction is not binding on the appellant and as such her tenancy right continues.
Sri G.S. Visweswara, learned Counsel for the appellant, further contended that the appellant who became entitled to the tenancy right would not lose it merely because she goes to her husband's house after her marriage and that there can be no question of surrender of her tenancy right. He also pointed out that the decree holder had nowhere set up a plea of implied surrender of the tenancy right by the appellant.
5. I would first consider the question as to whether a person who offers obstruction or objection to the Execution by filing an application in the proceedings initiated by the decree holder for execution of a decree for possession or eviction order has to show that he or she is in actual possession of the property in question or whether it is sufficient if he or she makes out that she is not bound by the decree and that she has got a right or interest in the property.
6. Order 21 Rule 97(1) provides that, where the holder of a decree for the possession of an immovable property or the purchaser of any such property sold in execution of the decree, is resisted or obstructed by any person in obtaining possession of the property he may make an application to the Court complaining of such resistance or objections.
7. Rule 98. prior to its amendment, provided for the Court directing the applicant to be put into possession of the property after removing the obstruction, if it is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other person on his instigation.
8. Rule 99. prior to its amendment, applied to a case where the obstruction was caused by a bona fide claimant and it provided that where the Court is satisfied the resistance or obstruction was occasioned by any person other than the judgment debtor "claiming in good faith to be in possession of the property" on his own account or on account of some person other than the judgment debtor, the Court shall make an order dismissing the application.
9. Rules 100 and 101. prior to amendment, made provision for a person other than the judgment debtor who is dispossessed of an immovable property by the holder of a decree for possession of such property to make an application to the Court complaining of such dispossession and empowered the Court to restore possession to such person if it was satisfied that that such person was in possession of the property on his own account or on account of some person other than the judgment debtor.
10. Some changes have been effected by the 1976 amendment of the CPC. The present Rule 99 is almost similar to the Rule 100. prior to amendment. The old Rules 98 and 99 have been incorporated with some changes in the present Rule 98 and it reads as hereunder:
"98. Order after adjudication.-(1) Upon the determination of the questions referred to in Rule 101. ths Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2).
(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.
(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days."
11. Present Rule 100 deals with the order to be passed on an application under Rule 99 filed by the person who claims to have been dispossessed by the holder of the. decree for possession, Present Rule 101 is a new provision and it provides that 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 99 and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit.
12. An application under Order 21 Rule 97 is one to be made by the decree holder for removal of the obstruction that may be caused when possession of the immovable property is sought to be delivered to him in execution of the decree obtained by him. Order 21 Rule 99 applies to a case where a person other than the judgment debtor is dispossessed of the immovable property by holder of a decree for possession and such person can make an application for restoration of possession. Thus it is seen that the only applications that are contemplated by Rules 97 and 99 are by the decree holder for removal of obstruction or by a person dispossessed in execution of the decree for possession. The question of the decree holder applying for removal of obstruction in a case where the obstruction or objection is not offered by the person in actual possession of the properly, but by some person who is not in actual possession but who claims a right in the property, would not arise as the decree holder can secure possession by dispossessing the person in actual possession. The necessity for a decree holder applying for removal of obstruction would arise when the person in actual possession causes obstruction to delivery and the decree holder wants that obstruction to be removed and possession to be delivered to him. In such a case the person causing obstruction may be the judgment debtor or someone else on his instigation or someone who is bound by the decree. The obstruction could also be caused by a person who is in actual possession and who claims interest independent of the judgment-debtor and who is not bound by the decree. The obstruction can only be by a person in actual possession of the property. That this must be so can be gathered from the fact that if the decree holder without seeking removal of obstruction manages to get possession in execution of the decree a remedy is provided for the person who is actually dispossessed and who claims interest independently of the judgment-debtor and who is not bound by the decree to seek restoration of possession. A person who is having some interest in the property and who is not bound by the decree, but who was not in actual possession of the property when the decree holder takes possession in execution of the decree, is not provided any remedy under Order 21 Rule 99. If the provisions of Order 21 Rules 97 to 101 are read together it would be clear that it is only the obstruction or objection of persons who claim to be in actual possession of the immovable property which can be investigated in the execution proceedings and not the claim of a person who offers to obstruct or object to the execution though he is not in possession of the property. If it is to be held that even a person who claims some right in the property independent of the judgment-debtor and who is not a party to the proceedings can make an application offering objection or obstruction to the delivery of possession to the decree holder, even though he is not or does not claim to be in possession of the property, then there would be no end to the travails of a decree holder, The object of these Rules is to protect the interests of persons who are in possession of the immovable property having a right independent of the judgment-debtor against dispossession in execution of a decree which is not binding on them, as well as to enable the decree holder securing possession of the property removing any obstruction that may be offered either by the judgment-debtor or by the persons claiming under him and who are bound by the decree. It must be remembered that these proceedings form part of the proceedings in execution of a decree for possession of immovable property or for possession by a purchaser of an immovable property sold in execution of a decree. Persons who are not in actual possession of the immovable property are not given a right to agitate their rights in proceedings in execution of a decree for possession under the guise of an application offering obstruction or objection to the execution.
13. Though there is some divergent opinion among other High Courts on the question as to whether an application can be filed by a third party in the execution proceedings offering obstruction to the delivery without the decree holder himself making an application under Order 21 Rule 97 CPC, so far as this Court is concerned a Division Bench of this Court in PARAMOUND INDUSTRIES v. C.M. MALLIGA , has held that, it is open to the person in possession of an immovable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Rent Control Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued or to obstruct the execution of the delivery warrant and that the Executing Court has to investigate the claim in terms of Rules 98 and 101. It is on the strength of this Decision the Courts below have treated the application filed by the appellant seeking a stay of the execution, as an application offering obstruction under Rule 97 and investigated her claim. In para 13 of the Judgment the Division Bench 'has held as hereunder:
"Keeping in view these basic principles, the provisions of Sub-rule (1) of Rule 35 of Order 21 and Rules 97 to 101, 103 and 104 of Order 21 CPC are to be read and construed. These Rules are to be read together. In that case, it is not difficult to see that these Rules provide for deciding such obstruction or objections in the same manner as a suit and the order passed therein is made appealable. No doubt Rule 99 of Order 21 also provides a remedy to such a person after he is dispossessed in the process of execution. But we are not able to see any justification for denying a person in possession of the property in his own right and not being a party to the order of eviction or a decree for possession, a right to resist the decree for possession or the order of eviction and to have the objections decided before he is dispossessed. As to whether such a person is a party to the decree or not is one of the questions to be decided in such proceedings because, if it is found that he is not a party to the decree, then only the other contention raised by him would arise. If he is held to be a party to the decree, other contentions raised by him would not become relevant for consideration because in that event, he would be bound by the decree. Therefore, in any case, if it is established that his present possession of the immovable property against which a decree for possession is passed, is referable to the judgment debtor only or, in other words, he is not claiming independent right unconnected with the judgment debtor, even though he is not a party to the decree for possession, he must be deemed to be a party to it because, he has no independent right of his own and the present possession of the immovable property concerned in the decree is through the judgment debtor only, and as such, he would be bound by the decree."
Again in para 15 at page 282, the Court observed as hereunder:
"Thus the executing Court can deliver possession if there is obstruction by a person who is bound by the decree by removing such a person. On the contrary, if there is obstruction or resistance by a person who is not made a party to the decree and who claims that he is not bound by the decree and he is in possession of the 'property, the delivery of which is sought, in his own right, the executing Court, without deciding such claim, cannot dispossess him and deliver the property to the decree-holder/auction purchaser. It is a very poor solatium to a person who is in possession of a property in his own right to tell him that he can have his right, title and interest in the property decided after he is dispossessed. It would be nothing but travesty of justice. When the person in possession of immovable property claims that he is not bound by the decree because he is in possession in his own, right, to tell him that the Court cannot examine his contention and it will execute the decree and dispossess him and/thereafter he could file a suit and establish his title, is opposed to the very civilised notions of civil rights of the citizen which include a right, title and interest in, and to immovable property. This would result in obtaining collusive decrees and dispossessing the persons in possession of immovable property in their own right. This will also result in abusing the process of the Court. The endeavour of the Court must be to safeguard against such abuse of the process of the Court so as to avoid any injustice being caused to any party by the acts of the Court, in other words, by reason of exercise of jurisdiction by the Court or by the use of the process of the Court."
14. While answering the first point which had arisen for consideration in that case this Court has held that it is open to the person in possession of an immovable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued or to obstruct the execution of the delivery warrant. It is therefore abundantly clear that it is only a person who is in actual possession of the immovable property in respect of which either a decree for possession or an order for eviction is passed, who can offer his obstruction or objection by filing an application. If a person making such an application is found to be not in actual possession of the property then he or she cannot maintain the application and the Executing Court would be free to proceed with the execution.
15. Sri Visweswara, learned Counsel for the appellant, contended that merely because the appellant is staying with her husband it cannot be said that she is not in possession of the premises though actually her mother and brothers are occupying it. The two Courts have, on appreciation of evidence, recorded a finding that the appellant after her marriage left the suit house and went to live in her husband's house. When the appellant left the suit house to five in the matrimonial house along with her husband and continued to live elsewhere she cannot be said to be in occupation or in possession of the suit premises. This is not a case where the person in possession or occupation goes elsewhere for a temporary stay in which event his animus to possess or occupy the property can continue. But where a person leaves the premises in which he or she has tenancy right with the intention of living elsewhere permanently, the animus possidendi in respect of the premises in question would come to an end and he or she cannot be said to continue in possession or occupation of the said premises. As such Courts below were right in holding that the appellant was not in possession of the disputed house when she filed this application and as such she is not competent to offer any obstruction or objection to the execution of the order. If she has any right or interest in the premises, the remedy open to her was to assert that right in regular suit. In fact the appellant had filed a suit in that regard and after failing to obtain an order of temporary injunction both in the trial Court and in the appellate Court she has withdrawn that suit. It may be noted that in Textile Association's case, relied on by the learned Counsel for the appellant, the son who had inherited the tenancy right from his father along with others had filed a separate suit asserting his right and contending that the decree which had been obtained by the landlord against the other heirs was not binding on him as he was not a party to those proceedings and that he was entitled to possession of the premises. The Courts having found that he had inherited tenancy rights along with others and was not bound by the decree for eviction allowed restoration of possession to him. This Decision cannot be of much help to the appellant to seek any relief in the Executing Court under Order 21 Rules 97 and 98 C.P.C. without showing that she is in possession of the premises.
16. The next point to be considered is whether the appellant lost her tenancy right when she left this house to live with her husband after her marriage. It is no doubt true that by mere marriage the appellant cannot be said to have lost the tenancy right which she had inherited. What has to be considered is as to what is the effect of one of the heirs of the deceased tenants who succeed to the tenancy right leaving the leasehold premises with the intention of permanently living elsewhere.
17. Some arguments were advanced on the question as to whether the heirs inheriting the tenancy right would be joint tenants or tenants in common. While the learned Counsel for the respondents relied on the Decision of the Supreme Court reported in H.C. PANDEY v. G.C. PAUL , to contend that the heirs of the original tenant succeed to tenancy as joint tenants and not as tenants in common, the learned Counsel for the appellant pointed out that in the later Decision in M/s Textile Association's case the Supreme Court after referring to H.C. Pandey's case and another earlier case has observed that in both those cases the validity of a notice issued to one of the joint tenants was considered and that those Decisions would not support the contention that a decree obtained against some of the joint tenants would be binding on the other joint tenant. He referred to Hindu Succession Act and pointed out that the heirs of a deceased Hindu take the estate as tenants in common and not as joint tenants. In the latest Decision in HARISH TANDON v. ADDITIONAL DISTRICT MAGISTRATE, ALLAHABAD , the Supreme Court, after referring to differing views taken in the earlier two Decisions, has held that after the death of the original tenant the tenancy rights devolve on the heirs of the deceased tenant jointly.
18. In the instant case though the appellant had inherited the tenancy rights jointly with respondents-2 to 4, after her marriage sometime prior to 1978 she left this house to live with her husband and she has been living in her matrimonial house as found by the Courts below. The respondents-2 to 4 have continued in occupation of the house. The Appellant has at no time paid any rent nor has she done anything in exercise of her tenancy right. It is seen that though the landlord initiated eviction proceedings as long back as 1978 and the litigation was pending till December 1986 she has not tried to assert her right. It is only when the time for delivery of possession of the premises by respondents-2 to 4 came, she has filed the suit. It is in this background it has to be seen whether the joint tenancy right, which the appellant inherited when her father died in 1976, continues to subsist.
19. Section 111(f) of Transfer of Property Act provides that a lease of immovable property determines by implied surrender. Surrender can be implied from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Implied surrender has its basis on the Doctrine of Estoppel, If a tenant abandons or relinquishes possession of the leasehold premises and the landlord acting on the basis of such conduct of the tenant either takes over possession or where the tenant who has abandoned that premises happens to be one of the joint tenants does something to his detriment there would be an implied surrender of the right of such tenant or joint tenant. There could be a surrender by one of the joint tenants by vacating the premises has been recognised by the High Court of Allahabad in MADHUBALA v. SMT. BUDHIYA AND ANR . In that case the premises had been let out to one Kundan and after his death the landlord filed a suit for ejectment and- for recovery of arrears of rent against the widow and son of deceased Kundan who had continued to occupy the property. The defendants contended that Kundan had other sons and daughters and the suit was therefore bad for non-joinder of necessary parties. The lower appellate Court had held that as the tenancy right had been inherited by the other brothers and sisters of one of the defendants the suit for ejectment against the defendants alone was not maintainabte. Relying on an earlier Decision of that Court wherein it had been held that there can be an implied surrender of tenancy right from unequivocal conduct of both parties and taking into consideration of the facts that only the defendants were living in the property and they had themselves stated that they were the tenants in respect of the property, that none of the other heirs were either living in the property nor had they paid any rent, it was held that that was a clear case of implied surrender of tenancy by the other heirs of Kundan.
20. In the present case, as already seen, the appellant left the premises in question after her marriage to live with her husband and the premises continued in occupation of only respondents-2 to 4. The appellants cannot be said to have had any intention of living in the premises after her marriage and going to her husband's house. In effect she has given up her joint possession of the leasehold premises. The first respondent Baburao has specifically stated in his evidence that though he had originally impleaded the appellant also as respondent in the Eviction Petition, because the appellant after her marriage had gone away to her husband's house he got her name deleted. This means that the first respondent has acted on the conduct of the appellant in leaving the petition premises and going to live elsewhere and restricted his claim for eviction only against the respondents-2 to 4 who were in actual occupation of the premises. This conduct of the appellant and the first respondent could give rise to an implied surrender of the joint tenancy right of the appellant. The appellant who by her conduct induced the first respondent to seek eviction of only respondents-2 to 4 who were in actual possession of the premises, is estopped at this stage from seeking to assert her rights. The learned Civil Judge was justified on the facts and circumstances of this case inferring implied surrender of joint tenancy rights by the appellant.
21. With regard to the grievance that the first respondent has not taken up a plea of implied surrender, it may be noted that the proceedings have not been commenced by the appellant filing the plaint and the first respondent filing a written statement. The proceedings have commenced by the appellant just filing an application under Section 151 CPC seeking stay of the execution, pending disposal of the suit filed by her and the first respondent had filed only his objections to the prayer for stay of proceedings. However the Court has subsequently treated that application itself as one under Order 21 Rule 97 CPC and proceeded to decide the matter. There was no occasion for the respondent to putforth his case against appellant's claim. If on the basis of the evidence on record implied surrender can be inferred, then it would be wholly unjust to decline to draw such an inference on the ground of absence of a specific plea in that regard.
22. The appellant has to fail both on the ground that she was not in possession of the premises when she filed the application and as such she has no competence to offer obstruction or objection to the delivery and also on the ground that her joint tenancy right has come to an end by implied surrender.
23. For the above reasons this Appeal is dismissed with costs.