Gauhati High Court
Hira Hussain & 2 Ors vs Laila Khatoon & Anr on 19 June, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 124 of 2014
HIRA HUSSAIN & 2 ORS. ... Petitioners
-Versus-
LAILA KHATOON & ANR. ... Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. G.N. Sahewalla, Sr. Adv.
: Mr. J. Roy, Mr. R. Hazarika, : Mr. C. Chakraborty, Mr. A. Dhar : Mr. A. Chetia, Ms. B. Sarma, : Ms. D. Swami.
Advocates for the Respondents : Mr. D. Das, Sr. Adv.
: Mr. Mr. R. Singha.
Date of hearing : 04.05.17, 30.05.17, 15.06.17.
Date of judgment and order : 19.06.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. A. Sahewalla, learned counsel appearing for the petitioners. Also heard Mr. Diganta Das, learned senior counsel assisted by Mr. R. Singha, learned counsel appearing for the respondents.
2) The challenge in this application under Article 227 of the Constitution of India is the order dated 10.03.2014 passed by the learned CRP 124/2014 Page 1 of 19 Munsiff No. 1, Jorhat in Misc.(J) Case No. 46/2009, arising out of T.Ex. Case No. 19/2004. By the said order the application filed by the respondents under the provisions of Section 47 read with Section 151 of the Civil Procedure Code (CPC for short), wherein it was prayed for restoration of the possession of the Schedule-B property to the respondents by evicting the petitioners was allowed.
3) This case has seen third round of litigation and, as such, only the facts and events relevant to the present application only is being put on record and this judgment is not burdened with other facts not necessary to be dealt herein.
4) It would be sufficient to mention that on 25.02.1980, one Smt. Salima Khatoon (since deceased), as plaintiff, had instituted T.S. No. 63/1980 which was tried in the court of Munsiff, Jorhat. There were nine defendants in the suit, namely, Tamizuddin Munshi, Syed Jalabuddin Ahmed, Syed Sahebjada Ahmed, Syed Mstan Ahmed, Sri Nirmal Ch. Ghosh, Sri Subhash Ch. Sarkar, Sri Amit Sarkar, Syed Noor Ahmed @ Maju, and Smti. Khairunnissa. The suit was for declaration of right, title, interest and possession in respect of premises described in Schedule-A of the plaint, which consisted of 3 rooms within a definite four boundary.
5) Late Sagra Khatoon was the mother of the plaintiff. She died on 06.01.1980 leaving behind the plaintiff (daughter), Defendant No.1 (son), Defendant No.8 (son), defendant No.9 (daughter), and defendants No.2, 3 and 4 (grandsons, being sons of defendant No.1). During her lifetime, Sagra Khatoon had gifted away the three suit rooms along with land to the plaintiff by executing a Gift Deed which was registered as Deed No. 3758 dated 15.09.1979. The plaintiff had accepted the gift and got the possession.
CRP 124/2014 Page 2 of 196) The said T.S. No. 63/1980 was decreed on 18.08.1982 in favour of the plaintiff allowing the eviction of defendants No. 1 to 4 from the suit premises described in Schedule-A. The petitioners herein are the substituted legal representatives of the plaintiff in the suit. As per the decree drawn up in T.A. No. 63/1980, the description of Schedule-A is as follows:
"Southern three rooms of pacca C.I. sheet roofing house with front and back verandah. No. 1 Room is the southern most room rented out to Deft. 7 Amrit Sarkar where Sahitya Bhavan located. No. 2 Room is the 2nd room from the south rented out to deft. No. 5 Nirmal Ch. Ghosh, where quick photo house located. No. 3 room from the south rented out to deft. No. 6 where Subhas Cycle Mart located. These three room are bounded on the South- Masjid's house North- Other rooms of the house possessed by Syed Saidulla Khan where Rajasthan Tailor locates at present. East- Land covered by Dag No. (old) 101 (new) 687. West- Mariani- Jorhat PWD Road. These three rooms are on Dag No. 683, 686 at Mariani Town Katani Mouza."
7) The defendant No. 1 therein, namely, Tamizuddin Ahmed preferred an appeal said decree dated 18.08.1982. The said appeal was numbered as T.A. No. 53/1982 and the same was dismissed by the learned Civil Judge, Jorhat by judgment and decree dated 02.04.1985. The defendant No. 1, namely, Tamizuddin Ahmed preferred a Second Appeal before this Court, which was numbered as S.A. No. 100/1985. During the pendency of the said appeal, the defendant No. 1, namely, Tamizuddin Ahmed had died and he was substituted by the present respondents, namely, Laila Khatun and Mehtab Ahmed. The said S.A. No. 100/1985 was also dismissed by this Court vide judgment dated 07.08.1992. This was the end of the first round of litigation.
CRP 124/2014 Page 3 of 198) The petitioners filed an application in order to execute the decree, which was registered as T. Ex. Case No. 19/2004.
9) In the said execution proceedings, the present respondents filed a petition under Section 47 of the CPC, which was dismissed by the learned Executing Court by its order dated 15.10.2004. Challenging the validity of the said order dated 15.10.2004, the respondents filed a revision petition before this Court, which was registered as CRP No. 243/2004. The said revision was also dismissed by judgment and order dated 10.12.2004. This ended the second round of litigation.
10) The said decree dated 18.08.1982 passed in TS No. 63/1980 was closed by order dated 12.01.2005, recording the full and final satisfaction of the decree on the basis of report given by the Civil Nazir and receipt of delivery of possession by the decree holders.
11) Thereafter, the respondents filed an application under Section 144 read with Section 151 of the CPC, stating therein that the Civil Nazir had handed over a fourth room as well as a two storied RCC building and, as such, there was an excess execution beyond the decree and therefore, it was prayed for restitution of the properties which were given in excess of the decree. The said application was registered as Misc. (J) Case No. 2/2005 and the same was dismissed by order dated 12.04.2005, inter-alia, holding that the decree was legally and lawfully executed by the Civil Nazir with the help and assistance of the concerned Lat Mandal and Police in presence of the petitioners therein and other persons by taking all care to give possession as per four boundary shown in the schedule of warrant issued to the Bailiff. It is further mentioned therein that moreover, the petitioners in their application have claimed compensation of Rs.5,00,000/- without specifically mentioning against whom the compensation should be ordered. This lay to rest the third round of litigation.
CRP 124/2014 Page 4 of 1912) After about two years, the respondent herein filed T.S. No. 91/2007, which was tried in the Court of learned Munsiff No. 2, Jorhat. In the said suit, the respondents herein had prayed for declaration of right, title, interest and recovery of khas possession of the two storied building. The said suit was dismissed by the learned Munsiff No. 2, Jorhat vide judgment and decree dated 27.01.2009. The respondent herein preferred an appeal, which was registered as T.A. No. 9/2009. The learned Single Judge, Jorhat dismissed the said appeal by its judgment and decree dated 30.05.2009. This ended the fourth round of litigation.
13) Thereafter, the present respondents started the fifth round of litigation by filing a second application under Section 47 read with Section 151 of the CPC in connection with T.A. No. 19/2004, which was numbered as Misc.(J) Case No. 46/2009. By the said petition, the respondents had prayed for restoration and possession over the two storied RCC building described in Schedule-B of the said petition by evicting the petitioners therefrom. The learned Munsiff No. 1 by the impugned order dated 19.03.2014 allowed the said Misc.(J) Case No. 46/2009, directing the restoration of the possession of the RCC building to the petitioners. Challenging the said order, the petitioners have filed the present application. This Court, while issuing notice in this revision, by order dated 10.04.2014, had stayed the operation of the impugned order. By the said order, it was also directed that an attempt would be made to dispose of this application at the admission stage, as such, the matter has been taken up for hearing.
14) Mr. G.N. Sahewalla, the learned Senior Counsel appearing for the petitioners has submitted that by virtue of the Gift Deed, which is available in the trial court record, a plot of land measuring 40 feet X 200 feet, which existed there with the shop rooms were all gifted to the predecessor-in- interest of the petitioners. It is submitted that while passing the impugned CRP 124/2014 Page 5 of 19 order, the learned Munsiff No. 1, Jorhat (hereinafter referred to as the "executing court") did not appreciate that in the first appellate judgment rendered in T.A. No. 9/2009, it has been specifically held that the respondents had failed to prove their right, tile and interest along with three rooms over the two storied RCC building. He had laid stress on the relevant paragraph No. 18 of the first appellate judgment in T.A. 9/2009, which is reproduced herein below:
"18. On scrupulous perusal of the evidence of the witness of the appellants, I have found that the appellants miserably failed to prove their right, title and interest over the two storied building. I have no hesitation to hold that not to speak about the better title, the appellants failed to prove prima facie title over the suit house. Producing a huge number of witnesses cannot prove a fact to be true or false. It is the quality of evidence that it necessary in this case. Needless to say that title overran immovable property can be acquired by some distinct manners like sale, inheritance and gift. (The appellants miserably failed to show as to how they acquired title over the suit house. Mere possession over a property does not amount to having title over the same). Hence, I hereby hold that the appellants have no right, title or interest over the suit house. This issue is answered in negative."
15) It is further submitted that the aforesaid finding, had attained finality insofar as relates to the present respondents having no right, title and interest over the said suit property. It is further submitted that it is an admitted case of the respondents in paragraph 6 of CRP No. 243/04 that the additional constructions over and above the three suit rooms was made on obtaining permission from the Mariani Town Committee on 20.03.2004. Hence, the said construction were not pre-existing, but had come up during CRP 124/2014 Page 6 of 19 the pendency of the execution case, and after long after the second appellate judgment was delivered by this Court.
16) It is submitted that as per the first appellate judgment rendered in T.A. No. 2/2009, it was specifically held in connection with issue No. 2 that the appellants had measurably failed to prove their right, title interest over the two storied RCC building and they had no prima-facie title over the said house, the respondents herein had no locus to intend a second application under Section 47 of the Code as the finding of absence any right, title and interest in the said appeal had attained finality. By referring to the five rounds of chequered history of litigation, it is submitted that the present series of litigation, which had commenced in the year 1980 is still pending for 37 years now.
17) The learned Senior Counsel for the petitioner has relied on the following case law citations:
a. R.P.A. Valliammal v. R. Palanichami Nadar, (1997) 10 SCC 209. b. Duraisami Mudaliar v. Ramasami Chettiar & Anr., (1979) 1 Mad.L.J. 380 (print-out from 'The Laws'.).
c. B. Gangadhar v. B.R. Rajalingam, (1995) 5 SCC 238.
d. G. Vanaja v. K. Ramasamy, (2014) 8 Mad.L.J. 735 (print-out from 'The Laws').
18) Mr. Diganta Das, the learned senior counsel has argued in support of the impugned order. He has referred to paragraph 22 of the first appellate judgment dated 30.05.2009 passed by the learned Civil Judge, Jorhat in T.A. No. 9/2009. The said paragraph is quoted below:-
"I am of the considered view that the evidence of the respondent Jagat Rajkhowa is sufficient to decide this issue. The respondent was authorised to handover the vacant possession of the three rooms to the decree holder. He was not at all authorised to hand CRP 124/2014 Page 7 of 19 over any land. When he handed over the land within the given four boundaries, he, in fact, handed over the possession of the two storied building which is situated within the four boundaries to the decree holder. This, I have no hesitation to hold that this is a case of excess execution. The respondent Jagat Ch. Rajkhowa illegally handed over the two storied building to the decree holder, because the aforesaid building (schedule-B property) was outside the purview of T. Ex. 19/04. I answer this in affirmative."
19) It is submitted that the said finding of the learned first appellate court in T. A. No. 9/2009 had attained finality. Therefore, this was sufficient to prove the case of the respondent that this was a case of excess execution and the two storied R.C.C. building was illegally handed over to the petitioner herein. It is also submitted that as per the provisions of Section 47 CPC, any dispute which arise in respect of execution must be raised before the executing court. Hence, it was on this count that the second filed by the respondents was held to be not maintainable and, as such, the respondents had not committed any wrong to approach the learned executing court once under the provisions of Section 47 CPC. Therefore, the said application, which was registered as Misc. (J) Case No. 46/2009 was maintainable and resultantly, the impugned order also suffered from no legal infirmity and the same was liable to be upheld.
20) It is submitted that the respondents had rightly approached the executing court by filing an application under Section 47 CPC for settling the controversy between the parties which arose out of excess execution being carried out in favour of the petitioners herein. It is further submitted that by no stretch of imagination can the petitioners/ decree-holders to get property more that what had been decreed. The learned senior counsel appearing for the respondent has submitted that once it is proved to the satisfaction of the CRP 124/2014 Page 8 of 19 court that the execution was an excess of the decree, such an execution would amount to illegality and fraudulent and as fraud had vitiated the execution proceedings, the same was required to be set right by entertaining the application under section 47 of the Code.
21) In order to counter the submissions made by the learned senior counsel for the petitioners, it was submitted that there was no injunction operating against the respondents at any point of time. Therefore, when the petitioners had not objected to such construction at the time when it was being raised, the petitioners were only entitled to the suit rooms contained the decree and the petitioners had illegally evicted the respondents from the other portion of the double storied RCC building, standing outside the decreetal suit rooms and, as such, the respondents were rightly held to be entitled to restitution of the remaining property, which was handed over to the petitioners in excess of the decree.
22) In support of his contentions, the learned Senior Counsel for the respondents has referred to the impugned order to show that Jagat Ch. Rajkhowa, the Bailiff, who was made as party both in his personal capacity as well as in his official capacity in T.S. No. 91/2007, had specifically stated in his cross examination that he had given possession of four rooms by exceeding his powers which was not conferred to him by the executing court and he has further admitted the dispossession of the respondents from the two storied RCC building. It was pointed out that the learned executing court had arrived at a categorical finding that from the perusal of decree, it is revealed that the decree-holders/petitioners herein were given the right, title and interest over the suit rooms and direction was passed to deliver the khas possession of the three suit rooms with the front and back verandah but from the report of the Bailiff, it is revealed that the Bailiff had given possession of the land, three suit rooms with front and back verandah found within the boundary together with a RCC building standing in the land. He has also CRP 124/2014 Page 9 of 19 referred to the further finding that there was no averment from the petitioners herein that the RCC building was constructed by changing the nature and character of the three suit room with front and back verandah. The learned senior counsel for the respondents, therefore, justifies the impugned order for restoration of possession of the RCC building to the petitioner.
23) I have considered the rival submissions made by the learned senior counsels for both sides and have considered the materials on record. This court by order dated 13.02.2017, had called for the record of CRP No. 243/2004 which was disposed of by judgment dated 10.12.2014. The said record has also been perused.
24) There is no dispute at the Bar that Late Sagra Khatun had gifted three suit rooms together with land thereunder to Smt. Salima Khatoon (since deceased) vide registered gift deed no. 3758 dated 15.09.1979 and got possession of the land. Thereafter, she instituted T.S. No. 63/1980 in the Court of Munsiff, Jorhat for recovery of the three suit rooms only which specific four boundaries as mentioned in the schedule of the plaint. The said suit was decreed in favour of the plaintiff on 18.08.1982 for evicting the defendant 1 to 4 therefrom. Against the said decree, the respondents preferred T.A. No. 53/1982, which was dismissed on 02.04.1985. Thereupon the respondents preferred Second Appeal No. 100/1985 before this Court, which was also dismissed by judgment dated 07.08.1992, inter-alia, holding that the gift deed to be valid. Thereafter, the decree was thereafter put to execution which was registered as T.Ex. Case No. 19/2004. In the said execution proceeding, the respondents had filed the petition under Section 47 CPC and they also filed the show cause under Order XXI Rule 22 of the CPC. The learned execution court had dismissed the petition filed under Section 47 of the Code by holding, wherein it is mentioned that "the judgment debtors are constructing RCC building over the suit land and hence, are trying to CRP 124/2014 Page 10 of 19 delay execution of the decree". It was further observed that "they have got every right to execute the lawful decree for eviction of the judgment debtor from the suit property." On the reasons as assigned in the said order, the petition No. 1220/04 and 1339/04 filed by the judgment debtor under Section 47 of the Code was held to be devoid of any merit and the same was rejected by order dated 15.10.2004. Thereafter, the said decree was executed and as per order dated 12.01.2005, as per which the belief of the court had given possession of the decree and land of house to the decree holder in presence of witnesses and the decree holders (petitioners herein) had issued a receipt of delivery of possession of the decreetal property and, as such, the execution case was closed on full and final satisfaction. Thereafter, the respondents had filed petition No. 86/2005 under Section 144 read with Section 151 of the CPC for restoration of the fourth room as well as the two storied building, except the three suit rooms. The said petition was numbered as Misc.(J) Case No. 2/2005, which was also dismissed by order dated 12.04.2005, inter-alia, observing that "the decree was legally and lawfully executed by the Nazir with the help and assistance of the concerned Lat Mandal and Police in the presence of the petitioners and other persons by taking all care to give possession as per four boundaries shown in the schedule of the warrant issued to the Bailiff". Thereafter, the respondents herein had instituted T.S. No. 91/2007, which was tried by the Court of Munsiff No. 2, Jorhat. In course of trial, the following issues were framed:
1) Whether there is cause of action for the suit of the plaintiffs?
2) Whether the plaintiff No. 1 has right, title and interest over the suit house?
3) Whether the suit is bad and not maintainable for want of notice U/s 80 CPC?
4) Whether the suit is bad for non-joinder of necessary parties?
5) Whether the defendant No. 1 and 2 acted illegally by handing over the possession of the suit house which was not the subject CRP 124/2014 Page 11 of 19 matter of the decree in T.S. 63/80 (T. Ex. 19/2004) and was also beyond the preview of the writ of execution?
6) Whether the plaintiff No. 1 is entitled to a decree as prayed for?
7) To what reliefs, the parties are entitled to?
8) Whether the suit is not maintainable in law as well as on fact.
25) It is seen that the said suit was dismissed by judgment and decree dated 21.07.2009, by holding that the suit to be not maintainable. The said judgment and decree was challenged by filing T.A. No. 9/2009, which was also dismissed by first appellate judgment and decree dated 30.05.2009. After the said first appellate judgment and decree had attained finality, the respondents filed another application before the executing court under Section 47 read with Section 151 of the Code in connection with T.Ex. Case No. 19/2004, which was registered as Misc. (J) Case No. 46/2009 in which the impugned order dated 10.03.2014 was passed, which is the subject matter of the present application. It is also observed that in paragraph 6 of CRP No. 243/2004, the respondents herein has made a categorical statement they were under the bonafide impression that they are the lawful owners of the suit property and had right, title and interest over the said suit property and, as such, they had invested a huge sum of money in the development of the suit land and had constructed RCC building by obtaining permission on 20.03.2004 from the Marinai Town Committee for construction of RCC building upon the suit land. Therefore, it appears to be an admitted case of the respondent that the construction of the RCC building was done in the year 2004, by which time not only T.S. No. 63/1980 was decreed on 18.08.1982, against the respondent, their T.A. No. 53/1982 was also dismissed and the decree passed by the learned Trial court had attained finality by dismissal of S.A. No. 100/85 by this Court by judgment and decree dated 07.08.1992.
Therefore, the RCC structure, which was built within the boundary of the decreetal premises, was created at the own risk of the respondent.
CRP 124/2014 Page 12 of 1926) In my considered opinion there is nothing on record to show that at the time when the suit was filed and decreed, there was any structure other than the suit rooms within the boundary described in the schedule of the decree. Therefore, in the absence of any evidence of right, title and interest of the respondent over the land beneath the suit rooms within the four boundaries of the decreetal property and, as such, without establishing their independent right title and interest over the RCC building or the land beneath it, the respondents cannot claim to be entitled to be restored of the possession of any space within the four boundaries of the suit property described in the decree in reference, because the said structure had come up after the suit was decreed and the decree attained finality and during the pendency of the execution proceeding. Moreover, the right, title, interest and entitlement to possession claimed by the respondents was lost with the dismissal of the T.S. No. 91/2007. Therefore, with that, the respondents are deemed to have lost any right to be restored of the possession of any part of the said R.C.C. building, which is within the four boundary of the decreetal property. In this connection, I find support from the case of R.P.A. Valliammal (supra). The relevant finding in paragraph-2 thereof is quoted below:
"2. ... It is not in dispute that petitioner's mother had already agitated the right title to the property and claimed that to the extent of her right, the execution was not valid in law. That right having been negatived and having become final, the petitioner cannot have any higher right than the mother herself had. The petitioner having allowed the orders to become final, it would not be open to the petition to raise the contentions thereafter. Even otherwise also, as held by the High Court, the objection as to excess execution has not been raised. Though Order 21, Rule 90(3), CPC may not be strictly construed so as to the put a fetter on the Court, due to non-raising of the objection before proclamation of sale and the objection could be raised even at a later stage, but since the title has already been lost and has become final, the petitioner cannot agitate the executability of the decree in the absence of any legal title to question the correctness CRP 124/2014 Page 13 of 19 of the execution. Under these circumstances, we do not think that we would be justified to exercise the power under Article 136 of the Constitution."
27) Therefore, in my considered opinion, as there was a lawful decree in existence, the decree holder would not be required to file a fresh suit or proceeding against any construction that had been made after the decree was passed and had attained finality. The said constructions were at the risk of the respondents. Though in excess, the execution is held to be rightly proceeded. In this regard, I find support from the cases of (i) B. Gangadhar v. B.R. Rajalingam, (1995) 5 SCC 238, (ii) G. Vanaja v. K. Ramasamy, 2014 (8) M.L.J. 735, and (iii) Duraisami Mudaliar v. Ramasami Chettiar & Anr., (1979) 1 M.L.J. 380, which were cited by the learned Senior Counsel for the petitioners.
28) The relevant extracts of paragraphs 6 and 8 of the case of B. Gangadhar (supra) are quoted below:-
"6. ... Ownership chiefly imports the right of exclusive possession and enjoyment of the thing owned. The owner in possession of the thing has the right to exclude all others from the possession and enjoyment of it. If he is wrongfully deprived of what he owns, the owner has a right to recover possession of it from the person who wrongfully gets into possession of it. The right to maintain or recover possession of a thing as against all others is an essential part of ownership. Ownership implies not so much the physical relation between the person and the thing as the relation between the person owning and the thing owned. Ownership is pre- eminently a right. The right to ownership of a property carries with it the right to its enjoyment, right to its access and of other beneficial enjoyment incidental thereto. If any obstruction or hindrance is caused for its enjoyment or use, the owner, of necessity, has the remedy to have it removed. If any obstruction is raised by putting up a construction pendente lite or prevents the passage or right to access to the property pendente lite, the plaintiff has been given right and the decree-holder is empowered to have it removed in execution without tortuous remedy of CRP 124/2014 Page 14 of 19 separate suit seeking mandatory injunction or for possession so as to avoid delay in execution or frustration and thereby defeat the decree. The executing court, therefore, would be justified to order its removal of unlawful or illegal construction made pendente lite so that the decree for possession or eviction, as the case may be, effectually and completely executed and the delivery of possession is given to the decree holder expeditiously. Admittedly, pending suit the petitioner had constructed shops and inducted tenants in possession without permission of the court. The only course would be to decide the dispute in the execution proceedings and not by a separate suit."
"8. Rule 35(3) of Order 21 itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the Court executing the decree is entitled to pass such incidental, ancillary or necessary others for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment-debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any construction on the property pending suit, the decree-holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the Court. Otherwise, the decree becomes inexecutable driving the plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings."
29) In the case of G. Vanaja (supra), the Hon'ble Madras High Court has held as follows:
"21. In a suit instituted for declaration of title and recovery of possession, the legal heirs of the judgment debtor filed an application under Section 47 of C.P.C. contending that there is CRP 124/2014 Page 15 of 19 no decree for removal of superstructure. This Court in 2007 (1) CTC 217 -Madaswamy vs. Govindaraj found that the construction was made pendente lite and relying on the principles laid down in the judgment of the Hon'ble Apex Court in B. Gangadhar Vs. B.G. Rajalingam -1996 (1) CTC 271, directed the Executing Court to deliver vacant possession of the suit property. Paragraph No.17 of the judgment is extracted hereunder:
"17. When the construction was made pendente lite, the Executing Court ought to have ordered removal of obstruction of the superstructure made pendente lite. It cannot be disputed that the respondent was trying to prevent execution of the Decree in one way or other. In that view of the matter, the impugned order is to be set aside, directing the Executing Court to deliver possession of the suit lane after removal of the obstruction or demolition, as the case may be. As per the decision of the Supreme Court, in the case cited supra, what is relevant is only a warning by the Bailiff, to deliver peaceful possession and if the respondent causes obstruction, the Bailiff is entitled to remove the obstruction, cause the construction demolished and deliver vacant possession to the Decree-Holder in terms of the Decree."
22. Further, despite the fact that the petitioners were impleaded as defendants in the suit, they have not raised their objection to identify the suit property nor it is the case of the petitioners that they are in possession of any other property, besides the suit property. Admittedly, the petitioners have not agitated the factual issues in the suit proceedings and hence they are estopped from raising the said issue in the Executing Proceedings.
23. In the case on hand, it is even admitted by the petitioners that they were inducted after institution of the suit and the superstructure were put up pending suit. Keeping in mind the principles laid down by this Court referred to supra, the contentions of the petitioners that there is no proper description of property in the decree and the decree is inexecutable, as there is no decree for mandatory injunction, cannot be accepted.
CRP 124/2014 Page 16 of 1924. Indisputably the petitioners have put up superstructures pendente lite. Therefore, I am of the considered opinion that the judgments relied on by the petitioners for seeking compensation of the improvements are not applicable to the facts of this case and the principles laid down in 2007 (1) CTC 217 - Madaswamy vs. Govindaraj, referred to supra, would be squarely applicable to the present case."
30) The relevant finding in paragraph 3 of the case of Duraisami Mudaliar (supra) is quoted below:
"3. There will not be any difficulty with reference to a case where the superstructures came to be put up by the defendant either during the pendency of the suit or after the decree. In such a case, in execution of the decree for possession, the executing Court can order the removal or demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in Narain Singh v. Imam Din A.I.R. 1934 Lah. 978 and that has been followed by D.S. Mathur, J., in Mohd. Ismail v. Ashiq Hussain, suggesting appropriate directions according to the needs of particular cases."
31) This court further reiterates that as the title suit filed by the respondent i.e. T.S. No. 91/2007 was dismissed and the appeal filed against the decree of dismissal was also dismissed and the first appellate judgment rendered in T.A. No. 9/2009, having attained finality, any semblance of any sought of right, title, interest or possession which the respondent had over the two storied RSS building got extinguished. Hence, the learned executing court is found to have misdirected itself by passing the impugned order dated 19.02.2014, to restore the possession of the two storied R.C.C. building, save and except the suit rooms, to the respondents. If the same is allowed to stand, it would amount to acknowledgment of the respondents' right, title and interest over the said building, whereas the dismissal of suit had nullified the existence of such right against the respondents. The present case is not a case where the building existed at the time of filing the suit or when the decree was passed an upheld in second appeal and, as such, there was no CRP 124/2014 Page 17 of 19 omission by the petitioners to pray for reliefs in respect of the said building in the suit. As extracted above two of the issues in T.S. No. 91/2007 were - "(2) whether the plaintiff No. 1 (respondent No.1 herein) has right, title and interest over the suit house? and (5) Whether the defendant No. 1 and 2 acted illegally by handing over the possession of the suit house which was not the subject matter of the decree in T.S. 63/80 (T. Ex. 19/2004) and was also beyond the preview of the writ of execution?", were both decided against the respondents, as such, the learned court below is found to have erred in law in passing the impugned order for restoration of possession in light of dismissal of T.S. No. 91/2007.
32) This court is of the further opinion that every lis or proceeding must come to an eventual and. If an aggrieved party is permitted to endlessly prosecute the decree holder, there is bound to be a difference in opinion by one court or the other and one view may be diametrically opposite to the other. The scheme of the Civil Procedure Code is to avoid multiplicity of suits and proceedings. This court is making this observation as it has been noticed that not only T.S. No. 63/1980 was decreed and the said decree was upheld up to the second appellate court, wherein the gift deed was held to be valid. Thereafter, the decree was challenged by filing an application under Section 47 of the CPC, which was also dismissed by order dated 15.10.2004. Thereafter, the respondent challenged the satisfaction of the decree by filing the petition under Section 144 read with Section 151 of the Code and even after the same was dismissed, T.S. No. 91/2007 was instituted which was dismissed and thereafter T.A. No. 9/2009 was also dismissed. Therefore, it was the duty of the learned court below to have noticed that the respondents had exhausted all available remedies, as such, the learned court below is held to have erred in law in entertaining a second application under Section 47 of the CPC. This Court is, therefore, constrained to hold that the second application under Section 47 of the Code was itself a nullity and the same was CRP 124/2014 Page 18 of 19 void ab initio, which ought not to have been entertained in the first place. Consequently, even on that ground, the impugned order dated 19.03.2014, is not found to be sustainable. In this connection if any authority is required only by referred to the case of R.P.A. Valliammal (supra), wherein it has been held by the Hon'ble Apex Court that the opportunity to executability of the decree could be taken only once and repeated application was held to be unwarranted. In that case the Hon'ble Apex Court had also observed that since the title has already been lost and has become final, the petitioner cannot agitate the executability of the decree in the absence of any legal title to question the correctness of the execution. In the present case in hand, I find the said observation of the Hon'ble Apex Court appropriately and aptly applies.
33) The cumulative effect of the opinion expressed by this court, as above, is that the impugned order dated 19.03.2014, passed by the Court of learned Munsiff No. 2, Jorhat in Misc.(J) Case No. 46/2009, by directing the restoration of the possession of R.C.C. building to the respondent, suffers from jurisdictional error for the reasons as indicated above. Hence, this Court has no hesitation in setting aside and quashing the same.
34) Accordingly, this revision stands allowed. The parties are left to bear their own cost.
35) De-tag the records of CRP 243/2004. Let the "Lower Court Records"
be returned forthwith.
JUDGE Mkumar.CRP 124/2014 Page 19 of 19