Patna High Court
Mohammad Akhtar And Ors. vs Ramhars Chaturvedi And Anr. on 27 May, 1988
Equivalent citations: AIR1989PAT80, AIR 1989 PATNA 80, (1989) 1 CIVLJ 658 1989 BBCJ 63, 1989 BBCJ 63
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This Miscellaneous second appeal at the instance of the third party claimant raises an interesting question of law.
2. The facts of the case are as follows : --The respondent first set of this miscellaneous appeal instituted a money suit for realisation of a sum of Rs. 1400/- together with an interest thereon in the court of munsif 2nd court at Sasaram which was registered as Money Suit No. 36 of 1970. The said suit was decreed ex parte. The respondent first set --decree holder put the said decree in execution wherefor a case was registered being execution case No. 41 of 1970. The said decree holder prayed for satisfaction of the decree by putting plot Nos. 584 and 623 appertaining to Khata No. 10, plot No. 1103 appertaining to Khata No. 318 and plot Nos. 1106, 1102 and 1109 appertaining to khata No. 317 measuring an area of two acres and forty six decimals of land in auction.
3. The said property was later on put on auction and the same was purchased by the decree holder himself. The possession of the aforementioned property thereafter was delivered by the Nazir of the court in favour of the decree holder-respondent first set on 15-9-1974.
4. According to the appellants, the aforementioned properties were jointly recorded in the name of the appellants and the respondent 2 and accordingly, the respondent 2 had only a definite share in the said properties.
According to the appellants, they having come to team about the aforementioned auction sale, filed an application purported to be under Order 21 Rule 100 of the Civil P.C. (hereinafter to be referred as the 'Code') that they being the co-sharer in respect of the properties in question have been illegally dispossessed.
5. Upon the said application a miscellaneous case being Miscellaneous Case No. 101 of 1974 was registered and the executing court upon taking evidence and upon hearing the parties came to the finding that no actual delivery of possession was ever effected on the spot and the appellants were never dispossessed from the disputed house or land which formed part of the execution proceeding.
6. By an order dt. 23-5-1980 the said executing court held as follows : --
"Besides neither the D. P. has been brought on the record nor the Nazir nor the peon nor any of the witnesses of the alleged D. P. has come forward to support the factum of actual D. P. on the spot. Thus the alleged D. P. remains quite doubtful. For the reasons stated above I hold that actually no D. P. was effected on spot with respect to the disputed properties and (sic) the appwards (sic), even it dispossessed only in the eyes of law (sic), are hereby, put in possession of the disputed properties. The misc. application u/O. 21 Rule 100 is, therefore, allowed and the misc. case is disposed of accordingly."
7. The respondent first set thereafter preferred an appeal in the court of the District Judge, which was registered as Miscellaneous Appeal No. 8 of 1980. The said appeal was later transferred to the court of Subordinate Judge, Bhabhua. By a judgment dt. 1st April, 1985 the first appellate court reversed the aforementioned order dated 23-2-1980 passed by the executing court and held that as the appellants were not actually dispossessed the provisions of Order 21 Rule 100 of the code had no application to the facts and circumstances of this case.
8. Mr. Dhrub Narain, the learned counsel appearing for the appellants, stated before me that there is no direct decision on the point.
9. The learned court below by. his impugned order held that symbolical possession or juridical possession is outside the ambit of an enquiry in terms of Order 21 Rule 100 of the Code. The learned court below, in this connection, has referred to AIR 1935 Pat 253, AIR 1954 Mad 516 and AIR 1955 Trav. Co. 225 (FB).
10. The learned counsel appearing for the appellants, submitted that the appellants are co-sharers of the judgment debtors and as such they would be deemed to be in joint possession of the properties along with the judgment debtor. The learned counsel, therefore, contends that any dispossession, which might have taken place so far as the judgment debtors are concerned, in the eye of law would amount to dispossession of all his co-sharers and in such an event the appellants were entitled to file an application in terms of Order 21 Rule 99 of the Code.
Order 21 Rule 99 of the Civil P.C. reads as follows : --
"Dispossession by decree-holder or purchaser-(1) Where any person other than the judgment-debtor is dispossessed of immoveable 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 provisions herein contained."
11. There appears to be some conflict in the decisions of various High Courts. Order 21 Rule 99 contemplates physical possession and not juridical possession. The scope and ambit of an enquiry under the said rule was to make an enquiry whether the applicant was in actual possession (whether jointly or exclusively) on the date of dispossession.
12. In Ishari Ram Paneri v. Ganga Bhagat AIR 1965 Pat 509 at page 510 this court has held that in case of co-owners also the one in actual possession is to be restored to physical possession after being dispossessed jointly with the auction purchaser, if the judgment debtor was a co-sharer with the applicant who had been so dispossessed.
In the said decision it has been held as follows : --
"Upon the question of dispossession learned counsel has contended that an application under Order 21, Rule 100 can be filed by a person whose khas possession had been disturbed and not by a person whose possession had been disturbed by juridical conception. There can be no quarrel about this proposition of law."
13. In Re: Tapan Bhattacharjee reported in (1983) 87 Cal WN 546 at p. 549 it has been held that in order to be entitled to file a petition under the said rule the petitioner was required to be dispossessed from the disputed property first and before being dispossessed he cannot file any petition under the said rule.
Similar appears to be the proposition of law in a decision of this court in Daroga Prasad Sahu v. Bhagwati Prasad Singh reported in AIR 1935 Pat 253.
14. Further an alleged delivery of possession to the decree holder or auction purchaser will not amount to dispossession of the property in possession; it must be shown that the applicant was actually dispossessed of the property as the cause of action for such an application arises only after the actual dispossession and not prior to the same.
Reference in this connection, may be made to Kesavan Padmanabhan v. Neel Kantan Narayanan AIR 1955 Trav. Co. 225 (FB) and Gostha Behari Dey v. Indra Chandra Dey AIR 1933 Cal 144 (2).
In Ram Kishun Singh v. Damodar Proshad AIR 1924 Pat 506 and Radha Gobind Misra v. Raghunath Misra (1913) 18 Cal LJ 138 : (AIR 1914 Cal 186). It has been held that if a co-owner or a member of an undivided family is dispossessed in execution of a decree against another co-owner or coparcener, he may apply under Rule 101 of the old Code to be put in joint possession with the decree holder or the auction purchaser; but he cannot claim to be put in possession of specific portion of the property as the court cannot adjudicate upon such question of title under this rule.
However, recently a learned single judge of this court in Patna Public School v. Dr. Sharda Ranjan Prasad Sinha. 1987 BLJR 504 has held as follows : --
"In that also there was no mention anywhere that the real tenant is the school. The final aspect of the matter is that the terms of Order 21 Rule 101 of the Civil P.C. says that a suit in order to establish the claim of a person who is not a party to the decree is not maintainable. Prior to the amendment of the Civil P.C. a suit could lay in terms of Order 21 Rule 103 of the Civil P.C. as it stood then. After the amendment such powers have disappeared. I have already taken this view in certain decisions in the past and I do not see any reason to deviate now."
15. However, the correctness of the aforementioned decision although open to question, in my opinion, in the facts and circumstances of this case it is not necessary to decide the said question.
16. Order 21 Rule 99 as amended by Civil P.C. (Amendment) Act, 1976 is in effect and substance, the same as was Order 21 Rule 100 of the Civil P.C.
17. From a plain reading of Order 21 Rule 99 of the Code, it is evident, that when a person other than a judgment debtor is dispossessed of the immovable property; such a person (other than the judgment debtor) may make an application under the aforementioned provisions complaining of such dispossession only when he is dispossessed therefrom.
18. The word 'dispossession' in the teeth of the said provision must be held to mean actual dispossession; even if a symbolic possession is effected to the auction purchaser the same will not amount to dispossession unless the judgment-debtor himself was in such symbolic possession of the property in question and auction purchaser is given delivery of the applicant's right of such possession.
19. In the instant case, both the courts below have concurrently held that actually no delivery of possession was effected and in that view of the matter the appellants cannot be said to have been dispossessed. It is the case of the appellants that actually no delivery of possession was effected nor were they dispossessed from the property in dispute and they filed the said application only because a cloud has been cast over their interest and possession.
20. In my opinion, on the basis of such a pleading the appellants could not have maintained an application under Order 21 Rule 99 of the Code.
The reason for my holding so is evident from Order 21 Rule 100 of the Code in terms whereof the executing court while allowing such an application may direct upon the determination of the question referred to in Order 21 Rule 101 of the Code, that the applicant be put into possession of the said property.
21. In a case like this where the applicant has not been dispossessed at all the question of his being put back in possession does not arise.
22. In this view of the matter, I am of the opinion that Order 21 Rule 99 of the Code has no application to the facts and circumstances of this case.
In this view of the matter, the impugned order, in my opinion has to be affirmed.
23. In the result, this Second Miscellaneous Appeal is hereby dismissed but without any order as to costs.