Madhya Pradesh High Court
Hamid Khan Ansari vs Lilabai And Ors. on 5 March, 2004
Equivalent citations: 2004(3)MPHT58
Author: S.K. Seth
Bench: S.K. Seth
ORDER S.K. Seth, J.
1. This First Appeal arises out of the order passed by the Additional District Judge, Agar, in Execution Case No. 39/98 pending between respondent Nos. 1 to 3 and respondent Nos. 4 to 11 herein who are decree holders and judgment debtors respectively.
2. Few facts those are relevant for disposal of this appeal are as under :-- Predecessor in title of respondent Nos. 1 to 3 Mukundram filed a suit for specific performance of contract in respect of an open piece of land admeasuring 19 x 49 ft. situated on Survey No. 191, in Village Soyatkalan, Tehsil Agar, District Shujalpur. The suit was instituted on 1-8-1990. Trial Court decreed the suit on 23-7-97, Against the judgment and decree predecessor in title of respondent Nos. 4 to 11 Balchand filed a First Appeal No. 330/97 in this Court and obtained a stay order. This Court on 1-8-2001 ultimately dismissed First Appeal. Upon dismissal of the appeal the execution proceedings started. Despite deposit of balance consideration and upon failure of respondent Nos. 4 to 11 to execute a sale deed in favour of respondent Nos. 1 to 3, on 14-2- 2003 the Executing Court executed the sale deed in favour of respondent Nos. 1 to 3. Possession warrant issued by Executing Court for delivery of vacant possession of suit land was obstructed by the judgment debtors particularly the female members as a result possession could not be delivered to the respondent Nos. 1 to 3. On 15-9-2003 an application was moved on behalf of present appellant contending inter alia that he had forcibly dispossessed Balchand about 17-18 years ago and had constructed a garage on the portion of land admeasuring 15 x 12 ft. and since then is running a garage. Appellant also claimed that on account of hostile possession, he has acquired title over the portion of land admeasuring 15 x 12 ft. by adverse possession. Appellant, therefore, filed application under Order XXI Rule 97 and claimed adjudication of his right to protect his possession. A detailed reply to the said application on affidavit was filed on behalf of respondent Nos. 1 to 3 denying the claim of appellant. It may be noticed that the application filed by the appellant was not supported by any affidavit, therefore, upon getting reply of respondent Nos. 1 to 3, appellant became wise and filed an affidavit on 27-9-2003. After hearing learned Counsel for parties Court below rejected the application holding that the appellant has made out no case for any enquiry and adjudication, and the application filed is wholly frivolous and vexatious. It is against that order this appeal has been preferred as mentioned hereinabove.
3. Ku. Vandana Kasrekar, learned Counsel appearing for appellant with the help of decision of Supreme Court Brahma Dev Choudhary v. Rishikesh Prasad Jaiswal and Ors., reported in AIR 1997 SC 856, submitted that an enquiry/investigation is a must by the Executing Court before adjudicating the claim of obstructer when execution of decree for possession is pending before the Executing Court. According to learned Counsel, the moment third party or stranger to a decree files an application resisting execution for delivery of possession, recording of evidence is sine qua non for adjudicating claim of such party. On the other hand Shri B.L. Pavecha, learned Senior Counsel relied upon decision of the Supreme Court Silver Line Private Limited v. Rajiv Trust and Anr., reported in AIR 1998 SC 1754, and contended that if the application filed to resist the execution of decree for possession on the face of it does not make out any case, then in such a case, no enquiry is needed.
4. After hearing learned Counsel for parties at length and on due consideration of material available on record, I find force in the submission made by Shri Pavecha on behalf of respondent Nos. 1 to 3. The decision of the Supreme Court in Brahma Dev Choudhary (supra) is not an authority for the proposition that recording of evidence is a must for adjudicating the claim of stranger or third party who is trying to resist the execution of decree for delivery of possession. What it lays down is only this that the Executing Court must first adjudicate upon the objection on merits under Rule 97 (2) of Order XXI, CPC without insisting that the possession must be handed over first and application under Order XXI Rule 99 of the CPC be moved later on complaining about dispossession. Brahma Dev's case (supra) does not help or advance the case of appellant. At this is stage it would be profitable to point out that a Full Bench decision of this Court in Usha Jain's case (AIR 1980 MP 146) took a view that a stranger claiming to be in possession has no locus to force an enquiry into his rights after a warrant of possession is issued and such enquiry is contemplated only after he is dispossessed pursuant to a decree for possession and his remedy lies in filing of separate civil suit. This view of the Full Bench held the field till the decision of the Supreme Court reported in AIR 1995 SC 358, wherein it was held that an objection can be filed and entertained by the Executing Court under Order XXI Rule 97 while executing the decree for possession. A similar view has been reiterated in AIR 1998 SC 1827, wherein the view taken by the Full Bench (supra) was expressly overruled. A similar view has been reiterated in AIR 1997 SC 856 and AIR 1998 SC 1754; (2002) 7 SCC 50 and lastly, (2001) 8 SCC 187. In none these decisions it was held that recording of evidence is sine qua non for the adjudication of application filed by third party to decree for delivery of possession. In this connection, what Supreme Court in Silver Line case (supra) has held, is of great significance. The Supreme Court held as under :--
"It is clear that Executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order XXI, Rule 97 (2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary."
(Emphasis is added)
5. Now coming back to the case in hand, appellant claims to have perfected his title by way of adverse possession. Even if averments made in the application are accepted on its face value, then appellant might have come into the possession somewhere in 1986. Counting the period for adverse possession from 1986, the appellant could claim to acquire adverse possession only in the year 1998 and not prior thereto. The suit was pending since 1-8-1990 and in fact a decree in favour of plaintiff Mukundram was passed by the Trial Court on 23-7-1997. At this stage it may be proper to refer to decision of Privy Council in Lala Hem Chand v. Lala Peary Lal and Ors., reported in AIR 1942 PC 64, to ascertain the consequences of acquisition title by way of adverse possession and it was held as under :--
"If the owner whose property is encroached upon suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession."
6. Thus, rights of owner of property can be extinguished either by conveyance or by operation of law and in view of the law enunciated by the Privy Council it would mean as if the rights of the owner of a property has been extinguished, which is equivalent to passing of title through a conveyance.
7. Now coming back to the case in hand, the possession of the appellant during pendency of the suit would be that of transferee pendente life. Appellant would be covered by doctrine of lis pendence, which is recognized under Section 52 of the Transfer of Property Act. The possession of the transferee pendente life qua Rule 102 of Order XXI has also been noticed by the Supreme Court in Silver Line case (supra), and it was held as under :--
"It is true that Rule 99 of Order XXI 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 proceedings 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 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 life of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a 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."
(Emphasis is added)
8. In support of his claim appellant has not filed any documents to show that he is in possession and is running a garage on a portion of suit land. No licence, no electricity bill, no permission to set up the garage to establish the possession, have been filed in support of the claim. Even from the report of Sale Amin who had gone to deliver the possession on 20th July, 2003 it is clear that the entire piece of land is in open land. If the appellant was really in possession and was running a garage then he must be aware of the decree which was passed against the predecessor in title of respondent Nos. 4 to 11 as undisputedly even prior to 20th July, 2003 Sale Amin had visited the plot for delivery of possession which was resisted by the family members of judgment debtors. All the while appellant was sleeping and he like Rip Van Winkle woke up from his deep slumber only on 15-9-2003 when he filed application-rejecting execution of decree.
9. Considering the case from every angle, I find force in the submission of Shri Pavecha that the appellant has colluded himself with judgment-debtors and have been set up by them to resist the execution of decree. Application filed by the appellant is absolutely frivolous and on the face of it does not disclose any legal right to obstruct delivery of possession so as to warrant recording of evidence. The Court below has rightly dismissed it after affording opportunity of hearing. I find no force, merit or substance in the appeal and the same is dismissed. Appellant shall bear cost throughout. Counsel fee Rs. 2000/- (Rupees Two thousand) if certified.