Allahabad High Court
Santosh Singh vs Smt. Suman Shukla And Anr. on 19 September, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In The High Court Of Judicature At Allahabad Sitting At Lucknow Neutral Citation No. - 2024:AHC-LKO:67390 A.F.R. Reserved Judgment Reserved On 11.09.2024 Judgment Delivered On 19.09.2024 Court No. - 19 Case :- S.C.C. REVISION No. - 1 of 2023 Revisionist :- Santosh Singh Opposite Party :- Smt. Suman Shukla And Anr. Counsel for Revisionist :- Km. Vishwa Mohini,Vimal Kumar Hon'ble Subhash Vidyarthi J.
1. By means of the instant revision filed under Section 25 of the Provincial Small Cause Court Act, 1887, the revision-petitioner has prayed for setting aside the judgment and an order dated 21.05.2022 passed by the learned Additional District Judge/Special Judge, P.C. Act, Court no. 3, Lucknow in Miscellaneous Case No. 39-C of 2013, which was registered upon an application under Order XXI Rules 97, 98, 99 read with 101 of Civil Procedure Code filed in Execution Case No. 01 of 2013, which execution case was filed for execution of the ejectment decree passed by the learned Additional District Judge, Court no. 13, Lucknow in SCC Suit No. 72 of 2010.
2. The aforesaid SCC Suit was filed by the revision-petitioner against the opposite party no. 2 - Santosh Shukla pleading that the petitioner was the owner and landlord of House 294/90 situated at Mohalla Bazar Khala, Lucknow. The defendant was his tenant in respect of one of the shops situated on the ground floor of the building at Rs 3,000/- per month rent. The defendant did not pay rent to the plaintiff-revisionist after April, 2009 and he was in arrears of rent since 01.05.2009. On 11.06.2010, the plaintiff had sent a notice under Section 106 of the Transfer of Property Act which was served upon the defendant but the defendant did not pay rent of the premises to the plaintiff and he did not vacate the shop in his tenancy. As there was a typographical error in the notice dated 11.06.2010, inasmuch instead of a single door shop, a two door shop was wrongly been mentioned in the notice, the plaintiff sent another notice dated 12.07.2010. The defendant sent a reply dated 03.07.2010 denying the averments made in the plaintiff's notice.
3. The trial court has recorded in the judgment and order dated 12.04.2013 that the summons of the Suit was deemed to be sufficient on 03.02.2012 as the defendant had declined to receive the notice and on 30.03.2012 the Suit was ordered to proceed ex-parte. The trial court has made a narration of the documentary evidence filed by the plaintiff and his affidavit filed in evidence. The trial court reproduced the plaint averments and noted that in the reply dated 03.07.3010 sent in response to the notice under Section 106 of the Transfer of Property Act, the defendant had denied the relationship of landlord and tenant between him and the plaintiff. The trial court mentioned that the plaintiff had filed counterfoils of receipts for payment of rent dated 01.07.2008, 01.08.2008, 03.09.2008, 02.01.2009, 02.02.2009, 04.03.2009 and 01.04.2009 alongwith a list of documents filed with the plaint and held that the defendant has not filed any evidence to rebut the plaintiff's evidence and, therefore, the plaintiff's case was proved ex-parte. Accordingly, the plaintiff's suit was decreed.
4. The opposite party filed an application under Order IX Rule 13 C.P.C., which was registered as Miscellaneous Case No. 28-C of 2013. However, it was dismissed by means of an order dated 07.10.2016 wherein it is recorded that the applicant's counsel stated that he did not want to press the application.
5. The plaintiff-revisionist filed Execution Case No. 1 of 2023 for execution of the decree dated 12.04.2013 passed in S.C.C. Suit No. 72 of 2010.
6. The opposite party no. 1 - Suman Shukla filed an application under Order XXI Rules 97, 98, 99 read with 101 C.P.C. in Execution Case No. 1 of 2023. This application was registered as Miscellaneous Case No. 39-C of 2013. The opposite party no. 1 stated in the application that she has purchased the shop in question from Shyam Lal son of Sunder Lal through a sale deed dated 14.03.2012, which was registered in the office of Sub Registrar-V, Lucknow in Book No. 1, Volume 7518 at pages from 197 to 234 at Serial No. 2797. House No. 294/90 Mohalla Bazar Khala is a big house, a portion whereof has been sold by Shyam Lal to opposite party no. 1. Shyam Lal has sold another portion of the house to Sayeed Ahmad and Smt. Radha Agarwal and some other tenants are in occupation of a third portion of the house of Shyam Lal for the past several years. The opposite party no. 1 further stated that her husband Santosh Shukla (opposite party no. 2) is a person of low intellect and she bears the responsibility of bringing up and educating her children. Upon coming to know that the opposite party no. 1 has purchased the shop from Shyam Lal, the revisionist Santosh Singh started harassing her, due to which she had filed Regular Suit No. 320 of 2012 in the court of Civil Judge (Senior Division), Mohanlalganj, Lucknow for a decree of perpetual injunction. From the documents filed by the revisionist in the aforesaid Suit, the opposite party no. 1 came to know about S.C.C. Suit No. 72 of 2010 and the ex-parte judgment and decree dated 12.04.2013 passed therein as also the Execution Case No. 1 of 2023. She stated that the revisionist had filed the Suit against the husband of the opposite party no. 1 - who is a person of low intellect and had obtained the ex-parte judgment and decree dated 12.04.2013 fraudulently, whereas Santosh Singh is neither owner of the shop in question nor is he the landlord. She stated that the house in which the shop in question is situated, was ancestral property of Shyam Lal and having purchased the shop from Shyam Lal, the opposite party no. 1 is the owner and in possession of the shop. The opposite party no. 1 prayed that an order be passed on the points raised by her, the ex-parte decree dated 12.04.2013 passed in S.C.C. Suit No. 72 of 2010 be set aside and the revisionist be restrained from interfering in her possession of the shop.
7. The revisionist filed objections against the aforesaid application inter alia stating that the opposite party no. 1 has obtained a sale deed from a person, who has never been the owner of the property in question. The opposite party no. 1 was not a party to the Suit in which the decree has been passed and, therefore, she cannot file any objection in the execution proceeding. The opposite party no. 1 could have filed a separate Suit for adjudication of her rights. The revisionist claimed that he was the owner of the property in question by virtue of the last will deed dated 15.03.1980 executed by its previous owner Sri Kedarnath.
8. The learned Additional District Judge/Special Judge, PC Act, Court no. 3, Lucknow has allowed the aforesaid application filed by opposite party no. 1 by the impugned judgment and order dated 21.05.2022 wherein as many as 12 issues were framed, including the issue as to whether opposite party no. 1 is the owner and in possession of the property in dispute. The parties had filed only documentary evidence in support of their respective claims. The Court held that on the strength of the sale deed dated 14.03.2012 executed by Shyam Lal, the opposite party no. 1 is the owner of the property in question and, accordingly, the Court set aside the judgment and decree dated 12.04.2013 passed in S.C.C. Suit No. 72 of 2010.
9. The learned counsel for the revision-petitioner has submitted that a Judge Small Cause Court has no jurisdiction to decide the question of title and when such questions cannot be decided by the Small Cause Court in a Suit, those questions cannot be decided in execution proceedings also. In deciding the question of title and returning a finding that the opposite party no. 1 is the owner of the premises in question, the trial court has acted without jurisdiction. The learned counsel for the petitioner has relied upon a decision rendered by a Co-ordinate Bench of this Court in Mohd. Hamid Vs. Mohd. Moin: AIR Online 2018 Alld 2663 (Neutral Citation No. - 2018:AHC:104118), in which the case of the revisionists in their objection under Order 21 Rule 97 C.P.C., was that they had acquired title to the house on the basis of oral Hiba made by their father and father-in-law on 13.10.2002 whereas the opposite party claimed title through a registered sale deed in his favour executed by the father and father-in-law of the revisionist. In this factual background, a coordinate Bench of this Court held that: -
"It is settled law that any dispute of title in proceedings for arrears of rent and eviction is beyond the scope of the proceedings. Now a dispute of title is being raised through the objection under Order 21 Rule 97 C.P.C. at the execution stage.
10. In my considered opinion, a question, which was beyond the scope of the proceedings, the decree whereof is sought to be executed would also be beyond the scope of the execution proceedings because the dispute of title could not have been decided by the SCC Court itself. "
10. The jurisdiction of Small Cause Courts is provided in Chapter III of the Provincial Small Cause Courts Act, 1887 (which will hereinafter be referred to as 'the Act of 1887'). Section 15 of the Act of 1887, as it applies to the State of Uttar Pradesh, provides as follows: -
"15. Cognizance of suits by Courts of Small Cause.--
(1) A Court of Small Cause shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Cause.
(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a Civil nature of which the value does not exceed twenty five thousand rupees shall be cognizable by a court of Small Cause.
Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease, or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use and occupation thereof after such determination of lease, the reference in this sub-section to one lakh rupees shall be constructed as a reference to five thousand rupees.
Explanation.--For the purposes of this sub-section, the expression "building has the same meaning as in Article (4) in the Second Schedule.
(3) Subject as aforesaid, the State Government may, by order in writing direct that all suits of a civil nature of which the value does not exceed three thousand rupees shall be cognizable by a court of Small Cause mentioned in the order."
11. The suits excepted from the cognizance of a Court of Small Cause are mentioned in the Second Schedule appended to the Act of 1887 and Article (4) of the said Schedule, as it applies to the State of Uttar Pradesh, is as follows: -
"(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not include a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.
Explanation.--For the purposes of this Article, the expression 'building' means a residential or non-residential roofed structure, and includes any land (including any garden), garages and out-houses, appurtenant to such building and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof."
12. Therefore, Small Cause Courts in the State of Uttar Pradesh have jurisdiction to entertain a suit by a lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.
13. Section 23 of the Provincial Small Cause Courts Act, 1887 provides that: -
"23. Return of plaints in suits involving questions of title.--(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Cause depend upon the proof or disproof of a title to immovable property or other title which such a court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title.
(2)***"
14. In Budhu Mal v. Mahabir Prasad: (1988) 4 SCC 194, the Hon'ble Supreme Court held that: -
"10. It is true that Section 23 does not make it obligatory on the Court of Small Cause to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Cause in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title. In case the plea set up by the appellants that by the deed dated December 8, 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt Sulochna Devi and that the said deed could not be unilaterally cancelled, is accepted, it is likely not only to affect the title of Mahabir Prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant, between Mahabir Prasad and the appellants which could not be revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated December 8, 1966. In that event it may not be possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. If the suits cannot be construed to be one between landlord and tenant they would not be cognizable by a Court of Small Cause and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate court so that none of the parties was prejudiced."
(Emphasis added)
15. When the suit filed by the revision-petitioner against the alleged tenant Santosh Shukla already stands decreed and the opposite party claims to have acquired ownership of the property in dispute through a sale-deed executed by its previous owner, the adjudication of the claim of the opposite party becomes incidental to adjudication of the plaintiff's claim for a decree for ejectment and its execution, which question can be decided by the Small Cause Court. Therefore, in my considered opinion, the Small Cause Court has not acted without jurisdiction in deciding this incidental question as per the law laid down by the Hon'ble Supreme Court in Budhu Mal (Supra).
16. In Mohd. Hamid (Supra), the case of the revisionists in their objection under Order XXI Rule 97 C.P.C. was that they had acquired title to the house on the basis of oral Hiba made by their father and father-in-law on 13.10.2002 whereas the opposite party claimed title through a registered sale-deed in his favour executed by the father and father-in-law of the revisionist. In the present case, the tenant - defendant did not claim title in himself, but it is his wife, who claimed a title independent to that of her husband, stating that she has acquired ownership of the house through a registered sale-deed executed by the previous owner of the property, whereas the landlord is claiming title on the basis of a will. There is no averment regarding the will being registered. There is a presumption regarding a correctness of the endorsements made on a registered sale deed but a will would stand proved by the statements of its attesting witnesses only. The facts of the present case are different from the facts of Mohd. Hamid (Supra) and, therefore, the ratio of law laid down in Mohd. Hamid (Supra) will not apply to the facts of the present case.
17. The learned counsel for the revision-petitioner has next submitted that the opposite party no. 1 was not a party to the Suit or the execution proceedings. Therefore, she had no locus to file any application under Order XXI Rules 97, 98, 99 and 101 and the relief sought by opposite party no. 1 through her application was also beyond the scope of the aforesaid Rules.
18. Rules 97, 98, 99 and 101 C.P.C. provide as follows: -
"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.
98. Orders after adjudication.-- (1) Upon the determination of the questions referred to in Rule 101, the court shall, in accordance with such determination and subject to the provisions of sub-rule (2);--
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99. Dispossession by decree-holder or purchaser.--(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
* * *
101. Question to be determined.-- 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 shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
19. The scope of Order XXI Rule 97 C.P.C. was explained by the Hon'ble Supreme Court in Noorduddin v. K. L. Anand (Dr): (1995) 1 SCC 242, in the following words: -
"8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like (sic) in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution.
10. The question is whether the executing court was right in dismissing the application on the ground that the dispute was adjudicated in RFA No. 305 of 1986 or as held by the High Court that the dispute was decided in the writ proceedings referred to earlier. The execution court is enjoined to adjudicate the claim or the objection or the claim to resistance. As seen, Rule 97 enables such a person to make an application which must be independent of the judgment-debtor or a person having derivate right from the judgment-debtor. The applicant in his own right must be in possession of the property. Admittedly, neither the appellant nor his father was a party to the suit or appeal. Therefore, the decree per force does not bind him. In the writ proceedings, though Nanu was impleaded as 5th respondent, no relief was claimed against him nor a finding adverse to him has been recorded. Thereby, there is no adverse finding recorded either in the suit or in the writ proceedings against the appellant or his father. Under these circumstances, when the appellant has been claiming right, title and interest in Khasra No. 179 from which he is now sought to be dispossessed in execution of the decree by the respondent in respect of Khasra Sakni Nos. 13 and 14, the executing court necessarily has to go into the question whether the property in Khasra No. 179 is part of Khasra Sakni Nos. 13 and 14 and if so, whether the respondent while executing the decree trenched upon his property and sought to dispossess him. The appellant's possession, pending adjudication, needs to be protected by interim orders. Unfortunately, the courts below had not adverted to these crucial aspects of the matter. When the appellant claimed independent right, title and interest and resisted the execution, the decree-holder or the appellant should make an application under Rule 97(1) and the court, in that event, is enjoined to adjudicate the claim and record a finding, allowing or rejecting the claim. It should be remembered that Parliament intended to shorten the litigation and to give effect to it, a simplified procedure was devised for adjudication. On the basis of the fact situation and the nature of the controversy, the claim has to be adjudicated expeditiously in a period not exceeding six months and preferably on day to day basis by putting an end to the tendentious conduct of prolonging the proceedings by suitable orders."
(Emphasis added)
20. Therefore, when the opposite party no. 1 claimed that the property in question had been purchased by her from its previous owner through a registered sale-deed, she had locus standi to claim that she had the right to resist her ejectment through execution proceedings instituted for execution of a decree which was passed in a suit in which she was not a party. Executing Court has rightly gone into the question in exercise of jurisdiction conferred by Order XXI Rule 97 C.P.C. The order passed by the executing Court cannot be said to be without jurisdiction.
21. The learned counsel for the petitioner has lastly submitted that the trial court has decided the intricate question of title merely after looking into the documentary evidence and without giving any opportunity to the parties to adduce any oral evidence to prove their case whereas there was nothing on record to prove the title of Shyam Lal from whom the opposite party no. 1 claims to derived title in respect of the property in question and, therefore, the title of the opposite party no. 1 was not established.
22. In Nirmal Jeet Singh Hoon v. Irtiza Hussain, (2010) 14 SCC 564, the Hon'ble Supreme Court explained the scope and effect of Section 23 of the Act of 1887 by relying upon the precedent in the case of Budhu Mal (Supra) and reiterated that "the finding on the issue of title recorded by the Small Cause Court does not operate as res judicata and ultimately the issue of title has to be adjudicated upon by the competent civil court."
23. When we reconcile the ratio of law laid down in Noorduddin and Nirmal Jeet Singh Hoon (Supra), the correct position of law which emerges is that the Small Cause Courts has limited jurisdiction to go into the question of title incidentally for deciding the claim of the landlord for a decree of ejectment and execution thereof. However, the Small Cause Courts decide the cases in a summary manner and the finding returned by a Small Cause Court regarding title of the rival parties will not operate as res judicata in a subsequent suit filed by the landlord in regular Civil Court claiming a decree on the basis of his title.
24. Therefore, the finding returned by the executing Court in proceedings for execution of a decree of a Small Cause Court will not affect the revision-petitioner's right to file a suit for recovery of possession of the property after establishing his right thereto on the basis of his claim to title of the property, which claim shall be decided by the Civil Court after adjudicating the rival claims to title of the property and the findings returned by the Small Cause Court in the impugned order will not operate as res judicata in that suit.
25. In view of the foregoing discussion, this Court is of the considered view that there is no illegality in the judgment and an order dated 21.05.2022 passed by the learned Additional District Judge/Special Judge, P.C. Act, Court no. 3, Lucknow in Miscellaneous Case No. 39-C of 2013 warranting any interference by this Court in exercise of its revisional jurisdiction conferred by Section 25 of the Act of 1887. The revision lacks merits and it is dismissed, subject to the observations made in this judgment.
(Subhash Vidyarthi J.) Order Date: 19.09.2024 kkv/