Andhra HC (Pre-Telangana)
Chalugu Basivi Naidu And Ors. vs Chalugu Bheemi Naidu And Ors. on 21 December, 2001
Equivalent citations: 2002(2)ALT186
ORDER P.S. Narayana, J.
1. The unsuccessful petitioners-third parties in E.A. No. 254/98 in E.P. No. 72/97 in O.S. No. 30/85 dated 8-9-2000 on the file of Senior Civil Judge, Chodavaram, are the Revision Petitioners.
2. The Revision Petitioners, as third party objectors filed the aforesaid application under Order 21 Rule 97 r/w. Section 151 of the Code of Civil Procedure, hereinafter in short referred to as "Code", praying the Court to declare that they are not liable to be dispossessed from the schedule lands and for costs. The facts in nutshell are as follows:
The Revision Petitioners-petitioners in the E.A. specified supra - third party objectors, had averred that they are all residents of Vakapalli village, hamlet of Konam village and also Konam, hamlet of Konam village in Chidikada Mandal. It was also averred that the respondents are powerful people both in men and money and they got political influence in the village and that the petition schedule lands are their ancestral properties and their ancestors have cleared up the shrubs and bushes and brought the said lands under cultivation for about more than 100 years back and thus their ancestors and subsequent thereto they have been in continuous possession and enjoyment of the schedule lands to the knowledge of all the villagers including the respondents and thus they have got permanent occupancy rights over the schedule mentioned lands. It was also further stated that the petitioners are poor tribals having small extents of land individually in the schedule lands and their main livelihood is agriculture. The petitioners have perfected their title even by adverse possession. While matters stood thus in the year 1979, the Inspector of Police, Chodavaram apprehending breach of peace filed M.C. Nos. 19/79 and 21/79 on the file of Sub-Divisional Magistrate, Visakhapataam under Section 145 of Cr.P.C. In the above said M.Cs., the first respondent and his brothers and some others were added as "A" party and the petitioners herein and some of the fathers of the petitioners were added as "B" party. The Sub-Divisional Magistrate after full enquiry held that they and their fathers are in possession and they are entitled to continue in the possession and the respondents have no right in asking the possession of the schedule lands. During the pendency of enquiry a receiver was appointed who took the possession of the schedule lands from the petitioners. Against the orders of the Sub-Divisional Magistrate the first respondent and others preferred a revision before the Additional District and Sessions Judge, Visakhapatnam in Crl.R.P. Nos. 21/83 and 20/83 and after hearing the Assistant Sessions Judge, confirmed the orders of the Sub-Divisional Magistrate and also directed the receiver to deliver the possession of the schedule lands to them and further directed that they are entitled to receive the sale proceeds and against the said orders the respondents have not chosen to take the matter to the Appellate Court. So the above said orders have become final and bind the respondents. Accordingly, as per the directions of the Additional Sessions Judge the receiver delivered the possession of the schedule land to the petitioners. So they are in continuous possession and enjoyment of the petition schedule land even till to-day and they alone have got right, title and possession over the schedule lands and that the respondents have no right, title over the schedule lands. As the petitioners and their forefathers are in continuous possession of the schedule lands over a period of 100 years they are asserting their right, title and possession independently over the schedule lands under common law and equity. While matters stood thus on 13-12-1998 when the Court Amin came to the suit village for effecting the delivery of the schedule lands to the respondent under the above said decree which was a shocking news to them, they made an enquiry into the matter in detail and found that the respondents have obtained a decree in the above matter. The defendants in the above said suit who are the respondents in the above E.P. are not in actual and physical possession in the schedule lands. The petitioners 1 to 22 are in possession of the "B" schedule lands and the petitioners 23 to 33 are in possession of the "A" schedule lands. They are enjoying the schedule lands in their own right and to the knowledge of the villagers including the respondents. The petitioners then enquired about the details and existence of the above decree and they reliably learnt that the above decree was obtained by the respondents in collusion with the defendants in the above matter and it is only an ex parte decree. The respondents are trying to evict them from the schedule lands which are in their possession since last 30 years and they are not bound by the decree as they are not parties either to the suit or E.P. and they are third parties who are ascertaining their rights, title and possession independently over the schedule lands.
3. The respondents had filed a counter stating that they filed O.S. No. 30/85 against the Judgment-debtors in the above E.P. for the relief of declaration and also seeking the relief of right to evict them from the plaint schedule properties and the consequential relief to put them in possession of the plaint schedule properties and also for damages and other reliefs. It was also stated that after filing the written statement, the defendants therein had remained ex parte and their counsel reported no instructions during the time of trial in the above suit and consequently the suit was decreed with costs and the defendants in the said suit -Judgment-debtors, had not preferred any appeal and thus the Judgment and the decree in the said suit became final. It was also stated that as Decreeholders they filed the E.P. referred to supra for obtaining delivery of possession of the plaint schedule properties and at the time of execution of the said warrant some of the Judgment-debtors caused obstruction to the delivery proceedings and when it was brought to the notice of the executing Court by the Court Amin, the Court was pleased to issue Hukum warrants against the judgment-debtors and since the obstruction was through the henchmen of the judgment-debtors, they filed an application before the executing Court for providing necessary police assistance to obtain delivery and at that stage the petitioners - third party objectors came with the present application at the instance of me judgment-debtors in the above E.P. only with a view to cause delay in delivery proceedings and to cause inconvenience and hardship to them. It was further stated that the petitioners were never in possession of the plaint schedule property at any point of time and in fact they never obstructed the delivery proceedings and even the Court Amin and his report had not disclosed the names of these petitioners as obstructors and these parties are in no way concerned with the plaint schedule properties and thus the petitioners have no right, title or possession whatsoever over the plaint schedule properties at any point of time. It was also stated that Order 21 Rule 97 of the Code is intended to be invoked by the Decreeholder only and it is not intended to be invoked by third parties and hence the petitioners have no locus standi to file an application under Order 21 Rule 97 of the Code and hence the said application itself is not maintainable.
4. On behalf of the petitioners, P.W.1 to P.W.3 were examined and on behalf of the respondents, R.W.1 was examined and Ex.A-1 alone was marked. The Court below at paragraphs 5 to 8 on appreciation of evidence and after discussing the rival contentions of both the parties had ultimately dismissed the said application and aggrieved by the same, the third party objectors - petitioners in the said E.A. No. 254/98 in E.P. No. 72/97 in O.S. No. 30/85 on the file of Senior Civil Judge, Chodavaram had preferred the present Civil Revision Petition.
5. Sri Srinivas Nagaraj, the learned counsel representing the Revision Petitioners had at the outset vehemently contended that the Revision Petitioners though third party objectors, can maintain an application under Order 21 Rule 97 of the Code and hence it cannot be said that the Decreeholders alone can maintain the application under Order 21 Rule 97 of the Code. The learned counsel also had pointed out that though the Judgment of a criminal Court may not be binding on a Civil Court, definitely it is a relevant piece of evidence to be looked into especially on the aspect of possession and in that view of the matter, Ex.A-1 is a relevant piece of evidence and on the strength of the evidence of P.W.1 to P.W.3 and also Ex.A-1, the court below should have arrived at a conclusion that the Revision Petitioners are entitled to raise the objections for the delivery. The learned counsel also had contended that the view expressed by the court below that Ex.A-1 is not sufficient to establish the possession of the Revision Petitioners is totally an unsustainable finding. The learned counsel also had placed strong reliance on Zafu Javeed v. V. Narasimha Reddy and Ors., , Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr., , Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., , Bhanvarlal v. Satyanarain and Anr., , Arastu Talimi Trust v. Syed Shah Shaujauddin Quadri, , Bhinka and Ors. v. Charan Singh, .
6. Sri K.S.R. Murthy, the learned counsel representing the respondents had contended that even on a reading of the provisions of Order 21 Rule 97 of the Code, it is clear that this application by third party strangers is not maintainable at all since they cannot invoke Order 21 Rule 97 of the Code. Even otherwise, the claim of such strangers at the best can be gone into if any proceeding had been initiated by the decree-holder and not otherwise. In other words, the contention of the learned counsel is that a third party objector can raise an objection only by way of defence to ward-off the threat of being dispossessed and at any rate it cannot be used as a sword by a third party stranger himself initiating the proceedings. The learned counsel also had contended that the proceedings under Section 145 Cr.P.C. or any judgment rendered therein cannot be binding on a Civil Court and at the best it may show possession only at relevant time and at a particular point of time and even otherwise, the evidence placed in this regard is highly insufficient and the court below had recorded clear and categorical reasons while disallowing the application and hence the impugned order need not be interfered with under Section 115 of the Code. The learned counsel had placed reliance on Abul Majid v. Harbansh Chaube and Ors., , Jamsingh and Anr. v. Prafullachandra Trivedi and Anr., , Ram Sumer Puri Mahant v. State of U.P. and Ors., , Jhunamal alias Devandas v. State of Madhya Pradesh and Ors., , Anwarbi v. Pramod D.A. Joshi and Ors., , Shrenath and Anr. v. Rajesh and Ors., , Mst. Jala Bano and Anr. v. State of Jammu & Kashmir and Anr., and Niranjan Singh Sunder Singh and Ors. v. Kasturi Lal and Ors., AIR 1971 P & H 4.
7. Heard both the counsel and perused the material available on record. The main question, which was elaborately argued by both the counsel, is relating to the maintainability of the very application itself under Order 21 Rule 97 of the Code. In fact, both the counsel had drawn my attention to Order 21 Rules 97,98,99 and also 101 of the Code in this regard. Order 21 Rule 97 of the Code dealing with resistance or obstruction to possession of immovable property, reads as follows:-
(1) Where the holder of the decree for the possession of immovable property or the purchaser of any such property sold in execution of a 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 obstruction.
(2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
In the decision referred (1) supra, it was held that not only a judgment-debtor, but also a stranger who is occupying the decretal property is entitled to make objections and the said objections are to be adjudicated under Order 21 Rule 97 of the Code. In the decision referred (2) supra, the Apex Court while dealing with Order 21 Rules 97 and 99 of the Code and 'obstruction by a stranger' held that it cannot be said that he can get his claim adjudicated only after losing possession and he can get his claim adjudicated even prior to losing possession to the decreeholder. In the decision referred (4) supra, it was held that Order 21 Rule 35(3) of the Code applies where the person resisting execution of the decree is bound by the decree, whereas Order 21 Rule 97 of the Code applies where 'any person' resists the execution of the decree. This judgment was delivered by a three Judges Bench of the Apex Court. In the decision referred (3) supra, yet another three Judges Bench of the Apex Court while dealing with the powers of the executing Court and the provisions of Order 21 Rules 35, 97 and 101 of the Code held that resistance or obstruction made even by a third party to the execution of decree can be gone into under Order 21 Rule 97 and Rules 97 to 106 in Order 21 are subsumed under the caption "resistance to delivery of possession to decreeholder or purchaser" and those Rules are intended to deal with every sort of resistance or obstruction offered by any person. In the decision referred (5) supra, in case of resistance in execution of the decree for eviction, it was held that the decreeholder can make an application under Order 21 Rule 97 of the Code complaining of such resistance. However, the learned Counsel for the respondents had placed strong reliance on the decision referred (11) supra wherein it was held that where obstruction to execution of decree was being caused, it was for the decreeholder to take appropriate steps under Order 21 Rule 97 for removal of obstruction and to have the rights of the parties, including the obstructionist, adjudicated under Order 21 Rule 101 of the Code. The learned counsel for the respondents had contended that always the initiation of the proceeding under Order 21 Rule 97 of the Code should be by the decree-holder and at best there can be resistance by way of defence by a third party stranger raising an objection only to ward-off such threat of dispossession and this remedy cannot be used as a sword. No doubt, the learned counsel had made a serious attempt to draw my attention to certain paragraphs in the other decisions of the Apex Court also referred to supra. But however, the view expressed by the Apex Court in the aforesaid decisions on the maintainability of an objection by even a third party stranger under Order 21 Rule 97 of the Code appears to be clear and hence I am of the opinion that even such third party strangers can maintain an application under Order 21 Rule 97 of the Code.
8. The next contention, which had been elaborately argued, is about the insufficiency of evidence. The evidence of P.W.1, P.W.2 and P.W.3 had been recorded and as against this evidence, there is evidence of R.W.1 who is the 1st respondent in the present Civil Revision Petition. It is no doubt true that apart from the oral evidence, except Ex.A-1 no other documentary evidence had been produced. Ex.A-1 is the certified copy of the Order in Crl.M.P. Nos. 21/83 and 20/83 on the file of Additional Sessions Judge, at Visakhapatnam. These proceedings arise out of the proceedings initiated under Section 145 of the Criminal Procedure Code, 1973. As far as the binding nature of the decision of a Criminal Court on a Civil Court is concerned, elaborate arguments had been advanced by both the counsel. In the decision referred (10) supra, it was held by the Apex Court that it is true that in cases of dispute regarding immovable property, a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter and that it does not however mean that a concluded order under Section 145 Cr.P.C. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party had approached the civil Court and an order made under Section 145 Cr.P.C. deals only with the factum of possession of the party as on a particular day and it confers no title to remain in possession of the disputed property. In the decision referred (14) supra, it was held that the Magistrate under Section 145 Cr.P.C. is not called upon to settle any question of title or even of possession as may affect the rights of a party in a Civil Court and he just settles the matter temporarily as to who is in actual physical possession on a particular date. In the decision referred (6) supra, the Apex Court observed that the life of an order passed under Section 145 Cr.P.C. is conterminous with the passing of decree of a civil Court and the moment a civil Court makes an order of eviction, it displaces the order of the criminal Court. Reliance also was placed on Ram Pukar Singh and Ors. v. Sita Ram Mahton and Ors., and also the decision of the Apex Court referred (13) supra. The Apex Court in the decision referred (9) supra held that when a civil litigation is pending for the property wherein question of possession is involved and has been adjudicated, initiation of a parallel criminal proceedings under Section 145 Cr.P.C. would not be justified.
9. Coming to the facts in the present case, as already stated supra, the evidence of P.W.1 and P.W.2 apart from the evidence of P.W.3 is available. No doubt they deposed that these third party objectors - Revision Petitioners have been in possession of the disputed properties since 70 years. Except the oral evidence of P.W.1 to P.W.3 and Ex.A-1, there is no other evidence available on record to establish their contention. It is no doubt true that these third party objectors are non-parties to O.S. No. 30/85. It is also not in dispute that the decreeholders are putting the decree in O.S. No. 30/85 into execution. The court below in fact observed:
"...... To show their possession the petitioners did not file any revenue documents like Adangals to show that they have been in continuous possession and enjoyment of the petition schedule property and more over at the time of delivery of the petition schedule property i.e., by the time the Amin went to the property the petitioners never obstructed and only some of the judgment-debtors in E.P. No. 72/97 obstructed the Amin and the same Amin gave report to this Court. So during the pendency of the execution proceedings the petitioners without having any title filed this type of petition to stop the proceedings of the above E.P."
The court below had mainly decided the aspect 011 the ground that the material produced before the Court by the Revision Petitioners - third party objectors, is highly insufficient to establish their claim and had dismissed the application ultimately. The court below was not inclined to rely on Ex.A-1 mainly on the ground that it is a judgment of a Criminal Court, which is not binding on a civil Court. But however, the parties in Ex.A-1 proceeding appear to be different from the judgment-debtors in the E.P. Apart from this, certain observations had been made relating to the visit of Amin and the nature of objection caused in this regard. For reasons best known, though the Amin is an Officer of the Court and though a presumption may be available in favour of such acts of Amin, it is always desirable that the said Amin also could have been examined by either of the parties or at least as a Court witness, as the case may be. It is no doubt true that the material placed before the Court, especially the documentary evidence is not sufficient to substantiate the objections raised by the petitioners. But however, there is evidence of P.W.1 to P.W.3. It may be oral evidence. But oral evidence also may have to be scanned through with care and caution. In the facts and circumstances and in the light of the findings recorded by the Court below, I am satisfied that in the interests of justice it is better to give opportunity to both the parties to let in further evidence in this regard and in the light of this view expressed by me it is a fit matter to be remitted back to the Court below for the aforesaid purpose.
10. For the foregoing discussion, the Civil Revision Petition is allowed and the matter is remitted back to the court below for the purpose of affording opportunity to both the parties to let in further evidence for the purpose of substantiating their respective contentions. No order as to costs.