Kewal Krishan And Ashok Kumar Sons Of ... vs Shri S.P.S. Bhullar on 1 July, 2013

[Cites 5, Cited by 2]

Punjab-Haryana High Court

Kewal Krishan And Ashok Kumar Sons Of ... vs Shri S.P.S. Bhullar on 1 July, 2013

1. The revision is against the order upholding a third party objection to an execution petition filed by the decree holder in an ejectment action under the East Punjab Rent Restriction Act. The Executing Court was upholding the objection of the third party- Civil Revision No.3540 of 2002 (O&M) -2- objector holding that the property which was sought to be executed for delivery belonged to the objector and that he could not be ejected physically and the execution application cannot be further pursued. II. The width of adjudicatory exercise

2. The property in dispute was a house in Door No.2109, Sector 15-C, Chandigarh. The execution was with reference to a predicated half share of the house which had been claimed by the decree holder to have been rented out initially to one Roop Lal. It appears that when the petition was pending, a third party by name Gopal Dass (decree holder's husband's brother) sought for impleadment but the same was rejected by the Rent Controller and ultimately an order of eviction was passed on 08.03.1989. It was this order of eviction which was sought to be executed through an execution petition filed in the year 1998. At that stage, the objector Satinder Pal Singh Bhullar sought for an adjudication on the right and title of the decree holder to put the order of eviction in execution on a contention that he was a purchaser of the property from one Balwinder Singh on 18.10.1995, who, in turn, had earlier purchased the property from one Gopal Dass on 03.07.1989. In effect, third party was contending that the half share which was being put in execution was indeed a half share which belonged to the share of Gopal Dass. As a third party objection petition, the case was required to be decided on whether the person, who claimed as an Civil Revision No.3540 of 2002 (O&M) -3- objector, had a right to be retained in possession and cause an obstruction to a decree holder.

3. The Executing Court on considering the documents filed by the parties found that the property had been originally allotted by the Estate Officer, Chandigarh Administration to the decree holder Veeran Devi and Gopal Dass jointly and a sale deed had been executed in their favour jointly and subsequently, the property had transferred hands first through a transaction in favour of Balwinder and M/s Jasbrinder Ahluwalia on 03.07.1989 and still later, the subsequent transfer had taken place in favour of the objector. The decree holder Veeran Devi died in December 2001 and the objector's predecessor Gopal Dass died in the year 1997.

III. Principal contentions by revision petitioners

4. Against the order upholding the objectors' claim that they were entitled the half share and that the property could not be delivered to the legal heirs of the decree holder, namely, her sons, the amicus curiae echoes the contentions as reflected in the pleadings and gives a legal flavour on the following lines: (i) the objector was a transferee pendente lite and consequently, an objection cannot be a subject of adjudication under Order 21 Rule 102 CPC; (ii) The Executing Court is bound to execute the decree and deliver possession of the property and cannot go behind the decree and render an adjudication on title to the property; (iii) The Civil Revision No.3540 of 2002 (O&M) -4- judgments between the third parties not inter parties cannot be relied upon and they are wholly irrelevant under Section 43 of the Evidence Act; (iv) The transactions of sale are hit by lis pendens and, therefore, they are wholly inadmissible to operate to create any interest in favour of the objector.

(i) Objection to maintainability of objection-Area of operation of interdict under Order 21 Rule 102 CPC.

5. I am unable to verify from the documents as to when exactly the rent petition was filed. I take it that the decree was obtained on 08.03.1989. The amicus curiae relies on Usha Sinha Versus Dina Ram and others-(2008) 7 SCC 144; Silverline Forum Private Limited Versus Rajiv Trust and another-(1998) 3 SCC 723, and certain other High Court decisions as going to support the plea that the objection petition was not maintainable under Order 21 Rule 102 CPC. The language of the relevant provision is, "nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person." The interdict which Rule 102 CPC contemplates a transfer of the property by the judgment debtor after the institution of the suit in which the decree was passed or to the dispossession of any such person. In this case, the objector does not claim under the judgment debtor tenant but he sets up title Civil Revision No.3540 of 2002 (O&M) -5- to one Gopal Dass on a plea that Gopal Dass was a joint allottee with the decree holder and subsequently a sale deed had also been made jointly along with Veeran Devi by the Estate Officer, Chandigarh Administration. Rule 102 CPC will not, therefore, be attracted at all.

6. The learned counsel (Amicus Curiae) contends with passion that the transfer which Rule 102 CPC contemplates must include a transaction by a person, who has delivered the property to a third party as well. According to her, the judgment debtor-Roop Lal had actually delivered the property to Gopal Dass and allowed for Gopal Dass to sell the property subsequently and put the subsequent purchasers to possession. I do not find any such basis for a contention to raise by the decree holder that the tenant Roop Lal had delivered possession of the property to Gopal Dass. On the other hand, Roop Lal has expired in the year 1989 itself soon after the decree and even at that time when the decree was put in execution, the legal representatives of Roop Lal were not present to cause any obstruction. The person, who was causing the obstruction was a person, who was claiming independently through Gopal Dass in whom the third party objector is setting up title. The contentions that the objections could not be raised in view of Rule 102 CPC is clearly untenable.

Civil Revision No.3540 of 2002 (O&M) -6-

(ii) Executing Court cannot go behind decree-precept does not apply if adjudication is forced at the instance of a 3rd party

7. The contention that the tenant-Roop Lal had delivered possession of the property to Gopal Dass, even if it was true and the person to whom the property is actually put in possession by Gopal Dass causes an obstruction and forces an adjudication, the Court is bound to render an adjudication having regard to the right, title and interest of the person, who causes an objection and the effect of order passed which has the force of decree in terms of under Order 21 Rule 103 CPC. The question which the Court will determine under Rule 101 CPC is not merely an issue of whether the decree holder was entitled to possession but it is actually a determination of a right of a third party to cause an obstruction. If a third party objector does not claim under the judgment debtor, who, in this case, is the tenant-Roop Lal, then an Executing Court is bound to render an adjudication on whether the third party has any right other than through the judgment debtor. If such a right is asserted, a further process in execution and delivery cannot be made if that objection leads to a finding that the person who is causing an obstruction has actually a right to the property. Inevitably, therefore, the Executing Court shall treat the matter as a point open for full-fledged litigation on title and at that time, the Executing Court does not merely act to execute the decree, when it cannot go behind the decree, but it has Civil Revision No.3540 of 2002 (O&M) -7- perforce to adjudicate on title which a third party sets up. The principle that the Executing Court will not traverse beyond the decree, a point which was forcibly placed by the counsel appearing for the petitioners by relying on Vasudev Dhanjibhai Modi Versus Rajabhai Abdul Rehman and others-AIR 1970 SC 1475(1); Dhurandhar Prasad Singh Versus Jai Prakash University and others-(2001) 6 SCC 534 will have to be understood as a precept applicable if the objection is of a judgment debtor or a person claiming under him. The Court at that time will just enforce the decree without allowing the parties to set up any issue regarding the validity of the decree. However, when the objection is by a third party, then the objection must be determined on the issue of title and there the Executing Court is verily the adjudicator of title between two parties setting up rival contentions regarding title. The provision under Rule 101 CPC was actually introduced through an amendment Act 104 of 1996 to quell the need for parties to seek an independent forum through independent suit for determination of title. Prior to amendment, the nature of disposition had to be merely summary and if an obstruction was upheld, then a suit had to be filed to prove a right to be in possession. It is not any longer necessary and by empowering the Court at the stage of execution to determine question of title, Order 21 Rule 103 CPC substitutes the effect of the order as a decree and invests the same with the status of the Civil Revision No.3540 of 2002 (O&M) -8- order with all characteristics of a civil decree obtained on a full- fledged civil adjudication.

(iii) Examination of claim to title by 3rd party-effect of judgments not inter parties.

8. If we must examine whether third parties were having a right to object, then it is borne out through records that there had been a suit originally at the instance of Balwinder (purchaser from Gopal Dass) for an injunction against Veeran Devi (Decree Holder) in the year 1989. A written statement has been filed by Veeran Devi which is read to me in Court that states that judgment debtor was not in possession of the property at all and that she has taken possession of whole of the property and only subsequent to the purchase by Balwinder, he was attempting to forcibly enter upon the property. This truly gives a lie to the entire contentions of the decree holder that the judgment debtor delivered possession of the property to Gopal Dass (the contention that has been discussed in para 6 above) and, therefore, the Court which had originally rejected Gopal Dass's attempt to be impleaded as a party could not give yet another opportunity to Gopal Dass' purchaser to force his entry into the possession. On the other hand, it seems clear that the execution process itself was an attempt to secure a new right of enlarging her own entitlement to property more than what she has secured through an allotment and sale from the Chandigarh Administration. The letter of allotment and the deed of sale of the Chandigarh Civil Revision No.3540 of 2002 (O&M) -9- Administration to Veeran Devi and Gopal Dass have been filed as exhibits. It will be too late in the day for Veeran Devi or persons claiming under her to deny the effect of joint allotment and sale in favour of Veeran Devi and Gopal Dass and to contend that Gopal Dass has no right in the property. A dismissal of the petition for impleadment by Gopal Dass cannot foreclose an adjudication regarding title of Gopal Dass or his successor in interest. In an action for ejectment before the Rent Controller, the adjudication has to be necessarily only between a person claiming to be a landlord and a tenant. A third party intervention cannot be permitted at all. Consequently, if Gopal Dass had not been impleaded that cannot be used later when a third party was setting up his right to Gopal Dass and cause an obstruction by setting up title in such co-owner.

(iv) Judgments relied on are between parties or predecessors and hence not merely relevant but also binding

9. The contention also is that several judgments which are relied on by the defendants are irrelevant for the case. The counsel makes reference to relevance of judgments as outlined in Sections 41 to 43 of Evidence Act and relies on State of Bihar Versus Radha Krishna Singh-(1983) 3 SCC 118 to support the plea of the revision petitioners. Judgments not inter partes, may still be relevant under Section 8 of the Evidence Act, if there is any evidence that a right was previously asserted. The previous judgment which the objector is relying on is not judgment between third parties but the Civil Revision No.3540 of 2002 (O&M) - 10 - respondent is actually relying on a suit which his predecessor had filed for injunction against the decree holder herself where he was asserting for a right as a purchaser to be protected in his possession. The injunction suit had been decreed. The subsequent proceeding which the respondent is relying on is a suit for partition which he himself filed during the pendency of proceedings because the purchase was only in respect of a half share and not a specific half share by metes and bounds. However, it turned out that the parties were actually in possession of the specific portions of the property, but since in the earlier suit, the Court had held that decree holder could take a symbolic delivery of the property, it has become necessary for the objector to also seek for a partition of the property. It appears that there is also a preliminary decree for partition and final decree proceeding has been pending.

(v) Principle of lis pendens wrongly understood

10. The counsel has also an argument that all the transactions of sale are lis pendens and, therefore, cannot be taken notice of. The principle of lis pendens does not invalidate any transaction. On the other hand, it makes it subject to the result of a litigation which is already in place. This can be applied only for transactions between parties. The learned counsel again seeks to contend that Section 53 of the Transfer of Property Act does not use the expression 'transfer by a party'. It contemplates a transaction Civil Revision No.3540 of 2002 (O&M) - 11 - which must include a transaction of judgment debtor putting a third party in possession. I have already observed that the judgment debtor was never stated to have delivered the property either to Gopal Dass or the persons, who are causing obstruction. On the other hand, in the written statement filed by the decree holder to the suit filed by Balwinder, it was the contention that she was herself in possession of the property soon after the decree in the year 1989 and Balwinder had attempted to forcibly take possession and has filed a suit and obtained a relief of injunction. If the third party forcibly enters and resists the property from being delivered, the decree holder cannot still gloat over the decree and claim that such a decree will protect her claim even against the actual owner of the property. The principle of lis pendens is wrongly invoked in this case.

(vi) Offer for claim of half share in any way the decree holder wanted spurned off by revision petitioner

11. The learned senior counsel for the respondents made an offer that if only the decree holder is of the view that the property in the possession of the objector was perceived to be a better half, he would have no problem about swapping the portion of the property in his possession in lieu of the property in the possession of all the sons of the decree holder. One of the parties was in Court, but he would want nothing of the same. His steadfast contention has been that he should take full possession of the property which was Civil Revision No.3540 of 2002 (O&M) - 12 - originally in the hands of the tenant. That would be possible if there was no other third party interest which was intervening. If the objector is therefore relying on an earlier decree passed granting an injunction in respect of the property purchased by his predecessors against the decree holder and if he also obtained a partition decree, it is most potent weapon to displace the decree obtained against the tenant and stave off the landlords' claim. It must be remembered that an eviction petition does not decide title. A Rent Controller has indeed no power to adjudge title. If an adjudication on title is sought at the execution stage by a third party, the decree holder cannot sing laurels on the decree obtained. She is bound to show better title; nay, defeat title pleaded by a third party. The decree holder is fed by her self deception and spirited by avarice. The presentation of the execution petition after losing out a half share to a co-owner is mala fide and an abuse of process of court. IV. Disposition

12. I place on record my sincere appreciation for the hard- work put in by Amicus Curiae and for the immense assistance that the counsel gave to me by setting out the facts in detail and presenting the case in all its dimensions in the manner pleaded by the petitioners. The Amicus Curiae will be paid remuneration of `10,000/- from the Amicus Curiae Fund.

Civil Revision No.3540 of 2002 (O&M) - 13 -

13. I have found the execution petition filed by the decree holder was itself not bona fide. She ought to have rested the case with an adjudication that clearly demonstrated her right to be confined only to a half share in the whole property. The civil revision petition is vexatious and deserves to be dismissed. Counsels' fee for respondents `10,000/-; exemplary costs `3,500/-, both to be borne by the revision petitioners.

14. The civil revision is dismissed on the above terms.

(K.KANNAN) JUDGE 01.07.2013 sanjeev

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Punjab-Haryana High Court