Senior Superintendent Of Police vs Smt. Shanti Devi & Another on 14 June, 2019

[Cites 44, Cited by 0]

Uttarakhand High Court

Senior Superintendent Of Police vs Smt. Shanti Devi & Another on 14 June, 2019

Equivalent citations: AIRONLINE 2019 UTR 193, 2019 AIR CC 2460 (UTR), (2019) 2 CURCC 382, (2019) 2 RENCR 410, (2019) 3 UC 1743

Bench: Manoj K. Tiwari

                                     Judgment Reserved on 14.05.2019
                                     Judgment Delivered on 14.06.2019


  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                       Civil Revision No. 32 of 2015

Senior Superintendent of Police
72, Rajpur Road, Dehradun, Uttarakhand.                           .....Revisionist

                                Versus

Smt. Shanti Devi & another.                                  .......Respondents


Mr. Tushar Mehta, learned Solicitor General, Mr. Mukesh Giri, Special Counsel for the
State of Uttarakhand, Mr. Paresh Tripathi, Chief Standing Counsel and Mr. I.P. Kohli,
Standing Counsel for the State of Uttarakhand/revisionist.
Mr. Piyush Garg, Advocate for the respondent.




                                Dated: June 14, 2019

Hon'ble Manoj K. Tiwari, J.

This Civil Revision under Section 25 of the Provincial Small Cause Courts Act, 1887 has been filed by Senior Superintendent of Police, Dehradun against the judgment & order dated 20.09.2014 passed by Executing Court, whereby his objection filed under Section 47 C.P.C. (registered as Misc. Case No. 2 of 2010) was rejected.

2. Respondents filed a suit for eviction, recovery of arrears of rent & mesne profits before Judge, Small Causes Court, Dehradun, which was registered as SCC Suit No. 24 of 2001. In the plaint, it was asserted that they are owner/landlord of the property bearing no. 72, Rajpur Road, Dehradun, which was let out for office- cum-residence of Senior Superintendent of Police, Dehradun on a month to month tenancy. It was further pleaded that rent of the property in question was 2 subsequently enhanced to ` 86,232/- w.e.f. 01.09.1993 on plaintiff's application under Section 21 (8) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "U.P. Act No. 13 of 1972") by Additional District Judge, Dehradun vide judgment and order dated 18.05.1999. It was further stated that defendants have not paid rent of said property w.e.f. 01.09.1993 and further that vide notice dated 13.07.2001 under Section 106, Transfer of Property Act read with Section 80 C.P.C., the tenancy was terminated and arrears of rent was also demanded; but, neither rent has been paid nor vacant possession of the said property has been delivered to the plaintiffs. On these pleadings, plaintiffs sought a decree for recovery of ` 82,15,788/- as arrears of rent; besides, decree for eviction & mesne profits.

3. Upon service of summons, defendants entered appearance before learned Court, however, due to failure on their part to file Written Statement, their opportunity was closed vide order dated 22.04.2002. By a subsequent order dated 03.05.2002, defence of the defendants was struck off for non compliance of Order 15 Rule 5 C.P.C. Defendants moved an application seeking recall of the order dated 22.04.2002, which was rejected on 31.05.2002. Another application by the defendants seeking recall of the order dated 03.05.2002 was rejected by learned Small Causes Court vide order dated 30.07.2002. Defendants filed Civil Revision No. 55 of 2002 against these orders, which was dismissed as infructuous by a Co-ordinate Bench of this Court on 22.10.2002, as in the meantime, suit itself was decided.

4. Learned Small Cause Court decreed the suit ex-parte vide judgment & order dated 24.08.2002 and directed the defendants to pay ` 82,15,788/- as arrears of rent between 01.09.1993 to 15.09.2001. Defendants were further directed to vacate the premises in question and handover peaceful possession thereof to the plaintiffs within one month with a further direction to pay mesne profits @ ` 86,232/- per month w.e.f. 16.09.2001 till possession of the property in question is handed over to the plaintiffs. Defendants challenged the ex-parte judgment & decree dated 24.08.2002 by filing Civil Revision No. 62 of 2002, which was dismissed by a Co-ordinate Bench of this Court vide judgment dated 11.08.2008. The defendants sought review of the judgment dated 11.08.2008 rendered in Civil Revision No. 62 of 2002, and their review application was rejected vide order dated 04.01.2011.

5. Plaintiffs (respondents herein) filed Execution Application No. 01 of 2008 seeking execution of monetary part of the decree passed in SCC Suit No. 24 of 2001. The Judgment Debtors paid the entire decreetal amount accrued till then and, accordingly, the Execution Application was consigned to record.

6. Thereafter, in the year 2010, plaintiffs/decree holders filed Execution Application No. 01 of 2010 with the prayer that they be put back in possession over the property in question and, for that purpose, they prayed for issuance of a Writ of Possession in respect of the property in suit as detailed in the schedule given in the foot of the Execution Application. Senior Superintendent of Police, Dehradun and State of Uttarakhand filed their 4 separate objections before the Executing Court under Section 47 C.P.C. The objection filed by the State Government was numbered as SCC Misc. Case No. 36 of 2011; while, objection filed by Senior Superintendent of Police, Dehradun was numbered as SCC Misc. Case No. 2 of 2010. Learned District Judge, Dehradun dismissed both the objections by a common judgment and order dated 20.09.2014. Senior Superintendent of Police, Dehradun alone has challenged the said order while Government of Uttarakhand has not challenged the order passed by Executing Court.

7. Heard learned counsel for the parties and perused the record.

8. It is not in dispute that the property in question was let out by plaintiff no. 1 (Smt. Shanti Devi W/o late Hari Singh) to State of Uttar Pradesh w.e.f. 01.04.1950 for a period of 5 years through a lease deed dated 17.03.1954. The demised premises was to be used as residence or office or both of Superintendent of Police, Dehradun, on monthly rent of ` 162/7/-. Subsequently, on an application moved by the respondents under Section 21 (8) of U.P. Act No. 13 of 1972, the rent of the property in question was enhanced from ` 162/7/- to ` 833.30/- w.e.f. 01.10.1985. Thereafter, another application for enhancing the rent under Section 21 (8) of U.P. Act No. 13 of 1972 was filed by the respondent no. 1 and the Additional District Magistrate, Dehradun passed an order on 01.09.1993, enhancing the rent from ` 833.30/- to ` 1,600/- w.e.f. 01.09.1993. On an Appeal filed by Smt. Shanti Devi under Section 22 of U.P. Act No. 13 of 1972, learned IIIrd Additional District Judge, 5 Dehradun enhanced the rent to ` 86,232/- per month vide order dated 18.05.1999. The said order passed by IIIrd Additional District Judge, Dehradun was challenged by the defendant (revisionist herein) by filing Writ Petition, which was dismissed by this Court vide judgment dated 11.06.2001. S.L.P. filed against the said judgment too was dismissed by Hon'ble Supreme Court.

9. A perusal of the impugned judgment reveals that learned Executing Court/District Judge has considered the objections raised by the judgment debtors against executability of the decree, in great detail. The judgment debtors had contended that the property in question is part of Khasra No. 16 Ka, Khewat No. 2, to which provisions of U.P. Tenancy Act are applicable, therefore, a Civil Court/ Small Cause Court was not competent to entertain the suit and only Revenue Court had jurisdiction in the matter. It was further contended that one Mr. Vijay Singh S/o Late Sher Singh has claimed title over a part of the property in question by filing Original Suit No. 574 of 2004, which is pending in the Court of Additional Civil Judge IV (Junior Division), Dehradun. It was further contended that one Dayanand Shiksha Sansthan has also claimed title over the property in question by filing a Suit for declaration before the Court of Civil Judge (Senior Division), Dehradun, which is registered as Original Suit No. 44 of 2010. It was further contended that the property in question belongs to the State, as it was part of Khewat No. 2, which has now been vested in the State and the decree in SCC Suit No. 24 of 2001 was obtained by fraud. It was further contended that decree holders have sold a part of the property in question to M/s A.S.G. 6 Pharma Pvt. Ltd. Vasant Kunj, New Delhi vide sale deed dated 14.05.2004. It was further contended that the State Government had issued a notification under Land Acquisition Act, 1894 for acquiring part of the property in question, which was challenged by the decree holders by filing WPMB No. 913 of 2003 and this Court, while recording the statement made by the State counsel that status quo shall be maintained regarding the property, observed that decree cannot be executed so long as writ petition is pending.

10. Learned Executing Court, after considering rival contentions of the parties held that the property in question was let out to the State Government in the year 1954 and lease deed was signed by Smt. Shanti Devi (plaintiff no.1), as Lessor and Secretary, Home Department of Uttar Pradesh, as Lessee, therefore, the defendants are now estopped from contending otherwise. It was further held that the judgment debtors cannot question the title of the landlady without handing over possession of the tenanted premises in view of Section 116 of the Evidence Act. Regarding the contention that the Civil/SCC Court has no jurisdiction and only Revenue Court has jurisdiction in respect of agricultural land, learned Executing Court held that boundaries of the property given in the lease deed executed in the year 1954, show that the property in question was abutting Rajpur Road and was bounded on three sides by bungalows/residential houses. It was further held that the lease deed was executed in respect of a building, which was to be used as office-cum-residence of Superintendent of Police, Dehradun, therefore, the leased property cannot be treated as agricultural land.

It was further held that the property in question is situate in urban area and has been recorded in the Municipal records, therefore, merely because building is not constructed over entire land and part thereof has been left vacant, will not change nature of the property to agricultural land, so as to oust the jurisdiction of a Civil/Small Cause Court. Regarding the plea of fraud raised by the judgment debtors in their objections, learned Executing Court held that non-disclosure of the factum of sale by the decree holders of part of their share in the property is not relevant, inasmuch as, in a SCC Suit for eviction, the relationship of landlord and tenant alone has to be seen and the judgment debtors have admitted their status as tenant by paying rent and mesne profits pursuant to the eviction decree, more so when the relationship of landlord and tenant was never disputed by the judgment debtors until filing of objection under Section 47 C.P.C. Executing Court further held that, in view of the provision contained in Order 6 Rule 4 C.P.C., particulars regarding fraud have to be pleaded and, in the absence of particulars, such plea cannot be entertained.

11. Learned Executing Court placed reliance upon law laid down by Hon'ble Supreme Court in the case of Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and others, reported in (1970) 1 SCC 670, where it has been held that Executing Court has no jurisdiction to entertain objection as to validity of the decree on the ground of absence of jurisdiction, unless the objection as to the jurisdiction of the Court to pass the decree appears on the face of the record and further that Executing Court cannot go behind the decree by looking 8 at new documents. Learned District Judge further held that the name of the forefathers of the decree holders are recorded in the revenue records since long and long standing revenue entries cannot be disturbed in summary proceedings under U.P. Land Revenue Act, in view of settled legal position. The objection raised by Dayanand Shiksha Sansthan and Mr. Vijay Singh was repelled by the Executing Court by holding that merely because title of the decree holder is under challenge in some other proceeding cannot be a valid objection against execution of a decree and scope of power of Executing Court is very narrow and exercise of powers is microscopic. The contention raised by the judgment debtors that the decree sought to be executed was not passed on merit; but, was an ex-parte decree therefore they are free to challenge the title of the decree holders, did not find favour with the Executing Court which held that the ex parte decree was passed in view of persistent default made by the defendant/ judgment debtors. It was therefore held that the judgment debtors had every opportunity to contest the eviction suit on merits and they cannot be permitted to defeat the decree by questioning title of the decree holders.

12. Learned Executing Court has given convincing reasons for not accepting the contentions raised by judgment debtors regarding vesting of land in the State Government by invoking principle of 'escheat'. It was observed that the revenue officials had no jurisdiction to demarcate or survey such property, which is not agricultural land but is a building situate in an urban area, more so when these very officers had expressed their inability to survey the adjoining land on the request 9 of Dayanand Shiksha Sansthan. It was further observed that the revenue authorities conducted survey in cursory manner without finding out fixed points, by misusing their powers with a view to defeat execution of the decree passed against the State Government.

13. Regarding the contention of the judgment debtors that the property comprised in Khewat No. 2 stands vested in the State, as Sharif Beig and Ajmal Beig, to whom it belonged, had shifted to Pakistan, learned Executing Court held that if owner of the property had shifted to Pakistan then the property was required to be put under control of Custodian under Administration of Evacuee Property Act, 1950, which was never done, therefore, the District Magistrate cannot pass any order vesting the said property in the State Government.

14. Regarding the plea of 'escheat', learned Executing Court held that name of ancestors of the decree holders were entered in the municipal assessment record, hence, it cannot be said that the property in question is without any owner. Relying upon a judgment rendered by Hon'ble Allahabad High Court in State and another Vs. Jagannath Singhal, reported in AIR 1962 Allahabad 153, it was held that even in case of property acquired by money earned through a criminal act, State cannot forfeit the property at its own, the matter can finally be decided only by a Civil Court. It was further held that the order passed by the District Magistrate cannot defeat a decree of a Civil Court and District Magistrate cannot become a judge in his own cause.

15. Mr. Tushar Mehta, learned Solicitor General of India appearing for the revisionist submits that the Small Cause Court had no jurisdiction to take cognizance of the suit filed by the respondents and the decree passed therein is nullity. He further submits that the building in question is situate in an urban area and is governed by provisions of U.P. Act No. 13 of 1972, therefore, a Small Cause Suit was not maintainable. He further submits that, as per Section 15 of Provincial Small Cause Courts Act, the maximum pecuniary jurisdiction of Small Cause Court is ` 25,000/- as such, the District Judge, who passed the decree in question, had no pecuniary jurisdiction in the matter.

16. The submission made on behalf of the revisionist is without any substance. The rent of the property was enhanced to ` 86,232/- per month vide order dated 18.05.1999 passed by learned IIIrd Additional District Judge, Dehradun in an Appeal against the order of Additional District Magistrate passed under Section 21 (8) of U.P. Act No. 13 of 1972. Section 2 (1) of U.P. Act No. 13 of 1972 deals with exemptions from operation of Act and clause (g) thereof provides that provisions contained in U.P. Act No. 13 of 1972 shall not apply to "any building, whose monthly rent exceeds two thousand rupees". Since the rent of the property in question was more than ` 2,000/- per month, therefore, U.P. Act No. 13 of 1972 was not applicable.

17. Small Cause Courts are established under the Provincial Small Cause Courts Act, 1887. Section 15 deals with cognizance of Suits by Courts of Small Causes and Sub-section (1) of the said Act provides that Court of 11 Small Causes shall not take cognizance of the suits specified in the Second Schedule. Sub Section 2 of Section 15 was amended by Uttar Pradesh Act No. 17 of 1991, which reads as under:

"(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 five thousand rupees shall be cognizable by a Court of Small Causes:

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 use and occupation thereof after the determination of the lease, the reference in this sub-section to five thousand rupees shall be construed as a reference to twenty-five thousand rupees.

Explanation.- For the purposes of this sub- section, the expression 'building' has the same meaning as in Art. (4) in the Second Schedule."

18. Second Schedule to the Provincial Small Cause Courts Act enumerates the Suits which are excepted from cognizance of a Court of Small Causes. Article (4) of the Second Schedule was amended vide Uttar Pradesh Act No. 37 of 1972, which is extracted below:

"(4) a suit for the possession of immoveable property or for the recovery of an interest in such property, but not including 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, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof."

19. From a conjoint reading of Section 15(2) and Article 4 of the Second Schedule, as applicable in State of U.P. & Uttarakhand, it is apparent that 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, shall be cognizable by a Court of small causes.

20. Under Section 25 (1) of Bengal, Agra and Assam Civil Courts Act, 1887 High Court is vested with the power to confer upon any Civil Judge or Munisff, the jurisdiction of Judge of Court of Small Causes under the Provincial Small Causes Courts Act 1887, upto the value of ` 5,000/-. In respect of the suit by a Lessor against a Lessee, such valuation of ` 5,000/- has been enhanced to ` 25,000/-. Further, by virtue of Section 25 (2) of the said Act, High Court can confer upon any District Judge or Additional District Judge, the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act for the trial of all suits, (irrespective of their value) by the Lessor for the eviction of a Lessee from a building after the determination of his lease, or for arrears of rent and mesne profits. Section 25 (4) of the said Act provides further that where the jurisdiction of a Judge of a Small Causes is conferred upon a District 13 Judge or Additional District Judge, than notwithstanding anything contained in Section 15 of Provincial Small Causes Courts Act 1887, all suits referred to in Sub Section (2) shall be cognizable by Court of Small Causes. Section 25 of Bengal, Agra and Assam Civil Courts Act is extracted below for ready reference:

"25. Power to invest Civil Judges and Munsifs with Small Cause Court jurisdiction-[(1) The High Court may be notification in the Official Gazette, confer within such local limits as it thinks fit, upon any Civil Judge or Munsif, the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Court Act, 1887 or the trial of suits cognizable by such Courts, up to such value not exceeding five thousand rupees as it thinks fit, and may withdraw any jurisdiction so conferred:

Provided that in relation to suits of the nature referred to in the proviso to sub-section (2) of Section 15 of the said Act, the reference in this sub-section to five thousand rupees shall be construed as reference to twenty five thousand rupees.

(2) The [High Court] may by notification in the Official Gazette, confer upon any District Judge or any Additional District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of all suits (irrespective of their value), by the lessor for the eviction of a lessee from a building after the determination of his lease, or for the 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 and may withdraw any jurisdiction so conferred.

Explanation-For the purposes of the sub- section, the expression 'building' has the same 14 meaning as in Art. (4) in the Second Schedule to the said act.

(3) [ * * * *] (4) Where the jurisdiction of a Judge of a Court of Small Causes is conferred upon any District Judge or Additional District Judge by notification under this section, then notwithstanding anything contained in Sec.15 of the Provincial Small Cause Courts Act, 1887, all suits referred to in sub-section (2) shall be cognizable by Court of Small Causes."

21. Before State Reorganization, in erstwhile State of Uttar Pradesh, notifications were issued conferring jurisdiction of Small Cause Courts upon Munsiff in each local area for a valuation upto ` 5,000/-, upon Civil Judge (Senior Division) for a valuation above ` 5,000/- upto ` 25,000/- and the District Judge or Additional District Judge, irrespective of valuation of the suit. Those notifications are applicable in State of Uttarakhand also and District Judge can entertain a Small Cause suit irrespective of its valuation. Thus, learned District Judge was having jurisdiction to take cognizance of the Small Cause Suit filed by the respondents against the revisionist.

22. Even otherwise also, if provisions of U.P. Act No. 13 of 1972 were applicable to the building, then also the eviction Suit filed under Section 20(2)(a) would be cognizable by a Small Cause Court. Default in payment of rent for more than 4 months, is a ground for filing eviction Suit under Section 20 (2) (a) of U.P. Act No. 13 of 1972. Such suit would be cognizable by a Judge Small Cause in view of Section 15 of Provincial Small Cause Courts Act, 1887 read with Section 25 of Bengal, Agra 15 and Assam Civil Courts Act, 1887. Under U.P. Act No. 13 of 1972, a landlord can recover possession of a building from the tenant either under Section 20 (2) or under Section 21 (1) of the Act. Section 21 (1) provides for release of building on the ground that (a) building is bonafide required by the landlord or (b) when the building is in a dilapidated condition and is required for purposes of demolition and new construction. Forum provided in these two provisions is different; under Section 21 (1) an application has to be filed before the Prescribed Authority while under Section 20 (2), a suit for eviction has to be filed, which can be filed only before a competent Court of law.

23. Mr. Tushar Mehta, learned counsel for the revisionist then submits that learned trial Court committed procedural impropriety while directing to proceed ex-parte in the Small Cause Suit vide order dated 22.04.2002, when trial Court on 18.02.2002 had allowed defendants' application seeking two months' time for filing Written Statement and, thereafter, on 04.04.2002 again 15 days further time was granted to them for filing Written Statement. Thus, according to him, before expiry of time granted for filing written statement, trial Court could not have passed the order as was passed on 22.04.2002. He further submits that learned trial Court was not justified in striking off the defence of the defendants by a subsequent order dated 03.05.2002.

24. A careful perusal of the photocopy of the order sheet of learned trial Court, which was produced in Court by learned counsel for the revisionist, reveals that 16 on 18.02.2002, defendants counsel had moved an application seeking two months time for filing Written Statement, which was opposed by the plaintiffs. Since the order sheet is handwritten and is difficult to read, therefore, the expression "opposed" was misread as "approved". The expression used in the order dated 18.02.2002 was "opposed" and not "approved" is proved by the fact that defendants filed one application on 04.04.2002 seeking one month's further time to file written statement. If two months' time was granted to the defendants for filing Written Statement on 18.02.2002, then there was no occasion for the defendants to seek a month's further time on 04.04.2002. Learned trial Court granted only 15 days' time for filing Written Statement to the defendants vide order dated 04.04.2002 and it was further clarified that this would be the last opportunity for the purpose. On 22.04.2002, learned District Judge was not available at Dehradun, however, the In-Charge District Judge exercises 'any of the powers of the District Judge' in view of Section 10 (2) of Bengal, Agra and Assam Civil Courts Act, 1887.

25. Order sheet of the trial Court indicates that vide order dated 03.05.2002, defence of the defendants (revisionist herein) was struck off for non compliance of mandatory provision of Order 15 Rule 5 C.P.C. [Section 20(4) of U.P. Act No. 13 of 1972 also contains provision analogous to Order 15 Rule 5 C.P.C.]. Defendants' application seeking recall of said order was dismissed on 30.07.2002. Revision filed against the said order was dismissed by this Court. Thus, this Court does not find any substance in the submission made on behalf of the 17 revisionist that learned trial Court was not justified in proceeding ex parte against the revisionist.

26. Learned counsel for the revisionist submits that the property in question is divided into two Khewats i.e. Khewat nos. 1 & 2 out of which Khewat no. 2 belonged to one Karim Baig and his family members, since they are untraceable therefore a joint report was prepared, based on which an order dated 19.02.2014 was passed by Collector, Dehradun, whereby the property in question was vested with the State Government by invoking principle of 'escheat'.

27. Per contra, learned counsel appearing for the respondents submits that late Lala Balbir Singh, predecessor in interest of the respondent, purchased 77 Bigha and 10 Biswa land in Khewat No. 1 vide registered sale deeds dated 11.04.1912, 06.05.1912 & 18.06.1914 respectively and since the property was within municipal limits, it was granted different municipal numbers. The property in question was part of the property purchased by Lala Balbir Singh and it was allotted Municipal No. 72, Rajpur Road, Dehradun. He further submits that Property No. 72, Rajpur Road, Dehradun alongwith some other properties came to the share of late Hari Singh (husband of Smt. Shanti Devi and father of Ranjit Singh). After death of Hari Singh, his share was inherited by Shanti Devi and Ranjit Singh. He further submits that a registered lease deed was executed between Smt. Shanti Devi and Government of U.P. for letting out the property in question for residence-cum- office of Superintendent of Police, Dehradun. He further submits that since the tenants had encroached upon 18 respondent's adjoining property, which was not part of demised premises, therefore, a Suit No. 276 of 1965 was filed by the respondent and the tenants in their written statement admitted ownership/ landlordship of the respondent. The suit was dismissed by the trial Court, but was allowed by the Appellate Court vide judgment and decree dated 08.02.1972 and possession of the encroached portion of the property was handed over to the respondents/landlord.

28. Learned counsel for the respondents further submits that two applications filed by the respondents for enhancement of rent under Section 21(8) of U.P. Act No. 13 of 1972 were allowed. He further submits that the revisionist never disputed status of the respondents as landlord of the property in any proceedings until now, including the Civil Revisions filed before this Court challenging various orders of learned Small Cause Court; therefore, the revisionist cannot dispute title of the respondents in execution proceedings.

29. I find substance in the submission made on behalf of the respondents. Revisionist was put in possession of the property as lessee by Smt. Shanti Devi way back in the year 1950. A number of proceedings were initiated by Smt. Shanti Devi against the tenant and in none of those proceedings, title of Smt. Shanti Devi was denied by the tenant( revisionist herein). However in Execution Case No. 01 of 2010, the title of Smt. Shanti Devi was for the first time denied. Therefore, learned Executing Court rightly held that the judgment debtor cannot dispute her title without surrendering possession of the tenanted premises to the landlord.

30. The principle of estoppel arising from contract of tenancy with reference to Section 116 of Evidence Act has been considered and discussed in the case of Jaspal Kaur Cheema Vs. Industrial Trade Links and another reported in (2017) 8 SCC 592. Para 11 of the said judgment is extracted below:

"11. The principle of estoppel arising from contract of tenancy is based upon the principle of law and justice that a tenant who could not have got possession but for a contract of tenancy admitting the right of the landlord, should not be allowed to put his landlord in some inequitable situation taking undue advantage of the position that he got and any probable defect in the title of his landlord. This Court in Bansraj Laltaprasad Mishra v. Stanley Parker Jones has enumerated the policy underlying Section 116 as follows: (SCC p. 96, paras 13-15) "13. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.

14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the 20 landlord's title that the principle of estoppel is attracted.

15. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time.""

31. Learned counsel for the revisionist then submits that the District Magistrate, Dehradun has vested the property in the State by invoking doctrine of 'escheat', therefore the decree has become inexecutable. Learned Executing Court has dealt with this contention and rightly held that the respondents were not party to the proceedings in which the property was ordered to be vested in the State. Even otherwise also, an order passed by District Magistrate in the year 2014 will not render a decree passed in the year 2002 inexecutable. Moreover, while executing a decree passed in a eviction suit by landlord against his tenant, the question of title is not germane. A decree can become inexecutable only by subsequent change in law, which is not the case here.

32. Learned counsel for the revisionist then submits that since Smt. Shanti Devi had executed four sale deeds in favour of different persons, therefore, she was not left with any share in the property in question.

33. Per contra, learned counsel appearing for the respondents submits that the submission made on behalf of the revisionist is erroneous and no sale deed alleged to have been executed by Smt. Shanti Devi has been brought on record. He further submits that the sale deed dated 28.04.1962 referred to by the revisionist was executed by some other person with similar name i.e., 21 Shanti Devi w/o Teerath Singh; while respondent no. 1 herein is Shanti Devi w/o Hari Singh. He further submits that the sale deeds dated 24.11.1971 and 26.03.1987 were in respect of other property and not in respect of Property No. 72, Rajpur Road, Dehradun. He further submits that sale deed dated 17.05.2004 was in respect of part of the property let out to the revisionist and in the sale deed, there was a recital that the property is under tenancy of the revisionist and possession thereof will be handed over to the vendee, once the same is vacated. He further submits that the purchaser of the property had filed an application before the Executing Court stating that the respondents have been authorized to get the decree executed, therefore, he submits that execution can be continued by the respondents in view of the provisions contained under Order 22 Rule 10 C.P.C. He further submits that the contention of the revisionist that the respondents are not left with any share in the property in question is absolutely incorrect.

34. I do not find any force in the submission made on behalf of the revisionist. It is settled position in law that an Executing Court cannot consider a new plea raised by the judgment debtor regarding lack of title of the landlord over the demised premises as held in (2003) 8 SCC 289. Moreover the revisionist never disputed title of the respondents in any proceedings earlier; therefore such contention cannot be raised for the first time before Executing Court.

35. Learned counsel for the revisionist then submits that Smt. Shanti Devi had let the tenants into 22 possession of the property and after her death her son Ranjit Singh is contesting the matter, therefore, Ranjit Singh is claiming a derivative title for the purpose of seeking execution of the decree, therefore tenant's estoppel under Section 116 Evidence Act will not be applicable to him; in other words, the tenant/ revisionist is not estopped from contending that title over the property is not of the plaintiff, but is of someone else, which question can be gone into by the Executing Court.

36. Hon'ble Supreme Court in the case of Apollo Zipper India Ltd. v. W. Newman & Co. Ltd. reported in (2018) 6 SCC 744 while considering a similar question has held as under:-

"40. It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the rent laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.

41. In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit

42. Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's 23 title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord.

43. It is equally well-settled law with regard to attornment that it does not create any new tenancy but once the factum of attornment is proved then by virtue of such attornment, the old tenancy continues."

37. In the present case, revisionist has attorned the respondents as landlord by paying rent, as enhanced from time to time under Section 21(8) of U.P. Act No. 13 of 1972. The respondents have also deposited mesne profits pursuant to the self same decree in Execution Case No. 01 of 2008 filed by the respondents. Thereafter, another Execution Case No. 01 of 2013 was filed by the respondents claiming mesne profits under the same decree and the objection of the revisionist under Section 47 C.P.C. was dismissed by learned Executing Court. By paying rent as well as mesne profits, revisionist has attorned Ranjit Singh after death of his mother Shanti Devi, thus, he cannot challenge the derivative title of Ranjit Singh.

38. Learned counsel for the revisionist then submits that decree sought to be executed is an ex parte decree, which was passed without hearing the revisionist. He further submits that execution of such ex parte decree will result in miscarriage of justice.

39. Hon'ble Supreme Court in the case of Vijay Singh Vs. Shanti Devi reported in (2017) 8 SCC 837 has held that an ex parte decree has the same force as a decree which is passed on contest and further that as 24 long as the ex-parte decree is not recalled or set aside, it is legal and binding upon the parties.

40. It is settled position in law that a Court executing a decree cannot go behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. Hon'ble Supreme Court in the case of Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman reported in (1970) 1 SCC 670 has held as under:-

"6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian 25 Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction.

8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.

9. The High Court was of the view that where there is lack of inherent jurisdiction in the Court which passed the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity. But, in our judgment, for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts on the decision of which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon an enquiry into those facts. In the view of the High Court since the land leased was at the date of the lease used for agricultural purposes and that it so appeared on investigation of the terms of the lease and other relevant evidence, it was open to the Court to hold that the decree was without jurisdiction and on that account a 26 nullity. The view taken by the High Court, in our judgment, cannot be sustained."

41. In the case of Brakewel Automotive Components (India) (P) Ltd. v. P.R. Selvam Alagappan reported in (2017) 5 SCC 371 Hon'ble Supreme Court has held that exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. Paragraph nos. 20, 21, 22 & 23 of the said judgment are extracted below:-

"20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well to render the decree unexecutable.

21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.

22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman in essence enunciated that only a decree which is a nullity can be the subject- matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:

"6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."

23. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view."

42. What is a void decree has been considered and discussed by Hon'ble Supreme Court in the case of Rafique Bibi v. Sayed Waliuddin reported in (2004) 1 SCC 287. Paragraph nos. 6, 7 & 8 of the said judgment are extracted below:-

"6. What is "void" has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail.

7. Two things must be clearly borne in mind. Firstly, "the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results."

(Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308.) Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. "The order of a superior court such as the High Court, must always be obeyed no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit."

8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any callateral attack or in incidental proceedings."

43. Similarly, in the case of Balvant N. Viswamitra v. Yadav Sadashiv Mule reported in (2004) 8 SCC 706 Hon'ble Supreme Court has held that a void decree can be challenged at any stage, even in execution 30 or collateral proceedings, whereas an erroneous or illegal decision, which is not void, cannot be objected to in execution or collateral proceedings. Paragraph no. 9 of the said judgment is extracted below:-

"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."

44. Hon'ble Supreme Court in the case of Devidayal Rolling Mills Vs. Prakash Chimanlal Parikh and Ors. Reported in (1993) 2 SCC 470 has held that question of title cannot be raised in an execution proceedings.

45. Similarly, in the case of Haryana Vidyut Prasaran Nigam Ltd. Vs. Gulshan Lal reported in (2009) 13 SCC 354 Hon'ble Supreme Court has held that executing Court cannot go behind the decree, it has to be established by the objector that the decree was ex facie nullity and for that purpose the Court is precluded from making an indepth scrutiny. Paragraph nos. 17, 18 & 19 of the said judgment are extracted below:-

"17. As indicated hereinbefore, for the purpose of allowing an objection filed on behalf of a judgment-debtor under Section 47 of the Code of Civil Procedure, it was incumbent on him to show that the decree was ex facie nullity. For the said purpose, the court is precluded from making an in-depth scrutiny as regards the entitlement of the plaintiff with reference to not only his claim made in the plaint but also the defence set up by the judgment-debtor. As the judgment of the trial court could not have been reopened, the correctness thereof could not have been put to question.

18. It is also well known that an executing court cannot go behind the decree. If on a fair interpretation of the judgment, order and decree passed by a court having appropriate jurisdiction in that behalf, the reliefs sought for by the plaintiff appear to have been granted, there is no reason as to why the executing court shall deprive him from obtaining the fruits of the decree.

19. In Deepa Bhargava v. Mahesh Bhargava4 this Court held as under:

"9. ... An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. A default clause contained in a compromise decree even otherwise would not be considered to be penal in nature so as to attract the provisions of Section 74 of the Contract Act."

46. Hon'ble Supreme Court in the case of Ravindra Kaur Vs. Ashok Kumar reported in (2003) 8 SCC 289 has held that factual issues, which were either settled or not agitated in original ejectment proceedings cannot be re-agitated in execution proceedings. It was further held that Courts "should be careful enough to see through such diabolical plans of the judgment 32 debtors to deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system." Paragraph nos. 20 to 22 of the said judgment are extracted below:-

"20. This opinion of the High Court, in our considered view, is wholly erroneous for more than one reason. The objection that the learned Judge referred to in the impugned order raised by the respondent herein was in regard to the correctness of the site plan. As noted earlier, this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted hereinabove. At the cost of repetition, we must restate that this question of identity of the property was never again raised in the appeal before the Appellate Authority, in the revision before the revisional authority, namely, the High Court or in the SLP before this Court. In such circumstances, we fail to understand how this very issue can be reagitated in the execution proceeding by the tenants. It is also to be noticed that the executing court has rightly observed that reopening of this issue would amount to asking that court to go behind the decree which is impermissible in law. We must note, this finding of the executing court is not even noticed by the High Court in the impugned order. The High Court also did not take into consideration the reasoning of the Coordinate Bench of the same High Court in the dismissal order made in CRP No. 5175 of 2002 on 29-10-2002 which while rejecting the similar contention of the respondents had specifically observed that the attempt of the tenants was with a view to delay their ejectment. In such a factual background, we think the impugned judgment is wholly erroneous having no legal or factual basis to sustain it. We also must notice that the High Court in the impugned order has made an observation which in effect, in our opinion, makes the execution proceedings 33 liable to be dismissed. The said observation is as follows:

"In the present case, it is proved on the record that the shop regarding which the decree-holder was seeking possession during execution proceedings was not the one regarding which the ejectment order had been passed by the Rent Controller. Neither the description had tallied nor the boundaries tallied."

21. This observation is contrary to the finding on Issue 7 in the original proceedings. That apart, this observation is so emphatic that by this the execution petition itself was liable to be dismissed making the eviction decree infructuous. It is not the normal practice of the superior court to give a conclusive finding in matters which it remands for further consideration because after a conclusive finding there is nothing to be decided by the court to which the matter is remanded.

22. All these facts apart, we notice that nowhere in the petition the respondent tenants claim to be in possession of any shop other than Shop No. 3 in regard to which they have suffered an eviction order. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. We have specifically asked the learned counsel appearing for the respondents that apart from Shop No. 3 belonging to the appellant, are the respondents in possession of any part of the property bearing No. EK 172/2 situated at Chowk Panjeer, Jalandhar. The learned counsel was not able to give any satisfactory reply to our question which would only mean that the respondents are not in possession of any other property other than Shop No. 3 leased out to them in the abovementioned property belonging to the appellant. That is also why they prayed for restoration of possession. Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction 34 by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."

47. Hon'ble Supreme Court in the case of Harpal Singh Vs. Ashok Kumar reported in (2018) 11 SCC 113 while considering the question whether judgment passed by Civil Court in respect of agricultural land is a nullity, has held as under:-

"6. The validity of a decree can be challenged before an executing court only on the ground of an inherent lack of jurisdiction which renders the decree a nullity. In Hira Lal Patni v. Kali Nath this Court held thus:

"4. ... The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. ..."

7. In Sunder Dass v. Ram Prakash this Court held that:

"3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be 35 set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan and Hira Lal Patni v. Kali Nath. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent."

8. In the present case, the finding of fact which was arrived at by the executing court in the course of its decision on the objection to execution is that the land had ceased to be agricultural land and was not being used for purposes contemplated under the Delhi Land Reforms Act, 1954. The High Court while affirming the view of the executing court made the following observations:

"7. ... But in the present case, the decree-holder had shown electricity bills pertaining to the same khasra number and the Court also considered that most rural lands in Delhi have become urbanised and private unauthorised colonies have mushroomed on agricultural lands. Therefore, in fact, the said land had lost its character of 36 agricultural land. Besides, the suit was filed under Section 6 of the Specific Relief Act for declaration and possession along with injunction and other consequential reliefs. The executing court found that the objector had not shown as to how the said suit was not maintainable. It relied upon the dicta of the Supreme Court in Hira Lal Patni v. Kali Nath, which held that:

'4. ... The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject- matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction.' "

48. The submission made by learned counsel for the revisionist that the Small Cause Court had no jurisdiction to entertain the eviction suit and such suit could have been filed only before Prescribed Authority under U.P. Act No. 13 of 1972, is unacceptable in view of the discussion made in foregoing paragraphs of this judgment (para nos. 16 to 22). Thus, the contention that the decree passed by learned Judge Small Cause Court is a nullity is unacceptable. In view of the amendment to the Provincial Small Cause Courts Act, 1887 made by State Legislature and also the scheme of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, it is the Small Cause Court, which 37 alone has jurisdiction to entertain eviction suits filed by a landlord of a building against his tenant. Even otherwise also, the objection that eviction suit was not maintainable before a Small Cause Court was not taken by the revisionist before trial Court, therefore, this plea cannot be raised before the Executing Court.

49. Thus, this Court does not find any good ground to interfere with the judgment given by learned Executing Court, while exercising power of revision under Section 25 of Provincial Small Cause Courts Act, 1887. Accordingly, the Civil Revision fails and is dismissed.

(Manoj K. Tiwari J.) 14.06.2019 Arpan

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