Vinod Kumar vs Mandir Laxmi Narayan And Others ... on 12 March, 2020

[Cites 41, Cited by 0]

Uttarakhand High Court

Vinod Kumar vs Mandir Laxmi Narayan And Others ... on 12 March, 2020

Bench: Sharad Kumar Sharma

                                                  Reserved Judgement

 HIGH COURT OF UTTARAKHAND AT NAINITAL
                 Second Appeal No. 182 of 2019
                                    With
   Miscellaneous Application with Supplementary Affidavit No. 14406/2019
                 Interim Relief Application No. 14717/2019

Vinod Kumar                              ...Defendant/Appellant

                                   Vs.

Mandir Laxmi Narayan and others              ...Plaintiffs/Respondents

Present:     Mr. Neeraj Garg, Advocate for the appellant
             Mr. Amar Murti Shukla, Advocate for the respondents

                                               Reserved on 06.11.2019
                                               Delivered on 12.03.2020

Hon'ble Sharad Kumar Sharma, J.

Before venturing to remark on merits of Second Appeal, it becomes inevitable for this Court to express its deep anguish; as to the manner and for the ulterior motives best known to the defendant/appellant and his counsel of the present Second Appeal, as to why an incomplete documents had been filed by him, particularly when it relates to the very foundation of the entire controversy of Second Appeal which arises out of a Civil Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another, which was adjudicated by the Court of Civil and Sessions Judge, Dehradun by decreeing the Suit on 31st August 1973, whereby the suit of the plaintiff (respondent No. 1 herein) was decreed for eviction and the recovery of arrears of rent.

In the suit in question, which was instituted way back in 1965, after the exchange of pleadings, the learned trial Court had framed various issues at various stages of the proceeding of 2 Suit. Initially, issue Nos. 1 to 6 were framed by the learned trial Court to the following effect:-

"1. Whether there existed the relationship of landlord and tenant between the plaintiff No. 1 and the defendant?

2. Whether the rate of rent i.e. Rs. 5/- P.M.?

3. Whether the defendant committed default in the payment of arrears of rent?

4. Whether the plaintiff No. 2 is the Manager of plaintiff No. 1?

5. To what amount of arrears of rent is the plaintiff entitled?

6. Relief?"

For the second time, additional issues were framed by the trial Court under Order 14 Rule 4/5 of CPC were yet again framed on 13th July 1966, whereby additional issues No. 7 to 11 were framed to the following effect, which are quoted hereunder:-

"7. Whether Court-fees paid is insufficient and suit is undervalued?

8. Whether the suits bad for non-joinder of necessary party?

9. Whether the suit is barred by estoppel?

10. Whether the defendants possession is adverse as alleged in para 17 of written statement?

11. Whether def. has constructed pucca structures as alleged in para 18 of the W.S.? If so, its effect?"

For the third time, the trial Court of Civil and Sessions Judge, Dehradun, had modulated further additional issues which were framed being issues No. 12 to 18 on 16th February 1968, which are quoted hereunder:-

"12. Whether the plaintiff No. 2 is karta or joint Hindu family?

13. Whether the value of the constructions made by the deft is of value of Rs. 5276/- and the suit is not triable by this Court beyond jurisdiction?

14. Whether the court fees paid is sufficient?

15. Whether the deft is absolute owner of the property in suit and not a licensee of the plff or plff no. 2?

16. Whether the possession of the defts is hostile and adverse and they have become complete owners of the suit property.

17. Whether the suit in the present form does not lie?

18. Whether this court has no jurisdiction to try this suit?"

The learned trial Court, yet again had framed an additional issue on 19th April 1973 being issue No. 19, which reads as under:-

"19. Whether the notice is illegal?"

And lastly, for the 5th time, the trial Court on 9th July 1973, had framed issue No. 20 which was framed by the learned trial Court in the following manner, which is quoted hereunder:-

"20. Whether the suit had for want of sanction of Advocate General O.P. as provided in Section 92 CPC."

In the zerox copy of the certified copy of the judgement dated 31st August 1973, rendered in Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another, which has been annexed as Annexure No. 1 to the affidavit filed in support of the Second Appeal, with which we would be much concerned to refer herein is pertaining to the manner in which the judgement has been produced and relied by the learned counsel for the appellant for the reasons best known to him. Because at page 78 of the present second appeal (the original judgement) issue Nos. 4 and 12 was considered and decided by the learned trial Court on page 80 issue nos. 1 and 2 has been decided by the Trial Court. The typed portion of the judgement does not mention the part of the judgement as referred in page Nos. 79 and 80 of the paper book (the original judgment), which includes an adjudication made by the learned trial Court on issue Nos. 1 and 2. In other words, it means to say that the typed 4 portion of the judgement, which commences from page 93, has extracted only part of the original judgement which is referred in page No. 81 of the paper book of the present second appeal, which commences from the words - "In result, I hold that the defendant No. 1 is the tenant of the plaintiff No. 1 at Rs. 5/- per month rent, and that the relationship of landlord and tenant existed between the plaintiff No. 1 and the defendant No. 1."

Thus expressing my anguish and also taking a serious note that the said mistake cannot be nomenclatured as to be a human error or an unintentional mistake. The reason being that page No. 81 (internal page 13 of the original judgement) of the Second Appeal contains an adjudication of issue Nos. 1 and 2, which continues from page No. 81, which does not constitute to be the part of the typed copy of the judgement filed in the Second Appeal.

However, on page No. 93 of the typed portion of the judgement, certain excerpts of page No. 81 of the original judgement has been extracted to be typed, thus I am of the considered view that such type of litigant should not be given any latitude by placing the documents by interpolating it or by not placing the complete documents on place on record, and also by extracting the findings, according to his own wisdom, choice and convenience and excluding to record the findings, which otherwise would have been relevant for example that of issue Nos. 1 and 2. Hence, I hold that the defendant/appellant has not come up with clean hands before this Court.

After arguing the Second Appeal at length and after observing the aforesaid lacuna, and the wrath of the Court, due to concealment.

In order to avoid an argument at admission stage of the present Second Appeal, before this Court, the learned counsel for the appellant submitted that in a prior proceedings which was held before this Court by way of Writ Petition (M/S) No. 604 of 2009, Sri Vinod Goel v. Sri Sushil Chandra Sabbarwal & Another, since I had appeared as a counsel on behalf of the defendant/appellant herein, an attempt was made at a later stage of arguments, to avoid to address of the Second Appeal on its merits before this Court. The records of Writ Petition (M/S) No. 604 of 2009 was called from the Registry by this Court, and after having gone through the records of the said writ petition, it shows that the said writ petition was emanating from an order dated 17th April 2009, as passed by the Court of Additional Chief Revenue Commissioner, Dehradun in Revenue Revision No. 84 of 2008-09 which was preferred under Section 219 of the Land Revenue Act 1901, and after having gone through the entire proceedings, which was subject matter in the said writ petition, it was pertaining to the proceedings which was conducted under Section 28 of the Land Revenue Act of 1901, which is summary in nature, it was a proceeding which was not adjudicating a right or title of any parties which was subject matter of those proceedings as the same would be an issue to be adjudicated in a regular proceedings. Even so much so, the said proceedings apart from being summary in nature under the provisions of Land Revenue Act 1901, it was in relation to the description of the property which was mentioned in those proceedings to be in relation to Khasra No. 30, over which the petitioner therein that is the defendant/appellant in the present Second Appeal was claiming his rights by way of passage for ingress and egress so as to have an access to Kaushali Road as against the private respondent therein in the proceedings.

In the said writ petition and the proceedings which was held under Section 28, either of the respondents therein are not the parties to the present second appeal or in the Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another, which was filed by the plaintiff/respondent No. 1 herein. Furthermore, even if the decree dated 31st August 1973, which was rendered in Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another dated 31st August 1973, which was the subject matter of consideration of the said suit it was in relation to the property as described therein to be constituting a premises No. 139, Bharuwala, Clement Town, Dehradun which was altogether a distinct property as that involved in Writ Petition (M/S) No. 604 of 2009, hence this Court is of the view that the adjudication made in the said writ petition, in which I had appeared as a counsel will have no bearing as far as the present second appeal is concerned. Hence, I have no hesitation to proceed to decide the present Second Appeal on its own merits.

Heard the counsel for the parties at length:-

Brief facts of the controversy:-

The consideration of the backdrop under which the present Second Appeal has reached upto this stage is in pursuance to the adjudication which was made on an application filed by the judgement debtors appellant herein under Order 21 Rule 97 of CPC, which is essentially required to be considered as to what impact and upto what extent the provisions of Order 21 Rule 97 of CPC, could be stretched to the convenience of the defendant/appellant/ judgement debtor herein so as to abuse the process of law. Chronologically, the facts are that:-

i. The defendant/appellant claimed to be in possession of the property though without a title, nor any document there being on record as such at his behest to show his title to be legally vested in him since 1942. ii. The plaintiff/respondent's case in the suit was that the status of defendant/appellant herein was that of a tenant over disputed property, as he was inducted as a tenant @ Rs. 5/- per month by plaintiff No. 1 which was payable as rent, and since he has committed a default in paying the rent since 1st June 1958, his tenancy, as per the plaintiff/respondent's case, it deserved to be terminated.

iii. The property in question which is disputed constitutes to be the property as described in Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another. The predecessors of the present defendant/appellant were tenants over part of it constituting to be the property bearing Municipal No. 139, Bharuwala, Clement Town, Dehradun, on which there existed a Lakshmi Narayan Temple, and the property in question as per record of rights and title was vested with the deity of the said temple, which was being managed by the plaintiff Nos. 2 and 3, i.e. Somti Prasad and Shiv Prasad, as described in the Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another.

iv. The records also reveals that the late great grandfather (Lala Mr. Tiku Mal) of plaintiff Nos. 2 and 3 of Suit No. 66 of 1965, Laxmi Narain and others v/s Shri Baru Mal and another, had constructed the Temple named as Lakshmi Narain Temple and vested the property to the 8 deity and installed an Idol of Lord Lakshmi Narain therein.

v. Late Lala Tiku Mal was succeeded by the only son, named Banwari Lal (now deceased), who after the death of Lala Tiku Mal continued to manage the affairs of plaintiff No. 1.

vi. Late Banwari Lal was succeeded by his two sons i.e. Hukum Chand and Kamal Nain.

vii. The second son of Banwari Lal i.e. Kamal Nain had no male lineal decedent, he had only daughter, who was married and is residing in her matrimonial home. viii. The first son of late Banwari Lal i.e. Mr. Hukum Chand was succeeded by his two sons i.e. Shiv Prasad and Somati Prasad, who were the plaintiff Nos. 2 and 3 in the Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another and plaintiff/respondent of the present Second Appeal.

ix. This status of Somti Prasad and Shiv Prasad, the heirs of late Hukum Chand was that they were the Managers, who were divested with the rights to manage the deity of plaintiff No. 1 and all the properties were vested in them.

x. On 13th November 1964, the plaintiff Nos. 2 and 3, who were managing the affairs of the plaintiff No. 1 i.e. the deity, with whom the property stood vested, had issued a notice to the defendant/appellant's predecessor Barumal, terminating the tenancy of the present defendant/appellant on the ground that he has committed default in remitting the rent, first since 1st June 1958, and secondly, committed default in remitting the rent for the period from 18th August 1964 9 to 18th December 1964, which he was otherwise liable to pay the rent @ Rs. 5/- per month, and consequently the suit was filed for ejectment and recovery of damages for the user of the property from 19th December 1964 without the remittance of any rent as such.

xi. In the plaint, the case of the plaintiff Nos. 1 and 2 was that Somti Prasad i.e. plaintiff No. 2 was the Manager of the plaintiff No. 1 and he used to take care of the affairs of the property of plaintiff No. 1 i.e. the deity and his real brother that is Shiv Prasad (plaintiff No. 3) also used to discharged the identical responsibilities of taking care of the property of plaintiff No. 1 in the absence of plaintiff No. 2 (Somti Prasad). That means both plaintiff Nos. 2 and 3 were equally responsible to manage the property of plaintiff No. 1.

xii. The plaintiff's case in Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another was further that, the tenancy of the tenant i.e. the predecessor of defendant/appellant was on month to month basis and since he has committed a default in not remitting the rent from 1st June 1958, they had instituted a suit being Suit No. 340 of 1962 for recovery of the arrears of rent and ejectment and for the recovery of the defaulted amount with effect from 1st June 1958.

xiii. The said suit being Suit No. 340 of 1962 was dismissed on account of certain defects, as was mentioned therein to the effect that since the said suit was instituted in a personal capacity of plaintiff Nos. 2 and 3 of Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal 10 and another, the same could not have been proceeded with, consequently it was dismissed as withdrawn without there being any adjudication on merits of the matter.

xiv. However, any controversy which was emanating as a consequence of dismissal of the said suit No. 340 of 1962 and institution of the present Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another in pursuance of the notice of termination of tenancy on 13th November 1964, had never been a bone of contention in the proceedings of the Civil suit before the Court below.

xv. The said suit No. 66 of 1965, Laxmi Narain and others v/s Shri Baru Mal and another, when it was being contested on merits during its pendency, the plaintiff/respondent No. 1 had made an amendment in the suit to the effect that the tenancy / license of the defendant No. 1/appellant (therein) stood terminated on account of the fact that he has wrongfully inducted by defendant No. 2 i.e. Basant Singh as an occupant of the property on the part shown by figure 'e' and 'f' in the amended plaint.

xvi. The defendant i.e. the predecessor of the defendant/appellant herein had put in appearance and has filed his written statement before the Court below in which primarily raising the following issues:-

(a) Defendant No. 1 denied the status of plaintiff No. 1 i.e. the deity itself as to be the owner of the property.

(b)In the written statement, he had rather denied the status of plaintiff Nos. 2 and 3 as to be the Managers 11 of the property, who were in helm of managing the affairs of the assets, which has been vested with plaintiff No. 1.

(c) The defendant/appellant, had in the written statement denied his status as to be that of a tenant.

(d) The defendant/appellant contended that since the plaintiff/respondent Nos. 2 and 3 had filed an earlier Suit being Suit No. 340 of 1962, in their individual capacity they are estopped to claim in suit being suit No. 66 of 1965, Laxmi Narain and others v/s Shri Baru Mal and another, that the property belongs to the deity, the plaintiff No. 1 with whom the title stood vested.

(e) The defendant/appellant claimed that the suit itself could not have been instituted for the reason being that he contended that since he being in possession of the property since 1942, he would be acquiring his rights by way of a title and claimed a right over it by way of an adverse possession.

(f) Alternatively, the defendant/appellant had taken a defence to the effect that if they otherwise are held to be licensee of the property in question, which is contented to have been terminated by the landlord/ plaintiff No. 1 through plaintiff Nos. 2 and 3 on 13th November 1964, in such an eventually, since the defendant/appellant has raised the structure by making an investment in it, their license cannot be terminated in view of the provisions contained under Section 60 of the Indian Easements Act, 1882.

(g)Lastly, the defendant/appellant, pleaded that the suit itself would be barred in view of the provisions 12 contained under Section 92 of the Code of Civil Procedure, since the status of the plaintiff/respondent since being that of a deity, the bar would come into play and the suit would not be maintainable.

xvii. The defendant No. 2 who was inducted as sub-tenant by defendant No. 1, he had independently filed his written statement in the suit and he had specifically denied to have occupied the property that is shown by figure 'e' and 'f', which has been brought on record by way of an amendment which was made by the plaintiff/respondent.

xviii. The defendant No. 2 claimed his rights and possession of the property in his own independent rights.

Based on aforesaid pleadings and issues, the trial proceeded and the learned trial Court of Civil and Sessions Judge, Dehradun vide its judgement/decree dated 31st August 1973, had decreed the suit for ejectment, the nature of the decree, which has been rendered therein by the trial Court was of the following nature:-

"ORDER The suit is decreed for the ejectment of the defendants Nos. 1 and 2 from the premises in dispute. The suit is also decreed for recovery of Rs. 20/- as arrears of rent from 18.8.64 to 18.12.64 and also for pendetelite and future damages from 19.12.64 to the date of the recovery of possession, subject to plaintiffs' paying court fees in the execution department against the defendant No. 1. The defendants are at liberty to pull down the structures made by them over the premises in dispute which have been shown by green colour in Map, 50/A1, within one month from today, failing which the plaintiffs shall be given possession along with the structures. Map 50/A1 shall form part of the decree. The defendant No. 1 shall pay costs of this suit."

It would be necessary to precisely deal with the issues which were adjudicated by the learned trial Court in its judgement dated 31st August 1973, rendered in Suit No. 66 of 1965, Laxmi Narain and others v/s Shri Baru Mal and another which was decreed for eviction and recovery of damages. The learned trial Court, while answering the first question that the plaintiff No. 1 that is the deity is not the owner of the property and has decided the issue Nos. 8 and 17, and while deciding the aforesaid issues, the learned trial Court had observed that the manner in which the managerial rights of managing the property of the plaintiff No. 1 were flown from late Lala Tiku Mal, Banwari Lal, Hukum Chand and thereafter to the present plaintiff Nos. 2 and 3, the deity plainitiff No. 1 would be owner of the disputed property and plaintiff Nos. 2 and 3 as to be its managers by succession from their predecessors through lineage.

It was further observed that in the proceedings of the earlier suit that is Suit No. 340 of 1962, the defendant No. 1 himself had made a statement wherein he has categorically admitted the fact that he has taken the property in possession from the predecessor of the plaintiff Nos. 2 and 3 that is late Hukum Chand. He has further in his statement as recorded in the Suit No. 340 of 1962 had admitted the status of the property as to be that of plaintiff No. 1 by making a pleading to the effect that he was admitted into the occupancy of the property by Hukum Chand for the purposes of performing small work of deity i.e. by lightning the lamp (diya baati) and hence the Court has inferred that the property belongs to the deity, according to the admission of the defendant No. 1 himself and his status 14 being that of a licensee can also be inferred by his plea that he was given a permission as a licencee to do the work of deity.

The learned trial Court has further observed that over the property there was a deity installed by late Lala Tiku Mal, which is a fact which is also established from the documents which were placed on record that is Exhibit 5, i.e. the khevat for the fasli year 1369 fasli (i.e. 1962), where the Mandir Lakshmi Narayan, through its Managers Somti Prasad and Shiv Prasad has been recorded in the revenue records of khevat, which is the document of ownership as the owner of the property. The learned trial Court thus while adjudicating the status of the plaintiff No. 1 as to be the owner of the property that is the deity with whom the property is vested had considered the impact of the judgement rendered by the Hon'ble Apex Court reported in AIR 1970 SC 532, Ram Chandra v. Thakur Janki Vallav Ji Maharaj, wherein it has held that in view of the ratio propounded therein that since if the fact is admitted by the defendant/appellant that he has taken the property from Hukum Chand and Kamal Nain, the predecessor in interest of management of plaintiff Nos. 2 and 3, the Court had held that, the plaintiff Nos. 2 and 3 will acquire an interest by succession to manage the property of plaintiff No. 1; since being the heirs of the founder of the plaintiff No. 1. Hence, it was held accordingly by the trial Court that apart from the fact that plaintiff No. 1 is the owner of the property, it was also held that plaintiff No. 2 had got every interest over it to file a suit for the possession of the property or on part of the property vested with the deity.

The learned trial Court had framed issue Nos. 13, 14 and 18 with regards to the tenability of the proceedings which was disposed of on a preliminary issue on 28th April 1973, this order has attained finality as the issue No. 13 pertained as to whether the value of the construction alleged by the defendant to have been raised would take the suit out of the pecuniary jurisdiction of the Court. Issue No. 18 was with regards to the jurisdiction to try the suit.

Thus, the aforesaid three issues admittedly and as per records too were not pressed by the defendant/appellant, in opposition to the suit and was decided in favour of the plaintiffs/respondents holding thereof that the suit would be maintainable. The issue No. 9 was framed by the learned trial Court it was pertaining to as to whether there would be a bar of estoppel against the plaintiff/respondent on account of an earlier suit where they have disclosed their status as to be the owner of the property would not create a bar of estoppel vis-à-vis the defendant/respondent since there status being that of a tenant and the earlier suit the matter was not adjudicated on merits but was rather dismissed as withdrawn on account of certain defects which had crept in it.

Another important and vital aspect, which was of a relevant consideration it was by way of issue Nos. 15 and 16 to the effect that as to whether the defendant/appellant would acquire an absolute ownership of the property by adverse possession or his status would be as that of a licensee of the plaintiff/respondent.

While deciding the said issue, the learned trial Court while adjudicating upon suit vide its judgement and decree dated 31st August 1973, had considered the statement of DW1 which was recorded during the trial to the effect that plaintiff Nos. 2 and 3 and one Mr. Kamal Nain had stopped the defendant from performing his activities of dia baati of the deity of the plaintiff that is plaintiff No. 1. He has further has stated that he used to manage the affairs on the basis of instructions of Kamal Nain, who was also one of the sons of the predecessors of plaintiff Nos. 2 and 3, who installed the deity of plaintiff No. 1. The very fact of admission that he was stopped from lightening of dhoop and dia baati and was stopped even from performing any function and that he was asked to vacate the premises, the statements of DW1 and DW2 as recorded before the Court below would assign that the defendant/appellant, as to be having the status of that of a tenant and not that of ownership over the property by way of an adverse possession because he in his own statement had shown that his possession over the property in question was permissive in nature which was based on the tenancy which was created by the plaintiff(s). Even before the trial Court too, the statement of DW1 i.e. Shri Duni Chand, he has made a statement, which reads as under:-

"mai Sardar Basant Singh ko janta hui. Unhe Barumal ne hi basaya......ve Baru Mal ko sath vale kamre me rahta hain. Unhe Baru Mal ne hei jagah de rakhi hai."

This statement and the depositions which was made by DW1 and DW2 Sri Chintamani, it shows that their status of occupancy over the disputed property was that of a tenant and while deciding issue Nos. 8 and 17, the trial Court has already dealt with above that Barumal, since himself has claimed to be licensee of Hukum Chand, the deceased father of plaintiff Nos.

2 and 3. Hence, his status would be at the most that of a licensee and could not be better than what was claimed by Barumal the predecessor in interest of the defendant/appellant according to his own case and hence he cannot claimed to be owner by way of an adverse possession.

The findings on issue Nos. 4 and 12 which are relevant for adjudication of second appeal has not been completely extracted in the part of the typed copy of the judgement dated 31st August 1973, it was with regards to an adjudication made by the learned trial Court on issue Nos. 4 and 12, as framed before the Court below. However, at this stage it may not be having any significance because the learned trial Court based on the ratio as propounded by the judgement reported in AIR 1961 Allahabad 73, Behari Lal v. Thakur Radha Ballabh Ji and Another, has held that the rights and duties which are casted on the beneficiary is inclusive of his or their right to sue for protecting of the idol's/deity's interest has been recognised under law and hence the Manager, who is or are managing the affairs of the deity would have all right to sue also.

"14. In Mukherjee's Hindu Law of Religious and Charitable Trust (1952 Ed.) at p. 265 it is stated as follows:

"The deity as a juristic person has, undoubtedly, the right to institute a suit for the protection of its interest. So long as there is a shebait in office, functioning properly, the rights of the deity, as stated above, practically lie dormant and it is the shebait alone who can file suits in the interest ot the deity. When, however, the shebait is negligent or is himself the guilty party against whom the deity needs relief, it is open to worshipper or other persons interested in the endowment to file suits for the protection of the Debutter, It is open to the deity also to file a suit through some person as the next friend for recovery of possession of property improperly alienated or for other relief. Such a next friend may not unoften be a person who as a prospective shebait or a worshipper is personally interested in the endowment.

How then are we to distinguish between these two classes of cases and ascertain whether it is a suit by the deity or by the worshipper personally? The answer would certainly depend upon the nature of the suit and the nature of the relief claimed. If the suit is not in the name of the deity, it cannot be regarded as a deity's suit, even though the deity is to be benefited by the result of the litigation. It would be the personal suit of (he worshipper, the family member or the prospective shebait as the case may be. Again these persons are not entitled to claim any relief for themselves personally, e.g., by way of recovery of possession of the property improperly alienated or adversely possessed by a stranger."

The aforesaid statement of the position by Mukherjee, answers the defendants' objection fully. In our Court it has been held that a suit can be brought in the name of an idol by a de facto manager (see Copal Datt.v. Babu Ram, 1936 All LJ 515 (AIR 1936 All 653)). Also it has been held in Mahadeo Prasad Singh v. Karia Bharti, 1935 AH LJ 678:

(AIR 1935 PC 44), by their Lordships of the Privy Council that a dc facto mahant is entitled to maintain a suit. It has also been held in Darshan Lal v. Shibji Maharaj Birajman, 20 All LJ 977: (AIR 1923 All 120), that a person claiming a mere benevolent interest in the fortunes of an idol cannot be permitted to sue in the name and as next friend of the idol.

No doubt a shebait has authority to institute a suit in his own name to recover property belonging to the deity. (See Jagadindra Nath v. Hemanta Kumari, 31 Ind App 203 at p.

210).

It has been held in Administrator General of Bengal v. Balkissen, ILR 51 Cal 953: (AIR 1925 Cal 140), that after the appointment of Shebait the right to sue for possession of the property with which the idol is endowed, belongs to the Shebait and not to the idol. But the question which arises is if the Shebait is not willing to sue or cannot sue because he himself is responsible tor the alienation which is to be questioned or if there is no de facto Shebait or mahant, idol, not being a sentient being, should become incapable of action and let its interest suffer? The case of a person who merely takes a benevolent interest is different to a person who has more than a benevolent interest, such as a worshipper. It is contended that even such a person is debarred from representing the idol and for this reliance is placed upon Gopalji Maharaj v. Krishna Sunder Nath, 1929 AH LJ 1251: (AIR 1929 All 887). In that case the idol sued through a person who claimed to be a manager of a temple but in fact was merely tenant and it was held by the trial court that the tenant could not represent the idol.

In the civil revision filed in this Court from the trial Court's judgment Sen, J., pointed out that a Hindu idol, although not a sentient being, is a juristic person and has been regarded as occupying a position analogous to that of an infant. He held 19 that Order 32 Rule 4, C. P. C., could not be applied to the case of a Hindu idol. He referred to the case of Jodhi Rai v. Basdeo Prasad, ILR 83 All 735 (FB), which lays down that a suit on behalf of an idol must be carried on by some per-

son who represents the idol, usually the manager of the temple in which the idol is installed.

Mr. Justice Sen then pointed out that the person through whom the idol was represented in the suit could not be described as the manager of the temple as he was not appointed to the administration of the temple. The right of the tenant to represent the idol was negatived because it was said that it was not shown that he had a sufficient interest in the subject-matter of the suit to be enitled to bring the suit in the name and on behalf of the idol and reference was made to the case of Sheo Ramji v. Sri Ridhnath Mahadeo Ji, ILR 45 All 319: (AIR 1923 All 160), in which the original manager of the temple property was dead, his chela and successor was a minor and one of the persons who was appointed to supervise the management namely Ram Kishan Das had appointed Vivekanand guardian of the property of the idol on behalf of the minor.

The idol brought a suit through Vivekanand to recover possession of the property which had been wrongfully sold and it was held that Vivekanand had a sufficient interest in the subject-matter of the suit to be entitled to bring the suit in the name and on behalf of the idol. We do not think that the effect of Sen, J.'s judgment is that even though a person is shown to have a sufficient interest in the subject-matter he cannot as next friend of the idol bring a suit. It is obvious that a tenant could not be said to have any interest in the temple merely because he was a tenant. The tenant's relationship could only be said to be contractual relationship and not a beneficial relationship idol.

In Doongarsee Shyamji v. Tribhuvan Das, AIR 1947 All 375, the argument was advanced that any one can file a suit as next friend of the deity and that to such a suit the provisions of Order 32 C. P. C. though strictly not applicable, should be applied so that the decree could be passed in favour of the deity and all that the courts need see is whether the person purporting to act as the next friend has any interest adverse to the minor and in case the court is of the opinion that the person purporting to act as the next friend is not a proper person the court may appoint some one else. The argument so broadly put was not accepted.

It was however pointed out that where the shebait of a temple has done something which is obviously adverse to the interest of the institution it may be that the court would allow a disinterested third party to file a suit, but such a suit must be filed in the interest of the foundation or the deity, as 20 the case may be. Learned counsel toi the appellant was prepared to concede that the idol through a next friend would be entitled to file a suit to seek a mere declaratory relief but he contended that a suit for possession cannot be brought by an idol through a next friend even though such a next friend had a beneficial interest.

The contention was that in such a case possession could not be directly taken by the idol and possession would be taken by the next friend which would mean rlacing of the temple property in the hands of a person who had no de jure right to hold possession which right could be vested in the shebait alone. We are unable to understand why if a declaration can be sought by a deity through a next friend who has a beneficial interest, a suit for possession cannot be filed in the same manner. The decree would be executed for the benefit of the idol and when the next friend took possession he would be taking it for the idol and the idol would be in possession.

It was contended that the proper procedure to be followed in a case where there has been an unjustified alienation by the shebait is to have the shebait removed in an action under Section 92, C.P.C., to have another shebait appointed and such a duly appointed shebait could then in his own. name sue for restoration of the property to the temple of which he is the shebait. The authority cited in support of this was Kunj Behari Chandra v. Shyam Chand Jiu Thakur, AIR 1938 Pat 394. Suits under Section 92 C. P. C., have their foundation. on breach of trust.

Where a shebait purports to alienate the property under a mistaken belief that he has the power under the circumstances to alienate the property but there is no misappropriation of the sale proceeds or any other misfeasance and the conduct of the shebait is in all other respects unimpeachable it does seem strange that the shebait should be subjected to a suit under Section 92, C. P. C., and be removed and this cumbersome procedure should have to be adopted before the property alienated could be recovered for the temple.

In such a case the failure of the shebait to sue to set aside the alienation would be understandable because it would be difficult for him to proceed with an action directed against his own act. Once the right of a de facto manager to bring a suit is accepted then it seems to us that it is only one step further and involves no real breach of the principle to alow one who has a beneficial interest in the temple property to take steps to see that the temple property is preserved to the idol and to file a suit for that purpose as the next friend Of the deity bringing the suit in the name of the deity himself. No doubt where the shebait is in existence and functions normally as has been said, the deity's right to sue lies 21 dormant but as soon as the shebait is unable to act or his own act is questioned certainly a person who has a beneficial interest should be allowed to take steps to prevent the idol's interest being jeopardised.

Where even a de facto shebait is absent surely a person who has beneficial interest should be permitted to come in. That the worshippers haver a beneficial interest has been clearly laid down by their Lordships of the Supreme Court in Deoki Nandan v. Murlidhar, (S) AIR 1957 SC 133. It has been laid down there that the true beneficiaries of a religious endowment are not the idols but the worshipper and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers.

We may point out that in this case the evidence is not only that Jasodanandan was a worshipper but the finding of the court below is that Jasodanandan used to help Jagannath Prasad in managing the temple. For all these reasons we think that the idol was properly represented in the suit through him and the suit could not for that reason fail."

The aforesaid principles already stood affirmed in a judgement as reported in AIR 1953 Allahabad 289, Sri Kishan Vs. Jagannathji and others, wherein the status of such type of managers, like that of plaintiff Nos. 2 and 3; who succeeded the manager-ship as being an heir of predecessor manager has been held that, there has to be a distinction in interpreting the status of 'Shebait' thus appointed it would have a power of 'Manager". The Court has held that a person appointed as a manager of the property, and is also having an interest to the benefit of the property vested with the deity shall be a "Shebait", and where in case there was no such interest vested with the Manager, in the status or the property of the deity, he would not be a Shebait but rather would be a simplicitor Manager, because he would not have any interest and once under the Hindu Law, a personal interest of a beneficial character is vested by way of an inheritance in the office of managership, the same cannot be exclusively treated as to be the managerial-ship of the temple or the endowment and hence the 22 plaintiff Nos. 2 and 3, were held to have inherited the right of managerial-ship and hence in the ratio of the aforesaid judgements referred above, they were held to be the Shebait and also as the karta of joint Hindu family.

"27. The founder of an endowment may, therefore, make such arrangement as he likes for the administration of the endowed property as also for the worship and service of the deity. Whether on the creation of an endowment the office of a 'shebait' in the legal sense of the term comes into existence or not would depend upon the circumstances in each case; and it cannot be said that in each and every case, on the creation of an endowment 'shebaitship' automatically comes into existence. The law'recognises the founder's right to management of and control over the endowed property because by dedication he divests himself of his proprietary rights absolutely, but so long as there is no appropriation of the property for the purpose for which it is dedicated, there is an obligation on him to see to its preservation, and, accordingly, a corresponding right of control so long as the property itself exists. This does not mean that he holds the property as a 'shebait' even though he has assigned to himself the position of a bare manager and also appointed another person to look after the service and worship of the deity in whose favour the endowment has been created.

29. The noticeable difference between the position of a 'shebait' and the position of a manager of a temple is that the 'shebait' has, in the endowed property, a personal interest of a beneficial character. This distinction would bo the determining factor when the question arises whether a particular endowment is being managed by a 'shebait' or a bare manager. If the person appointed has any personal interest of a beneficial character in the endowed property, he would be a 'shebait', but if he has got no such interest, he would be treated as a bare manager. There is no bar to the founder of an endowment appointing a bare manager and prescribing a line of succession to the office of the manager.

35. Having regard to the nature of the right of a 'shebait' in Hindu Law, it has been held in Manohar v. Bhupendranath, 60 Cal. 452 (F.b.), that 'shebaitship' is property within the meaning of Hindu Law and a hereditary office. The same thing, however, cannot be said of the managership f a temple or an endowment."

The nature of the controversy involved in the Second Appeal; and which has been raised in the present Second Appeal too would be having a very much wide bearing on an adjudication made on issued Nos. 1 and 2, it was to the effect as to whether there existed a relationship of "landlord and tenant i.e. between the plaintiff and defendant No. 1". The learned 23 trial Court, after appreciating the evidence on record, and also after considering the statements of the parties, has held that as per Exhibit 6 dated 17th April 1953, the rent was shown to have been remitted, and there had been an evidence of an acknowledgement and a proof of the payment of rent up to 1958, and thereafter, the rent was due to be paid after 1st June 1958 when the plaintiff No. 1 through plaintiff Nos. 2 and 3 issued the notice on 13th November 1964, thereby terminating the tenancy of Barumal, the predecessor of the present defendant/appellant.

In the proceedings before the suit where issue Nos. 1 and 2 with regards to the status of the defendant was being decided as to whether he was a tenant or not, and when he denied the contents of Exhibit No. 6 dated 17th April 1953, the said receipts was issued by the plaintiffs for the month of April 1953 and May 1953, which was sent to a handwriting expert, Amar Nath Singh Nanda, who, after its scientific examination and comparison with the original signatures, the defendant/appellant had rather shown to have admitted that the receipt to bare his signatures i.e. the signatures of the predecessor of the present defendant/appellant i.e. Barumal. The said report of the handwriting expert finds place on record before the Court below as Exhibit No. 9.

There is an established fact of payment of rent. The issuance of receipts was a fact which too stood established and proved by evidence on record and hence the learned trial Court has specifically held that defendant No. 1 was a tenant on month to month basis of the plaintiffs and there existed a relationship between landlord and tenant.

Now, comes the stage of determination of the issue which has been pressed by the learned counsel for the appellant about the impact of Section 60 of the Indian Easement Act by projecting his status as to be that of a "licensee", and its effect from the viewpoint that since he has raised a construction over the property in his possession which was occupied by him admittedly given in his possession by Hukum Chand and Kamal Nain, the predecessors of the present plaintiff/respondent. The defendant/appellant contended that since he has raised a construction over the property licensed to him, he would acquire an immunity from eviction in view of the provisions contained under Section 60 of the Indian Easement Act which is quoted hereunder:-

"60. License when revocable.-A license may be revoked by the grantor, unless-

(a) it is coupled with a transfer of property and such transfer is in force;

(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."

After having given a thoughtful consideration over the aforesaid argument, this Court is of the view that immunity of eviction to a licensee from a property which has been licensed to him under Section 60(b) of the Indian Easement Act would be attracted only on the satisfactions of the conditions when:-

(i) The licence thus executed in favour of the licensee itself grants the power or right to raise construction over the property thus licensed

(ii) The construction is an execution of a work of permanent nature under the terms of a licence itself.

In view of the aforesaid, since it was already determined by evidence that there was no such licence which was placed on record; since the learned trial Court while deciding the issue Nos. 1 and 2 had already held the status of the defendant/appellant being that of a tenant, he could not have derived the benefit of Section 60 of the Indian Easement Act in order to acquire an immunity from eviction in the absence of first satisfying his status as to be that of a licensee, as defined under Section 52 of the Indian Easement Act and also that the defendant/appellant had not been able to prove to have acquired the right of licensee under the terms of license created in his favour by the licensor. Section 52 of the Indian Easement Act is quoted hereunder:-

"52 "License" defined. -Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."

The Court is of the view that a simplicitor implications and intention of Section 60 of the Indian Easement Act, would not be attracted in the present case until and unless the precondition of establishing the status of a licensee as defined under Section 52 of the Indian Easement Act is established by the defendant/appellant, since there being no evidence to the contrary recorded by the Court while deciding issue Nos. 1 and 2, and since the predecessor of the present defendant/appellant has already been determined as a tenant, he can not take the benefit of Section 60 of the Indian Easement Act and hence the said substantial question of law, as raised by the defendant/appellant would not be involved for consideration.

Even so much so, the status claimed being that of a licensee cannot be proved by him in view of the statements placed on record as Exhibit 1 to the effect that the right of eviction was vested with the plaintiff/respondent from the property in question. Admittedly, the said judgement dated 31st August 1973, had not been questioned in a Regular Appeal under Section 96 of the Code of Civil Procedure.

Present controversy As a consequence of the judgement dated 31st August 1973, which has attained finality interse between the parties to the suit. The decree holder filed an Execution Case being Execution Case No. 3 of 1974, in which the judgement debtor i.e. appellant herein had filed his objection which was registered as Miscellaneous Case No. 38 of 1975, Temple Lakshmi Narain and others v. Smt. Krishna Devi (deceased) through LRs, by invoking the provisions contained under Order 21 Rule 97 of CPC. It was when the decree of 31st August 1973 was sought to be put to execution and when the Executing Court had made an effort to take over the possession of the property, and the Commissioner thus appointed by the Executing Court visited the spot on 23rd April 1975, the widow of the judgement debtor late Barumal i.e. Krishna Devi resisted the execution of the decree by filing an objection Paper No. 12(ka), which constituted to be the Miscellaneous Case No. 38 of 1975, Temple Lakshmi Narain and others v. Smt. Krishna Devi (deceased) through LRs.

If the said objection paper No. 12 (ga) which was filed by Krishna Devi itself is taken into consideration, she had come up with the case which was altogether absolutely a new plea which was alien to the proceedings of trial Court earlier to the effect 27 that late Baru Mal, she claimed in fact for the first time that he was the owner of the property having purchased the same by virtue of a registered sale deed dated 29th June 1970, that is a sale deed which was allegedly executed even much prior to the judgement and decree dated 31st August 1973, but late Baru Mal, the judgement debtor and alleged purchaser, in the proceedings of the suit before the Trial Court had never placed reliance on the said sale deed claiming thereof that any right was flowing to him from the said sale deed which could have affected the adjudication of Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another and hence it cannot be ruled out that the plea of the sale deed dated 29th June 1970 was raised by the applicant/objector of Order 21 Rule 97, as an afterthought so as to obstruct the conclusion of the execution proceedings that too of a suit of 1965 and decree of 1973.

The said objection of Smt. Krishna Devi w/o late Baru Mal, the judgement debtor was decided in the Miscellaneous Case No. 38 of 1975, and the Executing Court consequently held after considering the objection of the decree holder paper No. 108 (ka) filed in the Miscellaneous Case No. 38 of 1975; that the said plea of purchase made was of Khasra No. 30 it had got nothing to do with the suit property in question, which was exclusively being distinct property bearing on Municipal No. 139, Bharuwala, Clement Town, Dehradun. The Executing Court, while considering the objection under Order 21 Rule 97 of CPC framed the following issues :-

**bl izdh.k okn esa foospuk gsrq fuEufyf[kr okn fcUnq cuk, tk ldrs gSa%& 1- D;k ewy okn esa fMdzh fdlh /kks[ks ij vk/kkfjr gS\ ;fn gka rks izHkko\ 2- D;k ewy okn dh fMdzh vLi'V gS vkSj fu'iknu ;ksX; ugha gS\ 3- D;k lEifRr ekSds ij f"kuk[r gksus ;ksX; ugha gS\ 28 4- D;k ewy okn dh fMdzh foi{kh x.k ij ck/; ugha gS D;ksafd og mlesa i{kdkj ugha gS\ 5- D;k [kljk ua 30 feu- jdck -08 ,dM+ dh Hkwfe "kkfey gS tks foi{kh dh gS\ ;fn gak rks izHkko\ 6- D;k fu'iknu okn 3@74 esa 24-5-75 dk vkns"k vfUre vkSj i{kksa ij ck/; gS\ 7- D;k foi{kh x.k us fMdzh ds fu'iknu esa vojks/k mRiUu fd;k\ 8- vuqrks'k\** The learned Executing Court in its decision, has recorded a finding on issue Nos. 2, 3 and 5 to the effect that the property, which was the subject matter of Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another stood identified, because the chauhaddi of the disputed property was given, and as per the map, annexed to the plaint, thus it was held that the property was specifically demarcated and specified and hence was easily identifiable.

The claim which was raised by the judgement debtors in their objection filed under Order 21 Rule 97 of CPC it was with regards to the property being the subject matter of the sale deed dated 29th June 1970, contending thereof that it was the said property which in fact was the subject matter of the suit. The Court considered the documents produced by the judgement debtor i.e. appellant herein that is paper No. 52 (ka) that is the sale deed dated 29th June 1970; it was the property which was the subject matter of the proceedings which was held under Section 20 of the Displaced Persons (Compensation And Rehabilitation) Act, 1954, and the extract of Khasra Plot No. 26 to 31, in which Khasra No. 30 is shown to be having an area of 0.08 acres only.

The plaintiff /decree holder objected the said plea from the viewpoint that there was no document which was brought on 29 record as such to show that the judgement debtor had occupied the property which was allegedly purchased by him, lying in Khasra No. 30 nor any such effort to establish the possession of the said property was shown to have been made by the judgement debtor.

The degree-holder also took an objection that if at all the property which was the subject matter of the suit i.e. bearing No. 139, Bharuwala, Clement Town, Dehradun and if at all as it was claimed at the execution stage, to be the same property which was covered by sale deed dated 29th June 1970, then at least judgement debtor should have made reference to the sale deed dated 29th June 1970 and should have also relied on it, in the proceedings which was held before the Court below, having not done so, no relevance would it carry at the stage of execution proceedings, particularly, when it was his document of title; and was claimed as to be basis of his right, and too when it was available with him when the proceedings of the trial itself was going on as admittedly the deed was claimed to have been executed during its pendency in 1970. Apart from the fact that the property was absolutely distinct as provided in sale deed and that as referred in the plaint. It cannot be ruled out that the objection under Order 21 Rule 97 on the basis of sale deed dated 29th June 1970 was ill motivated to linger the proceedings and buy time in a suit of 1965.

The learned executing Court also, on an adverse claim being raised by the defendant/ judgement debtor to the decree dated 31st August 1973, has held that in the proceedings before the learned trial Court and even as that held before the executing Court, the property stood clearly identified; because in order to 30 establish distinction on the plea of judgement debtor between the property lying in Khasra No. 30 and property as that lying in Khasra No. 139, which was in fact disputed in the suit, the Executing Court had passed an order for holding a commission through Ameen vide its order dated 23rd November 1974, in order to clarify as to whether at all the property which is the subject matter of the decree happens to have any relationship with the property mentioned in the sale deed dated 29th June 1970, as claimed by the defendant/appellant i.e. judgement debtor hereinabove to be the same.

The Commissioner, in compliance of the order dated 23rd November 1974 thereto, has submitted his report on 26th April 1975, being paper No. 22 (ga) on record, demarcating the property showing its independent existence and thus the Court specifically had held that it is altogether a different property exclusively distinct in all regards to the property covered by the so-called sale deed dated 29th June 1970. The documents which have been placed on record by the judgement debtor/appellant herein along with the supplementary affidavit shows that in execution proceedings of Execution Case No. 3 of 1974, the Court of Additional Civil Judge vide its order dated 24th May 1975, directed to proceed with the execution as per the decree of 31st August 1973, after getting verification of the property by the Commissioner.

Admittedly, in compliance to the order dated 24th May 1975 thereto, the Commissioner has submitted a report on 20th February 1976. It was that when the executing proceedings were going on, the present defendant/appellant had filed an objection under Section 47 of C.P.C. being paper No. 106(ga) / 107(ga), 31 which was registered as Miscellaneous Case No. 23 of 1986. The said objection, which was filed under Section 47, had been rejected by the Court of First Additional Civil Judge, Dehradun by an order dated 1st May 1987. The said order of rejection of the objection filed under Section 47 of the present defendant/appellant aggrieved against it, he preferred a Civil Revision being Civil Revision No. 152 of 2019, Mr. Vinod Kumar v. Shri Mandir Laxmi Narayan (deceased) and others, and the Civil Revision too was dismissed by the Revisional Court on 14th August 2019. These two orders dated 1st May 1987 and 14th August 2019 rejecting objection under Section 47 of CPC has attained its finality.

Reverting back with regards to the effect of the rejection of objection/application under Order 21 Rule 97 of CPC by the impugned judgement dated 9th June 1995, the defendant/appellant, had contended that since being an objection under Order 21 Rule 97 of CPC, and the same is adjudicated as per the provisions contained under Order 21 Rule 100 of CPC, the same takes the shape of a decree as provided under Order 21 Rule 103 of CPC, and hence being aggrieved against the said judgement, he has preferred an Appeal which was initially registered as Miscellaneous Civil Appeal No. 101 of 1995, Vinod Kumar v. Mandir Shri Laxmi Narain & others, and later on, it was given a regular No. that is Civil Appeal No. 87 of 2011, Vinod Kumar v. Mandir Shri Laxmi Narain & others, which too has been dismissed by the impugned order dated 21st October 2019, against which the present Second Appeal has been preferred challenging the judgements dated 9th June 1995 as well as dated 21st October 2019, concurrently rejecting objection under Order 21 Rule 97 of CPC.

The learned counsel for the defendant/appellant, firstly for the purposes of present Second Appeal, had primarily argued that since in view of the provisions contained under Order 21 Rule 103 of CPC, when an objection under Order 21 Rule 97 of CPC was decided, it takes the shape of a decree, and once an Appeal is preferred against the said rejection of objection under Order 21 Rule 97 of CPC, it takes the shape of a Regular Appeal, and hence, there has had to be compliance of the provisions contained under Order 41 Rule 31 of CPC while deciding the Appeal which was preferred against the rejection of an application, filed under Order 21 Rule 97 of CPC.

The second issue, which was raised by the defendant/appellant is that the Executing Court could not have expanded the scope of a decree which was in relation to the property No. 139, Bharuwala, Clement Town, District Dehradun, by including in it the so-called property alleged to have been purchased by him, which was allegedly lying in Khasra No. 30. Both the Courts below, even I am of the view that they had concurrently considered the aforesaid plea and particularly the learned appellate Court had formulated the point of determination under Order 41 Rule 31, as it would be apparent from para 9 of the appellate Court's judgement which is quoted hereunder:-

**bl izdh.k okn esa mHk; i{kksa ds vfHkopuksa ds vk/kkj ij fuEufyf[kr okn fcUnq cuk;s x;sA 1- D;k ewy okn esa fMdzh fdlh /kks[ks ij vk/kkfjr gS\ ;fn gka rks izHkko\ 2- D;k ewy okn dhs fMdzh vLi'V gS vkSj fu'iknu ;ksX; ugha gS\ 3- D;k lEifRr ekSds ij f"kuk[r gksus ;ksX; ugha gS\ 4- D;k ewy okn dh fMdzh foi{khx.k ij ck/; ugha gS D;ksafd og mlesa i{kdkj ugha Fks\ 33 5- D;k [kljk ua 30 feu- jdck 0-08 ,dM+ dh Hkwfe "kkfey gS tks foi{kh dh gS ;fn gak rks izHkko\ 6- D;k fu'iknu okn 3@74 esa 24-5-75 dk vkns"k vfUre vkSj i{kksa ij ck/; gS\ 7- D;k foi{khx.k us fMdzh ds fu'iknu esa vojks/k mRiUu fd;k\ 8- vuqrks'k\** Hence, the Court, while considering the aforesaid questions had answered the same in negative against the appellant. Thus in view of the formulation of point of determination, the provisions contained under Order 41 Rule 31 of CPC stood complied with by the learned appellate Court, and hence the substantial questions of law, as framed by the appellant herein, while drawing the implications of Order 41 Rule 31 of CPC to the effect that being the Regular Appeal, its compliance was mandatory, I am of the considered view that in the peculiar facts of the present case that the learned appellate Court, after considering the entire backdrops did apply its mind and had formulated the point of determination as referred above and had rightly dismissed the Appeal by the impugned judgement dated 21st October 2019 and affirmed the judgement dated 9th June 1995 as passed by the learned trial Court. Thus, the argument which has been extended by the learned counsel for the defendant/appellant while drawing his implications from the judgements as reported in 2018 (3) SCC 340, G. Saraswathi and another v. Rathinammal and others, particularly he has made reference to paras 9 and 10 of the said judgement which are quoted hereunder:-

"9. Indeed, in the absence of any application of judicial mind to the factual and legal controversy involved in the appeal and further without even mentioning the factual narration of the case set up by the parties, the findings of the two Courts as to how they dealt with the issues arising in the case in their 34 respective jurisdiction and without there being any discussion, appreciation, reasoning and categorical findings on the issues and why the findings of two Courts below deserve to be upheld or reversed, while dealing with the arguments of the parties in the light of legal principles applicable to the case, it is difficult for this Court to sustain such order of the Division Bench. In our opinion, the disposal of the LPA by the Division Bench of the High Court cannot be said to be in conformity with the requirements of Order 41 Rule 31 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code").

10. Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the appeal afresh on merits.

I am of the view after considering the ratio propounded in G. Saraswathi (Supra) that the said judgement was altogether dealing with a situation where the judgement under challenge before the Hon'ble Apex Court was an adjudication which was made by the impugned judgement therein was without application of mind and the disposal was made of the LPA by the Division Bench of the High Court, therein it was held to be not inconformity with the provisions contained under Order 41 Rule 31 of CPC. I am of the view that the said judgement would not apply under the facts of the instant case for the reason being 35 that it was a judgement which was emanating from the High Court of Judicature at Madras, which exercises its original jurisdiction and under the rules framed there it permits the institution of the Letter Patent Appeal, which is to be decided as Regular Civil Appeal and hence there it has been held that the Division Bench should have complied with the provisions contained under Order 41 Rule 31 CPC.

The same is not the situation herein. I am of the view that in the present case the principal judgement and decree of the trial Court dated 31st August 1973, since having not been put to challenge in a Regular Civil Appeal, which was a legal platform, which was legally available to the defendant/appellant, where the question of Order 41 Rule 31 could have been raised, the issue would be as to whether at all the provisions contained under Order 41 Rule 31 of CPC would be stretched to be attracted in an Appeal which was arising out of an adjudication made under Order 21 Rule 103 of CPC, on an Application filed under Order 21 Rule 97 of CPC. Though, there couldn't be a doubt that an adjudication made to the proceedings under Order 21 Rule 97 of CPC as made would fall to be a decree as per provisions contained under Order 21 Rule 103 of CPC it did take the shape of a decree, but the issue would be as to whether at all the Executing Court's judgement, when it was put to challenge in an Appeal, whether the same stringent principles of Order 41 Rule 31 of CPC has to be applied with the same intricacies and intensity, particularly, when the principal judgement of the trial Court was not challenged in a Regular Appeal by the judgement debtor, which has been sought to be executed in an execution proceedings.

I am of the view that sensitivity and the legislative intent behind the implications of the provisions contained under Order 41 Rule 31 of CPC, was laying down a wider parameters where since the Appellate Court being the last Court of appreciation of facts and law involved in a case, and since being the last Court where the evidence could have been scrutinised, the legislature has mandated the compliance of Order 41 Rule 31 of CPC, in order to have a determination made on all the aspects which has been adjudicated by the trial Court, which in the present case could have been availed by the defendant/appellant, had he challenged the judgement and decree dated 31st August 1973, by preferring a regular civil appeal under Section 96 of CPC, which admittedly had been waived off by the defendant/appellant; apart from it his objection under Section 47 too was also concurrently dismissed which too has attained finality. The Court is of the view that the purpose of Order 41 Rule 31, stood attained finality when decree of the trial Court, was not challenged, which could have been the appropriate stage, if at all available, where the implications of Order 41 Rule 31 of CPC, could have been argued. Secondly, with rejection of objection under Section 47 of CPC the provisions of law could not be permitted to be abused by the judgement debtor facing execution of decree of 1973, by raising an alien plea and that too for the first time in execution case, widening its determination before the executing Court, particularly when it was not the case raised before the learned trial Court and it was consideration which was sought to be made beyond the decree itself as it was never a subject matter of the suit and that too for the first time.

In the instant case, the judgement of the learned appellate Court against the rejection of Order 21 Rule 97 application the 37 Court of appeal did framed the point of determination under Order 41 Rule 31 of CPC, and the appellate Court had rather considered those aspects which were sought to be determined by the defendant/appellant i.e. judgement debtor herein and the same has been answered in negative and hence it cannot be said that the provisions of Order 41 Rule 31 of CPC was not complied with by the appellate Court and in view of the above distinction that the said judgement of G. Saraswathi (supra) being arising out of an original jurisdiction of the High Court in LPA, the same principal would not be attracted in the present case which was arising out of rejection of Order 21 Rule 97 of CPC in Execution Proceedings arising from a regular civil decree of a suit.

There is another judgement, on which the reference has been made by the learned counsel for the appellant reported in 2001 3 SCC 179, Santosh Hazari v. Purushottam Tiwari (decreased) by LRs. and particularly, the reference has been made to the aspect as to whether by the High Court hearing an Appeal under Section 100 of the Code of Civil Procedure i.e. hearing of Second Appeal after its admission, what parameters are required to be adhered to. The said judgement has laid down in its para No. 9 that High Court cannot decide an Appeal at a 'stage of hearing', without framing the substantial questions of law, contemplated under Section 100 of CPC.

"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. [See Kshitish Chandra Purkait Vs. Santosh Kumar Purkait (1997) 5 SCC 438, Panchugopal Barua Vs. Umesh Chandra Goswami, (1997) 4 SCC 413 and Kondila Dagadu Kadam Vs. Savitribai Sopan Gujar. (1999) 3 SCC 722]."

Since present Second Appeal is being decided without admitting it and at the stage of admission itself, in limine, without issuing notices to the respondents, the parameters of determination of answering the substantial questions of law as required under Section 100 of CPC, and as contemplated in para 9 of the said judgement will not be attracted in the present case for the reason being that

(a) Apart from the fact that it is an Appeal, arising out of an execution proceedings, and

(b) Also because the Second Appeal when it is being decided by this Court since its a dismissal in limine, as per Courts determination, it involves no substantial questions of law to be answered as it didn't involved consideration.

(d) It's a second appeal arising out of an adjudication of Order 21 Rule 97, where the principal judgement and decree of trial Court has attained finality in the absence of challenge to it.

(d) Because the objection of appellant under Section 47 of CPC, concurrently stood rejected by both the Courts which too has attained finality.

(f) Court is of the view that under the facts of present case second appellate forum from decision of Order 21 Rule 97 of CPC application, is maliciously and deliberately used to prolong execution of 1973 decree of suit of 1965 and was not as a genuine defence.

Whereby herein in the Second Appeal the principle enunciated in the judgement of Santosh Hazari (Supra) it was a case where it required a determination when regular Civil Appeal was being finally heard after its admission and was 39 being adjudicated on its merits. Apart from it, the wider principles of effective adjudication on which the said judgement of Santosh Hazari (Supra) was based, was with a bearing in mind that the learned first appellate Court, since being the first superior Court of scrutiny of a judgement of trial Court, has had to consider the aspect contained under Order 41 Rule 31 of CPC, which this Court is of the view that the said intricacies of appreciation cannot be made applicable in parlance intensity in an Appeal which has been filed against the rejection of an objection under Order 21 Rule 97 of CPC.

The learned counsel for the appellant has placed reliance to a judgement, reported in 2010 (13) SCC 530, B.V. Nagesh and Another v. H.V. Sreenivasa Murthy, where it has been laid down that if the First Appellate Court has not framed the point of determination as contemplated under Order 41 Rule 31 of CPC, in an Appeal under Section 96, it would be an apparent flaw. A distinction is being carved out from the applicability of the said ratio in the present case. First of all, it is not to be treated in equivalence as an Appeal under Section 96, because it is an Appeal on an adjudication of an Application under Order 21 Rule 97 of CPC, at an execution stage and apart from it, since in the present case the learned appellate Court has already complied with the provisions contained under Order 41 Rule 31 of CPC by framing the point of determination and answering the same by the adjudication made by the Court, the said ratio, on which the reliance has been placed, will not be applicable. Apart from it, I am of the view that Order 41 Rule 31 can be used as defence but not as a weapon to defeat the purpose of justice of an expeditious and effective adjudication and merely hereto 40 when it intended to delay the execution of decree of 46 years old, it would be a grave mockery of judicial system.

A reference has also been made to the judgement reported in 2019 (6) 210, R.S. Anjayya Gupta v. Thippaiah Setty & Ors. by the learned counsel for the appellant, which provides that disposal of an Appeal in a cryptic manner without framing the point of determination under Order 41 Rule 31 of CPC by the learned Appellate Court, and straightway affirming the findings of the trial Court has been held out by the Hon'ble Apex Court, as to be an improper mode of adjudication of an Appeal. Rather para 18 of the said judgement has laid down that it is necessary for the First Appellate Court that means the First Appellate Court at the first instance where decree of regular suit is challenged it requires that all formulated issues raised on facts and law is required to be answered by the appellate Court upon rescrutinizing the evidence too. Since, yet again by way of a reiteration, it is observed that the said aspect was complied with hence the reference made to paras 17 and 18 of the said judgement would not be attracted in the instant second appeal, because para 17 was pertaining to the factual aspects of that case involved in the matter of R.S. Anjayya Gupta (supra), and it was not laying down any particular ratio, but, as far as para 18 of the said judgement is concerned, on which reliance has been placed, since the said provision was already complied with, it would not render the impugned judgements under challenge before this Court, at all to be suffering from any apparent legal vices of non compliance of Order 41 Rule 31 CPC, involving an adjudication of any substantial questions of law as claimed. Paras 17 and 18 of the said judgement are quoted hereunder:--

"17. In a recent decision of this Court in U. Manjunath Rao (supra), the Court after adverting to Santosh Hazari (supra), Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh and Ors.9, Madhukar (supra), H.K.N. Swami Vs. Irshad Basith (Dead) by LRs.10 and State Bank of India and Another Vs. Emmsons International Limited and Another 11 went on to observe thus:

"11. ...............Thus, in the first appeal the parties have the right to be heard both on the questions of facts as well as on law and the first appellate court is required to address itself to all the aspects and decide the case by ascribing reasons.

12. In this context, we may usefully refer to Order 41 Rule 31 CPC which reads as follows:

"ORDER 41 APPEALS FROM ORIGINAL DECREES * * *

31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and shall state--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while 9 AIR 1951 SC 120 (paragraph no.15) 10 (2005) 10 SCC 243 (paragraph no.3) 11 (2011) 12 SCC 174 affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi12, the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another threeJudge Bench in Santosh Hazari13. However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted 42 by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari has to be borne in mind.

14. In this regard, a threeJudge Bench decision in Asha Devi v. Dukhi Sao14 is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an "expression of opinion" in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse 12 AIR 1967 SC 1124 13 (2001) 3 SCC 179 14 (1974) 2 SCC 492 and arrive at the conclusion that the appeal is devoid of merit." In another recent decision in C. Venkata Swamy (supra), once again this Court reiterated the settled legal position regarding the purport of power of the appellate court coupled with its duty, under Section 96 of the Code, while deciding the first appeal, by adverting to decisions in Kurian Chacko Vs. Varkey Ouseph15, Santosh Hazari (supra), H.K.N. Swami (supra), Jagannath Vs. Arulappa and Another16, B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy17, S.B.I. (supra) and Union of India Vs. K.V. Lakshman and Others18. The court, even in this reported case relegated the parties before the High Court for reconsideration of the first appeal afresh.

18. We are conscious of the fact that in the present case the suit came to be filed by the respondent No.1 as back as in 1982 and that the present appeal has remained pending in this Court from 2009, against the impugned 43 judgment of the High Court. We, at one stage were persuaded to consider and examine the 15 AIR 1969 Kerala 316 16 (2005) 12 SCC 303 (paragraph no.2) 17 (2010) 13 SCC 530 (paragraph nos.3 and 5) 18 (2016) 13 SCC 124 matter on its own merits instead of relegating the parties before the High Court. But, it is noticed that the appellant has raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, in the first instance in exercise of powers under Section 96 of CPC.

Additionally, the High Court will have to address the grievance of the appellant that some of the documents, which in the opinion of the appellant are crucial have not been even exhibited although the same were submitted during the trial, as noted in the written submissions filed by the appellant. Therefore, we do not wish to deviate from the consistent approach of this Court in the reported cases that the first appellate court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit."

Identically, a reference is also made to the judgement reported in 2011 (4) SCC 240, H. Siddiqui (Dead) by LRs v. A Ramalingam. Reliance has been placed by the learned counsel for the defendant/appellant on paras 20 and 21 of the said judgement which are quoted hereunder:-

"20. The High Court failed to realise that it was deciding the First Appeal and that it had to be decided strictly in adherence with the provisions contained in Order XLI Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called CPC) and once the issue of alleged power of attorney was also raised as is evident from the point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property.

Order XLI, Rule 31 CPC:

21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration.

Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146;

Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G.Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380)."

The said judgement of H. Siddiqui (Supra), which was yet again is a reiteration of the principles laid down in the case of B.V. Nagesh (supra) with regards to the relevance of compliance of the provisions contained under Order 41 Rule 31 of CPC, which was laying down the wider guidelines which were required to be followed by the appellate Court before 45 deciding an appeal. Since the same was complied with, I am of the view that the said ratios, on which the reliance has been placed, will not apply in the present second appeal as the principles propounded therein stood complied by the First Appellate Court in its impugned judgement dated 21st October 2019.

On the other hand, the learned counsel for the caveator had placed reliance on a judgement as reported in AIR 1992 Cal 219, Dilip Nag v. Smt. Lilabati Garai, particularly he has made a reference has been made to para Nos. 5 and 6 of the said judgement which are quoted hereunder:-

"5. In my opinion if the door is opened for a regular trial to decide an application under Order 21, Rule 97 of the Code of Civil Procedure as has been submitted to be held by the Andhra Pradesh High Court (supra) and as the opinions of the editors of Mulla's and Sarkar's Code of Civil Procedure indicate, then a broad gate of unending litigations will be opened and the plaintiffs in majority of the cases in spite of their best efforts and in spite of good cases shall not be able to execute any decree during their lifetime. The plaintiff or the Decree Holder shall go on being obstructed by one person after another in obtaining possession of the property and ultimately it will become a fiasco. This will be total denial of justice to the plaintiff. This is most unpractical way of thinking that the amendments of the C.P.C. made in 1976 has changed the nature and character of adjudication of an application under Rule 97. The amended Rule 101 clearly indicates that "all questions including questions relating to right, title or nterest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by separate suit for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being n force, be deemed to 46 have jurisdiction to decide such question." The only difference in the new Rule 101 is that the executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the executing Court has the force and effect and is subject to the same condition as to appeal as if it was a decree and a suit is not maintainable to challenge the order. Under Rule 101 the Court has jurisdiction to decide all questions including the question of title before allowing the application, but this does not mean that the entire procedure de novo of a suit shall have to be followed. In the case of Bhagwat Narayan Dwivedi v. Kasturi a Division Bench of Madhya Pradesh High Court held that in an application under Order 21, Rule 97 of the C.P.C. the enquiry must be summary and the proceeding must be disposed of expeditiously, bearing in mind its scope and the limited question to be decided, . In my opinion this is the right approach even today.

6. In the light of the discussion made hereinbefore I find that the learned Judge of the City Civil Court at Calcutta has accepted in principle that the question of title might be gone into under Order 21, Rule 97 of C.P.C. and the disposal of the application must be expeditiously done on merit within its limited scope. Nowhere the learned Judge has indicated in the impugned order that he was not willing to go into the question of title. He simply said that there was hardly a scope for discovery and inspection of documents under Order 21, Rule 97 read with Order 21, Rule 101 of C.P.C. and rightly rejected the application. I endorse the order in question passed by the learned Judge and confirm it."

The aforesaid ratio of the Hon'ble Calcutta High Court has laid down that at the stage when the proceedings are being considered under Order 21 Rule 97 of CPC, the intricate consideration or an appreciation of evidence de novo at an execution stage, initiated by the decree-holder should not be determined in the manner to obstruct to reap the fruits of a decree by anyone, until and unless it becomes an absolutely impracticable for the enforcement of the judgement and decree 47 which sufferers from any apparent vices. Hence, the strict principles of Order 41 Rule 31 of CPC ought not to be attracted, in a straight jacketed formula, to defeat the decree or to prolong the execution of decree, which in the instant case is 46 years old decree, particularly by giving a colour to plaint of an adjudication made to an Application under Order 21 Rule 97 of CPC as to be a decree under Order 21 Rule 103 of CPC. It cannot be treated as to be a decree in equivalent consideration to a decree under Section 96 that is in a Regular Civil Appeal.

That learned counsel for the respondent/caveator has also made reference to the judgement as reported in 2000 (4) CCC 413, Sri Vaishnav Brahmin Trust, Jodhpur v. Ramesh Chandra & Ors., particularly, the reference has been made to para 21 of the said judgement which is quoted hereunder:-

"21. I may invite the attention of the learned court below to the legal position, as an Executing Court for its general guidance, that according to order 21 rule 97 CPC, wherever holder of a decree for possession of immovable property or purchaser of any such property is registered or obstructed by any person in possession of the property, he may make an application complaining of such resistance. These provisions have been interpreted by Hon'ble the Supreme Court in various judgements including Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (4) and Shreenath v. Rajesh (5) permitting the stranger to file objection and requiring such objection to be heard and decided by the Executing Court before dispossessing such objection.

According to sub rule (2) of rule 97, where any objection application is made under sub rule (1) the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. According to rule 101 all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court 48 shall be deemed to be having jurisdiction to decide such questions. Under rule 98 and ruled 100, upon determination of the question referred to in rule 101, the Court is to make order as contemplated therein. Rule 105 provides procedure for hearing of the application, according to which the court before which the application under any of the foregoing rules of this order is pending, may fix a day for the hearing of the application, on which date or on any adjourned date, if the applicant does not appear when the case is called on for hearing it may dismiss the application. Likewise if the opposite party does not appear Court may here the applications exparte and pass such order as it thinks fit. Of course, according to rule 103 the order made consequent upon adjudication under rule 98 or rule 100, is to have the same force and is subject to the same condition as to appeal or otherwise as if it was for a decree."

Another judgement on which the reliance has been placed by the respondent's counsel is that as reported in 2006 (3) SCC 224, G. Amalorpavam and others v. R.C. Diocese of Madurai and others, wherein the Hon'ble Apex Court in paras 9 and 12 of the said judgement has held as under:-

"9. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a 49 valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.

12. It has been categorically recorded by the High Court that the First appellate Court had considered the evidence led on behalf of the parties and has given finding to come to the conclusions arrived at. It noted that the lower appellate Court had independently considered the evidence and had given different findings on the issues framed by the trial Court and on the basis of the arguments which were advanced before it. It was further noted that there was detailed discussion giving reasons for affirming the order of the trial Court. Learned counsel for the appellants had urged that the suit filed by the plaintiff was not maintainable as the plaintiff was the diocese represented by its procurator. It was submitted that the plaintiff is not entitled to any relief as was prayed for in the suit. This point was not urged before the High Court and, therefore, it would not consider necessary to go into that aspect. Judged in the background of legal principles set out above the judgment of the High Court does not suffer from any infirmity."

As to what would be the gravity of substantial compliance of the provisions contained under Order 41 Rule 31 of CPC; it will have to be considered under the facts and circumstances of each case and the nature of adjudication made therein because there may be cases where a non compliance of the Order 41 Rule 31 of CPC may not vitiate the entire proceedings itself, like the present case, because even if there is substantial compliance, as it is in the present case in order to meet an effective adjudication of a dispute after consideration of all facts that itself will suffice the necessity of compliance of the provisions contained under Order 41 Rule 31 of CPC. Consequently, the Court holds that the application of Order 41 Rule 31 of CPC would be based upon the determination, which is required or called upon to be made by the Courts in each and 50 every case independently and not on a uniform principal as to the manner in which its compliance was required to be made. The spirit and purpose of the provisions contained under Order 41 Rule 31 is concerned, to have an effective considered adjudication by the first appellate Court, which is procedurally the last Court of fact and law. Thus it has been made mandatory to consider all vital issues determined by the learned trial Court. In the present case, the judgement debtor/appellant cannot abuse a process of law by raising a plea of Order 41 Rule 31 by developing a new case, even which was not a case even before the Trial Court, for example the rights claimed by sale deed dated 29th June 1970, which was in relation to a distinct property as held by documents and evidence on record.

The argument pertaining to in the light of the substantial question of law No. 'B', which reads as under:-

"B) Whether both the courts below were justified in allowing petition under Order 21 Rule 97 CPC of respondent no. 1 ignoring the preposition that the executing court cannot travel beyond the terms and nature of the decree and the same cannot be executed for what it was actually passed?"

It is to the effect that the Executing Court cannot expand the horizon of the case beyond the term of a decree itself, the said aspect was absolutely satisfied by the Court by holding a Commission, recording a finding and thereafter settling that the decree which has been sought to be executed, since it relates to a specifically demarcated property, bearing No. 139 Bharuwala, Clement Town, Dehradun. The execution contemplated therein by way of Case No. 3 of 1974 was exclusively confined to the extent of the said decree of 1973 only, and hence the said substantial question of law too does not arise for consideration 51 as to the manner in which it has been argued by the learned counsel for the defendant/appellant.

The provisions of Order 21 Rule 97 of CPC, contemplating the resistance or obstruction of a decree for possession as it was principally contained under the Code of Civil Procedure, it had undergone an amendment by an Act No. 104 of 1976, with effect from 1st February 1977. By virtue of the aforesaid amendment sub Rule (2) of Order 21 Rule 97 of CPC was substituted which reads as under:-

"97. Resistance or obstruction to possession of immovable property - (1) Where the holder of a 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."

The said part after the amendment w.e.f 1st February 1977 provided that an adjudication made to an Application under Order 21 Rule 97 of CPC has had to be proceeded in accordance with the provisions contained herein i.e. as contained under sub Rule (1) of Order 97. Meaning thereby, it was a procedural provision which was made applicable by way of an amendment with effect from 1st February 1977. The issue, which would be of consideration and according to the view of this Court too is that since in the present case the decree in question being that of 31st August 1973, in a suit being Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another and since that being a decree prior to the amendment and not even that since even the execution being Execution Case No. 3 of 1974, that too being prior to the amendment made by Act No. 104 of 1976 as 52 referred above, the question would be as to whether at all in view of the amendment made with effect from 1st February 1977, the procedure governing the adjudication of an Application under Order 21 Rule 97 of CPC, attracting the provisions of Order 21 Rule 103 of CPC by treating it as to be a decree be applicable and whether at all it could be made applicable even in those cases, where the judgement or the execution happens to be prior to 1st February 1977. Because, the applicability of Order 21 Rule 107 of CPC in view of the amendment made, I am of the view that would be with effect from 1st February 1977 and would not be applied to the execution or the suit, which was instituted prior to it or the suit adjudicated prior to the amendment or the execution which has been filed prior to the amendment and hence the procedure introduced by amendment thereafter in the provisions contained under Order 21 Rule 97 of CPC would not apply in its letter and spirit, in an execution which has already been filed earlier and was then proceeding as per the existing law, since amendment being procedural in nature will have prospective applicability; and would not apply to the executions which were already pending as on 1st February 1977.

In view of the aforesaid, the Second Appeal lacks merits and the same is hereby dismissed in limine, for the reason being :-

(i) The defendant/appellant has not come up with clean hands in approaching before this Court in Second Appeal by placing partial judgements and decree for its consideration, that what was finally adjudicating the Original Suit being Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and 53 another vide its decree dated 31st August 1973, the reason for it would be best known to the defendant/appellant.

(ii) The impugned judgements under challenge was an adjudication which was on an Application under Order 21 Rule 97 of CPC, is concluded by a concurrent findings of facts.

(iii) The concurrent findings have been recorded by both the Courts that in view of various Commissions report at the stage of execution that the execution has proceeded with regards to only in relation to the property which was the subject matter of a suit and it was not an execution sought beyond the decree as it has been sought to be pressed in his arguments; by the learned counsel for the defendant/appellant.

(iv) The plea of applicability of Order 41 Rule 31 of CPC has been complied with, because even the Appeal arising out of an adjudication of Order 21 Rule 97 of CPC had framed the point of determination and the learned Appellate Court has answered the same. Thus provisions of Order 41 Rule 31 CPC was complied.

(v) Because the objection filed by the judgment debtors under Section 47 of CPC was concurrently dismissed by both the courts and that has attained finality due to no challenge given to it by the appellant.

(vi) Because the judgment and decree principally rendered in Suit No. 66 of 1965 on 31.08.1973, has attained finality and was not challenged in regular civil appeal under section 96 of CPC.

(vii) Because the amendment made in Order 21 Rule 97 by Amending Act 104 of 1976 w.e.f 01.02.1977, since being procedural in nature would not govern the pending execution proceedings, which was instituted and was pending prior to 01.02.1977, in relation to a decree rendered earlier, hence the procedure would have prospective applicability.

(viii) Because the judgment debtor cannot take a new plea based on a fact which was in his knowledge when the suit itself was pending and was being adjudicated, i.e. sale deed 29.06.1970, which was basis of his claim of title; it was fact which was in existence and available to the appellant there which was never argued at trial stage, he cannot for the first time raise a new plea of fact at the stage of proceedings under Order 21 Rule 97 of CPC.

(ix) Because it had been held that the suit property or the property covered by the sale deed had been the distinct property altogether.

(x) Because since the status of the defendant/appellant has already been determined as to be that of the tenant his plea of being a licensee to attract the protection of Section 60 of the Indian Easement Act is not available to the defendant/appellant.

(xi) Because the fact of defendant/appellant being a tenant was already admitted by him in the statement which has been recorded by the predecessor of the defendant/appellant in the proceedings held before the court.

(xii) Because the plea of title over disputed property by adverse possession was contradictory in nature, to the plea of right by sale deed of 29.06.1970. Defense of title on basis of adverse possession cannot be in contradiction to a claim of title by deed of conveyance.

This Court is of the view that the Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another, was based on a cause of action in 1958 and adjudication of suit was made way back on 31st August 1973, in a Suit of 1965, which has attained finality because no Regular Appeal under Section 96 of CPC was filed by the Appellant, hence it cannot be permitted to be frustrated in a manner in which it has been sought to be pressed by the judgement debtor at the execution stage, whose status has already been concurrently determined as 55 to be that of a tenant and the said finding of he being a tenant of plaintiff No. 1 remained undisturbed and unchallenged by him before any superior forum which is concurrent in nature, appellant has no right as such. Because in view of the substitution which was made by the amendment made under Order 21 Rule 97 of CPC by the Act No. 104 of 1976 with effect from 1st February 1977, applying the procedures of Order 21 to the executions being subsequent in time, would not apply to the execution of a decree rendered on 31st August 1973, prior to the amendment and to the execution proceedings too which was filed prior to the amendment made on 1st February 1977. Consequently, this Court, for the aforesaid reasons, declines to exercise its jurisdiction under Section 100 of CPC and does not find any merits in the Second Appeal, consequently the same is dismissed in limine.

All pending applications stand disposed of.

(Sharad Kumar Sharma, J.) 12.03.2020 Mahinder/

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