Document Fragment View

Matching Fragments

11. I have carefully considered the submissions made by the learned Sr. Counsel for the parties.

12. A perusal of the order passed by the Executing Court shows that the Executing Court was aware of all these facts as has been narrated above. It has been noticed that respondents No. 1 and 2 had been put in possession of the house on the basis of the agreement entered into between the four brothers on 17.4.1998. Admittedly, the peti-

tioner was not involved at all with the family arrangement of the four brothers. Therefore, no tenancy right could have been created in favour of respondents No. 1 and 2. The Executing Court has noticed that by virtue of the agreement dated 17.4.1998, the possession of the demised premises has been handed over to respondents No. 1 and 2 by respondent No. 3. However, there is no pleading to the effect that respondents No. 1 and 2 were ever the tenants of the petitioner. Respondent No. 3 has himself admitted in the Special Power of Attorney dated 4.4.1998 that he is a tenant of the demised premises. He has also admitted that he is running Victoria Tourist Lodge at these premises. Thus it is evident that respondents No. 1 and 2 are rank trespassers on the demised premises. After assessing the entire evidence, even the Executing Court has come to the conclusion that the nature of the possession of the objectors over H. No. 502 Sector 18-B, Chandigarh is not established. Since the petitioner was not a party to the agreement dated 17.4.1998, the respondents No. 1 and 2, Objectors could not become the tenants under the petitioner-decree-holder without his consent. It is held that tenancy is always created through a contract, although the contract may be oral or in writing. It has been held that since respondents No. 1 and 2 occupied the premises, without the consent of the petitioner and in connivance with respondent No. 3, they are nothing but trespassers. The Executing Court further notices that these respondents had also taken the plea of partnership which was mentioned earlier. There was no mention of partnership deed in the written statement or in the pleadings. After assessing the entire evidence, the Executing Court has held that the agreement dated 17.4.1998 is a sham transaction i.e. the adoption of strategy on the part of the Objectors to obstruct the execution proceedings. It has been further held that the ejectment order dated 25.7.1998 has been passed on the basis of the statement given by Rajesh Kumar, Special Power of Attorney of respondent No. 3. This Special Power of Attorney has been proved on the record. It was neither cancelled nor revoked by respondent No. 3 prior to 25.7.1998. Thus, the ejectment order has been passed on the basis of the admissions made by respondent No. 3. In my opinion, it has been rightly held that the Objecters are not tenants under the petitioner. They have no locus standi to challenge the consent decree dated 25.7.1998. It is a settled proposition of law that consent decree can be challenged only on the ground of fraud or misrepresentation. I am of the considered opinion that respondents have miserably failed to place on record any evidence to prove that the consent decree has been obtained by way of fraud of misrepresentation. The Executing court has also noticed the submission that even a third person claiming to be in possession and claiming title in his own right, can file objection under Order 21 Rule 97 of the Code. However, in the present case, it was nowhere the case of the Objectors that they are tenants under the petitioners. In fact they have all along claimed to be representatives of respondent No. 3. They have claimed to come into possession of the demised premises on the basis of the agreement executed between the brothers on 17.4.1998. Their plea that they are independently entitled to object as they are in possession, cannot be accepted as, in my opinion, the same is taken in collusion with respondent No. 3. They have not come to court with clean hands. No relief can possibly be granted to the respondents, who are only colluding with each other, but have tried to mislead the courts by suppressio veri suggestio falsi.