Andhra HC (Pre-Telangana)
Katapaga Yadagiri And Ors. vs B. Maheshwar Reddy on 20 March, 2002
Equivalent citations: 2002(6)ALT573
JUDGMENT L. Narasimha, Reddy, J.
1. These two matters arise out of a common order passed by the Court of District Munsif, Shadnagar, Mahabubnagar, in E.A.Nos.13 and 14 of 1983 in E.P.No.5 of 1983 in O.S.No.22 of 1962. C.R.P.No.2199 of 1991 is filed against E.A.No.13 of 1983 whereas A.S.No.469 of 1993 is directed against the order in E.A.No.14 of 1983. Hence, these matters are disposed of by this common judgment.
2. The petitioners in C.R.P. are the appellants in A.S No.469 of 1993. For the sake of convenience, they are referred to as appellants. The respondent is common in the revision as well as the appeal.
3. The appellants are the legal representatives of one K.Pentaiah. He and his brother-K.Lingaiah filed O.S.No.22 of 1962 on the file of the Court of District Munsif, Shadnagar, for the relief of declaration of title and recovery of possession in respect of Ac.42.18 guntas of land in Sy.No.213 to 218 and 235 of Rangareddyguda Village, Balanagar Mandal, Mahabubnagar District, against three defendants by name, Laxma Reddy, Ravinder Reddy and P. Venkaiah. Laxma Reddy and Ravinder Reddy remained ex parte and 3rd defendant-Venkaiah alone contested the suit. The suit was ultimately decreed on 14-9-1964. The matter was carried in appeal by Venkaiah, who filed A.S.No.57 of 1964 in the Court of District Judge, Mahabubnagar. During the pendency of the appeal Pentaiah died. Therefore, the appellants herein were brought on record as his legal representatives. The appeal was dismissed on 17-11-1967. The 3rd defendant filed S.A.No.122 of 1968 in this Court.
4. During the pendency of the second appeal, Lingaiah, the 1st plaintiff, died. Therefore, his wife Narasamma was brought on record as legal representative. Narsamma executed a sale deed dated 17-1-1970 (Ex.A-1) transferring her share in the suit schedule property in favour of the respondent herein. In that sale deed, 3rd defendant-Venkaiah also joined as one of the vendors. The respondent herein filed C.M.P.No.7025 of 1971 to implead him as a party to the second appeal. He along with Narsamma and the appellant in the second appeal filed C.M.P.No.7026 of 1971 to pass a compromise decree to the extent of the share of late K.Lingaiah.
5. This Court dismissed the second appeal through order dated 7-12-1971. While dismissing the second appeal it was observed that the parties can work out their remedies in appropriate proceedings. After disposal of the second appeal, Narsamma as well as Venkaiah, the 3rd defendant, died. It was only in the year 1983 that the appellants herein filed E.P.No.5 of 1983 for recovery of possession of the suit schedule property. In that E.P., they described themselves as the legal representatives of 1st plaintiff-K.Lingaiah as well as 2nd plaintiff-K.Pentaiah. On 27-12-1983, the Nazir of the Court delivered the possession of the suit schedule property to the appellants.
6. The respondent herein resisted the execution by appearing through Advocate when the Nazir came to the spot. He relied upon the purchase made by him under Ex.A-1. He also pleaded that he has been in possession of the entire suit schedule property ever since the date of purchase. His objection was overruled by the Nazir and possession was delivered. Therefore, the respondent filed E.A.No.13 of 1983 praying that the appellants be directed to file an application to remove the obstruction and in the event of their failure to do so, to convert the E.P. itself into an application under Order 21 Rule 97 C.P.C. E.A.No.14 of 1983 was initially filed under Section 151 C.P.C., requesting the Court to restore the possession and later the same was amended to be the one under Rule 99. The Court below closed the E.P. through order dated 31-3-1983 directing the parties to work out their remedies through appropriate applications.
7. While the two applications were pending, the respondent has also filed O.S.No.4 of 1985 in the same Court seeking partition of the suit schedule property between him and the respondents. Various interlocutory proceedings and revisions took place, reference to which is not necessary. However, it emerges that this Court directed that E.A.Nos.13 and 14 of 1983 and O.S.No.4 of 1985 be tried together.
8. Inasmuch as Rule 101, ordains all questions relating to right, title or interest arising between the parties to the proceedings and applications under Rule 97 or 99 be determined by the Court dealing with the application and not by separate suits, the Court below had elaborately considered the matter as though it is a civil suit.
9. In support of his contention, the respondent examined himself as PW-1 and also examined PWs 2 to 7. He filed documents Exs.A-1 to A-11. On behalf of the appellants RWs 1 to 6 were examined and documents B-1 to B-15 were marked. On the basis of the oral and documentary evidence, the Court below through its common order dated 19-4-1991 allowed both the applications. So far as O.S.No.4 of 1985 is concerned, the appellants took objection as to the pecuniary jurisdiction of the Court to try the same. Their objection was upheld by the Court and the suit was returned to be presented in a Court of appropriate pecuniary jurisdiction.
10. Smt. G. Kavita, learned counsel for the appellants submits that once the E.P. was closed it was not open to the respondent herein to file E.A.Nos.13 and 14 of 1983 and the same were not maintainable in law. It is also her contention that inasmuch as the respondent purchased the portion of the suit schedule property during the pendency of the proceedings, such sale was hit by Section 52 of the Transfer of Property Act, and any objection based upon such sale was not sustainable in view of Rule 102 of Order 21 C.P.C. It is her further contention that since the respondent has already filed a suit for partition; he can work out his remedies against the appellants herein. In respect of her contention she relied upon several judgments.
11. Sri P. Pratap Reddy, learned counsel for the respondent, on the other hand, submits that the very purport of Rule 99 of Order 21 is that it enables a person, who is not a party to the suit, to complain and recover possession only after being dispossessed and the closure of E.P. is of no consequence. As far as the principle of lis pendens is concerned, he submits that inasmuch as the respondent purchased the share of one of the plaintiffs, the said principles is not applicable to him. According to him, the joining of the 3rd defendant in the sale deed was only to avoid complications, but the title in respect of the suit schedule property passed on to the respondent only through late Narsamma. He also submits that once it has been found by the Court that the Nazir has exceeded his powers and limits and has taken upon himself to adjudicate upon the rights and it was held that the possession was wrongly delivered, there is no alternative except to restore the possession to those who were dispossessed from it wrongly.
12. The various facts referred to above indicate that there was a decree in favour of two plaintiffs, by name, K.Lingaiah and Pentaiah. The decree became final with the dismissal of second appeal No.122 of 1968. If the state of affairs remained the same as between the plaintiffs and the defendant, there would not have been any problem at all. During the pendency of the proceedings, the 1st plaintiff died. His sole legal representative namely, his wife-Narsamma was brought on record. She executed Ex.A-1, sale deed, transferring her share in favour of the respondent. The appellants, who were parties to the second appeal, were aware of these developments and they did not object to the entitlement or right of Narsamma to execute the sale deed. The compromise that was sought to be recorded could not fructify not on account of any factual controversy, but only in view of the technical non-feasibility as is evident from the order passed by this Court in the second appeal.
13. For reasons best known to them, the appellants kept quiet for about 12 years, after, the decree became final with the dismissal of the second appeal in 1971. They filed the E.P. in the year 1983, by showing themselves not only as the legal representatives of the 2nd plaintiff-K.Pentaiah, but also as the legal representatives of 1st plaintiff, K.Lingaiah. They did not even refer to the factum of the Lingaiah's wife Narsamma, having been brought on record during the pendency of the second appeal. It was not as if they were not aware of the factum of Narsamma being the legal representative of Lingaiah and her having sold her share to the respondent herein. Petitions were filed to their knowledge in the second appeal. Therefore, they were very much aware that the respondent became the owner of the share of Lingaiah through his wife Narsama. The action of the respondents claiming themselves to be the legal representatives of K.Lingaiah, and omission to implead the respondent herein is a classic example of Suggestio Falsi and Suppressio veri.
14. Had the executing Court exhibited the normal prudence while numbering the E.P., all these complications would not have arisen. It was a matter of record that in the suit, the appellants herein were not brought on record as legal representatives of K.Lingaiah. The decree became final only with the dismissal of the second appeal. In the second appeal Narsamma was brought on record as the legal representative of the 1st plaintiff-K.Lingaiah. In between there were no proceedings through which the appellants were declared as legal representatives of Lingaiah. The executing Court did not exhibit the ordinary caution and care and virtually fell into the trap of the appellants. The omission on the part of the Court appears to be more than inadvertent; having regard to its reaction after the matter was brought to its notice.
15. Be that as it may, when the Court Nazir went to the spot with warrant, anticipating the foul play by the appellants, the respondent went to the spot through an Advocate and resisted the delivery claiming that he was in possession of the property on the basis of a sale deed executed by one of the plaintiffs. The minimum that was expected from the Nazir was to report the matter to the Court and seek necessary directions. Instead, he recorded the statements of the appellants, which was not part of his duty. The report of the Nazir reads as under:
"I explained the said Maheshwar Reddy and also his Advocate that I am not vested with powers to record any such statements and give decision and I explained them that on account of the obstruction by a 3rd person, either the D.Hr. has to move the Court for removal of obstruction under Order 21 Rule 97 C.P.C. or if the obstructor is dispossessed he can also move the Court for redelivery under Order 21 Rule 99 C.P.C. but I can not stop my work... The D.Hr. No.3 represented that he is ready to take possession of the suit lands and he is not prepared to move the Court for the removal of obstruction of the said Maheshwar Reddy. As the said Maheshwar Reddy did not produce the alleged registered sale deed and admittedly he had purchased the suit lands from J.D. No.3 only and that too during the pendency of appeal in High Court, I dispossessed J.D.No.5 and wife of J.D.4 and delivered the possession of the suit lands..."
16. When this report was placed before the executing Court, it ought to have framed charges against the Nazir for the outrageous acts of misconduct resorted to by him, which is evident from the report itself.
17. It was for the appellants to file an application under Rule 97 to seek appropriate directions for removal of the obstructions. The Nazir has assumed to himself the whole jurisdiction of adjudication of the rival claims and had delivered the possession. Even when the same was brought to the notice of the executing Court, it has only accorded a seal of approval for the blatant irregularities and gross illegalities committed by the Nazir. The conduct of Nazir as well as the then Presiding Officer, who dealt with the matter, was, in fact, reprehensible.
18. During the course of enquiry into the E.A.Nos.13 and 14 of 1983, oral and documentary evidence was adduced before it.
19. It was elicited through DW-1 that he was aware of the sale that has taken place between Narsamma i.e. wife of 1st plaintiff and the respondent. It was also elicited through him that he was aware of the fact that Narsamma has come on record in the second appeal. His deposition reads as under:
"It is true that since Narsamma as wife of the deceased-K.Lingaiah came on record as the rightful person, we have not objected for it and we have not filed any application to come on record. It is true that we have not filed any application to come on record. It is true that we have not filed any application in High Court claiming rights in the suit schedule properties. It is true that late K. Narsamma and PW-1 have filed a compromise petition in the High Court stating that she sold her rights in the suit schedule properties in favour of PW-1 to the extent of her right. We have not filed any suit for cancellation of the sale deed dated 17-1-1970 executed by Narsamma in favour of PW-1 on the ground that she has no rights in the suit schedule lands. We know that the sale deed was executed by Narsamma in favour of PW-1 in 1970 itself..."
20. During the course of the evidence and arguments the appellants have come forward with a plea that the 1st plaintiff during his lifetime executed a Will in their favour on 4-12-1967 marked as Ex.B-2. Such a plea was not taken in their counters filed to the E.A.Nos.13 and 14 of 1983. This only shows the extent to which the appellants were prepared to go some how or the other to grab the property. It needs to be mentioned that the respondent herein never disputed the right of the appellants in respect of their half. The appellants were only trying to grab the property purchased by the respondent herein from the legal representatives of the 1st plaintiff.
21. Since it is established that the appellants had knowledge of the sale in favour of the respondent and that they were not the legal representatives of late Lingaiah, the very institution of E.P was defective and the same ought not to have entertained. The various acts and omissions of the appellants have also left the right, title and interest of the respondent in respect of the property purchased by him, in tact. When they were aware of this sale, they ought to have impleaded the respondent herein as one of the parties in the E.P. Whatever may have been their justification in not doing so, at least, when the respondent obstructed the delivery on the basis of Ex.A-1, which was very much known to the appellants, as is evident from the record, it was expected of them to file an application under Rule 97. The report of the bailiff indicates that they did not want to file such an application. The reason was not too far to seek. Instead of facing the burden to establish their claim against the respondent in the Court, they have chosen to manage the Nazir.
22. The learned counsel for the appellants placed reliance upon the judgment of this Court in KADALI PULLAYYA v. KADALI NARASANNA, , in support of her contention that the objection memo filed by any person filed under Rule 97 of Order 21, on the basis of a purchase from the judgment debtor during the pendency of the litigation cannot be sustained. She has also relied upon the judgments touching upon the same principle arising out of Section 52 of Transfer of Property Act, namely, LAKSHMANAN v. KAMAL, , SIMLA BANKING & INDUSTRIAL CO. Ltd. v. FIRM LUDDAR MAL KHUSHI RAM, , KEDARNATH v. SHEONARAIN, and DHANSINGH v. SUSHILABAI, .
23. There is absolutely no quarrel with the principle enunciated in these decisions. In fact, Rule 102 itself postulates that no claim or objection based on a purchase from the judgment debtor made during the pendency of the proceedings is sustainable.
24. The question, however, is whether the purchase by the respondent herein is hit by the said principle. Firstly, the purchase made by the respondent under Ex.A-1 was the share of one of the decree holders by name K.Lingaiah through his wife Narsamma. The joining of the judgment debtor in the sale deed was only to avoid complications since the proceedings were pending. Secondly, the sale under Ex.A-1 had made the respondent herein as one of the co-owners or sharers of the suit schedule property. Such a situation does not attract the principle enunciated in the judgments cited above. In fact, the Supreme Court in JAGDISH DUTT v. DHARAM PAL, 1999 (4) Supreme 19 held that in case the property of a co-sharer is purchased by another, the decree gets extinguished to the extent of interest so assigned and the execution could lie only to the extent of the remaining part of the decree. Paragraph 7 of the judgment reads as under:
"When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and not in part of the property."
25. The decree in O.S.No. 22 of 1962 was joint and was for possession of immovable property. The share of one of the coparcener i.e., Lingaiah (1st plaintiff) was sold to the respondent, by the wife of Lingaiah. Therefore, the decree, to the extent of share of Lingaiah stood extinguished. Admittedly, the extent of interest of the coparceners remained undefined and indeterminate. Therefore, the principle enunciated by the Hon'ble Supreme Court is squarely applicable to this case. Accordingly, the E.P. itself could not lie.
26. The second objection that the E.As were not maintainable once the E.P. was closed is equally unsustainable. In fact, the cause of action for a 3rd party to file an application under Rule 99 would arise only after his having been dispossessed.
27. Order 21, Rule 99 reads as under:-
"99.Dispossession by decree-holder or purchaser---(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provision herein contained."
28. The question of an application being filed under Rule 99, before dispossession does not arise. Even if the 3rd party anticipates the threat to his possession and approaches the Court for any remedy before his dispossession, the executing Court cannot entertain any such applications. Rule 100 enables the Court to adjudicate upon the questions as though in a separate suit and pass appropriate orders. Therefore, no exception can be taken either to the filing of the applications or entertaining the same and passing appropriate orders by the Court. In fact, the Hon'ble Supreme Court in its decision in SRI SAMIR SOBHAN SANYAL v. TRACKS TRADE PRIVATE LTD., 1996 (5) Supreme 237 had deprecated the acts of the parties in trying to over reach the Courts and 3rd parties and misusing the process of Court where the possession was recovered in the manner similar to the one in the present case. It was even directed that pending adjudication into applications under Rule 98 and 99, the possession should be restored within 24 hours and heavy costs were imposed against the party who has resorted to such nefarious acts. It was held as under:
Since the letter of the law should strictly be adhered to, we find that high-handed action taken by the respondent Nos.1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from demises property and would say that the status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary."
29. If at all there is a case to which the principle laid down by the Supreme Court in the said case to be applied, the one in hand is the fittest. The appellants, with impunity, with the help of Court Nazir and with full knowledge of the purchase of the undivided share in the suit schedule property by the respondent, have dispossessed the respondent from the suit schedule property and are enjoying the same since last about two decades. They have resorted to gross misuse of the process of Court. I do not see any factual inaccuracy or legal infirmity in the orders passed by the Court. In fact, the effect of the orders of the Court below is not only to restore the possession of the property of the appellants, but also to correct the mistakes committed by it on the earlier occasion on account of the acts of fraud and misrepresentation played by the appellants on the Court. The appeal and the revision are accordingly dismissed. But, in the circumstances of the case, there shall be no order as to costs.
ORDER
1. After the order in A.S.No.469 of 1993 and C.R.P.No.2199 of 1991 was dictated, at the instance of the learned counsel for the respondent, the matter was listed 'for being mentioned'. It is his contention that in view of the orders passed in E.A.No.14 of 1983, E.A.No.13 of 1983 becomes almost redundant and as a matter of fact, the Court below has also not addressed to itself to the relief prayed for in E.A.NO.13 of 1983. In that view of the matter, he submits that the respondent may be permitted to withdraw the E.A.No.13 of 1983, in which case, no orders need to be passed in C.R.P.No.2199 of 1991.
2. The learned counsel for the appellants submits that if the respondent wants to withdraw the E.A.No.13 of 1983, in which the prayer was to require the appellants to file an application under Rule 97 of Order 21 C.P.C. or to convert the E.P.No.5 of 1983 into the one under that provision, the appellants have no objection for the same.
3. In view of the respective submissions made by the learned counsel, permission is granted to the respondent to withdraw the E.A.No.13 of 1983 in E.P.No.5 of 1983. Accordingly, the C.R.P.No.2199 of 1991, which is filed against E.A.No.13 of 1983, becomes redundant and the same is dismissed as infructuous. The order passed by this Court on 18-3-2002 shall be treated as the one in A.S.No.469 of 1993 alone.