I have heard Mr. Neeraj Garg, learned counsel for the objector/petitioner and Mr. Piyush Garg, learned counsel for the plaintiff/decree holder/respondent, herein, and have carefully perused the record.
Objector/petitioner, herein, is claiming himself to be a tenant of the plaintiff/decree holder/respondent, herein, over the part of the suit property of OS No. 414 of 1994 as shown in the map annexed with the objection under Order 21 Rule 97 of CPC. It is very strange to note that objector/petitioner, herein, has not produced on record either any rent deed or any rent receipt or any document to show that he was inducted as tenant by the plaintiff/decree holder in part of the suit property. Perusal of the objection under Order 21 Rule 97 of CPC would reveal that it is not stated anywhere as to when objector/petitioner, herein, was inducted as tenant in the part of suit property of OS No. 414 of 1994. Not only this, description of property given at the foot of the plaint of OS No. 414 of 1994 reveals that to the North of the suit property, property under the occupation of Jubeda, to the South of the suit property, property in occupation of Parvej, to the East of the suit property, Gandhi road and to the West of the suit property, property of others situate. If details and boundaries of the properties, as given in the plaint of OS No. 414 of 1994, are compared with the map annexed with the objection under Order 21 Rule 97 of CPC, it would reveal that entire property shown in the map annexed with the objection under Order 21 Rule 97 is the same as described and given in the plaint of OS No. 414 of 1994. In the civil suit defendants/third party admitted their possession on the
entire suit property as tenants of the plaintiff/ decree holder. They have hotly contested the suit till second appeal. Had objector been in possession over the part of the suit property, defendants/third party could have easily stated that description of suit property was incorrect. No collusion between the plaintiff and defendant is suggested by the objector nor could be inferred in view of the fact that suit was hotly contested. Therefore, in view of the discussion made hereinbefore, it can very well be said that objector / petitioner herein has failed to prove his independent possession over any part of the suit property as tenant of the plaintiff / decree holder.
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2688 of 2014 (M/S)
Sabir Khan @ Billu V Naushad Ahmad
Citation; AIR 2015(NOC)233 UTR
Hon’ble Alok Singh, J
Present petition is filed assailing the judgment and order dated 26.11.2014 passed by 1st Additional District Judge, Dehradun in Civil Revision No. 33 of 2014, whereby revision filed by the present petitioner was dismissed upholding the judgment and order passed by the Civil Judge (J.D.), Dehradun.
Brief facts of the present case, inter alia, are that Naushad Ahmad, plaintiff/respondent, herein, had filed OS No. 414 of 1994 against Jalil Lohar and three others in the Court of Munsif, Dehradun for ejectment of the defendants from the suit property mentioned at the foot of the plaint saying that plaintiff/respondent, herein, was the owner/landlord of the suit property; open piece of land (suit property) was let out to the defendants/third party and their tenancy was terminated by the notice under Section 106 of the Transfer of Property Act dated 1.11.1994, however, even after expiry of the period of statutory notice under Section 106 of the Transfer of Property Act, defendants failed to handover possession of the suit property. Suit was hotly contested by the
defendants/third party saying that defendants were protected under UP Act No. 13 of 1972 and their tenancy could not have been terminated by issuance of the simple notice under Section 106 of the Transfer of Property Act. Suit was, however, decreed by the learned Trial Court vide judgment and decree dated 15.3.2001. Defendants/third party, thereafter, preferred first appeal before District Court, which too was dismissed by ADJ/FTC–I on 22.11.2011. Defendants, thereafter, preferred second appeal before this Court, which too was dismissed on 9.5.2013. Plaintiff, thereafter, approached the Executing Court for execution of the decree passed in OS No. 414 of 1994, as upheld by this Court in second appeal. During the execution, present petitioner preferred objection under Order 21 Rule 97 of CPC saying that objector/petitioner, herein, is in actual physical possession of the part of the suit property as shown in the map annexed with the objection under Order 21 Rule 97 shown as quarter in possession of the objector, therefore, since the objector/petitioner/herein, was not a party in suit, he cannot be dispossessed/ evicted in the garb of decree passed in OS No. 414 of 1994. Decree holder/respondent, herein, contested the objections so filed. Objections were dismissed by the learned Executing Court, vide judgment and order dated 3.4.2014. Feeling aggrieved, objector/petitioner, herein, preferred Civil Revision 33 of 2014, which too came to be dismissed vide impugned judgment and order dated 26.11.2014. Feeling aggrieved, objector/petitioner, herein, has approached this Court by way of present petition filed under Article 226/227 of the Constitution of India.
I have heard Mr. Neeraj Garg, learned counsel for the objector/petitioner and Mr. Piyush Garg, learned counsel for the plaintiff/decree holder/respondent, herein, and have carefully perused the record.
Objector/petitioner, herein, is claiming himself to be a tenant of the plaintiff/decree holder/respondent, herein, over the part of the suit property of OS No. 414 of 1994 as shown in the map annexed with the objection under Order 21 Rule 97 of CPC. It is very strange to note that objector/petitioner, herein, has not produced on record either any rent deed or any rent receipt or any document to show that he was inducted as tenant by the plaintiff/decree holder in part of the suit property. Perusal of the objection under Order 21 Rule 97 of CPC would reveal that it is not stated anywhere as to when objector/petitioner, herein, was inducted as tenant in the part of suit property of OS No. 414 of 1994. Not only this, description of property given at the foot of the plaint of OS No. 414 of 1994 reveals that to the North of the suit property, property under the occupation of Jubeda, to the South of the suit property, property in occupation of Parvej, to the East of the suit property, Gandhi road and to the West of the suit property, property of others situate. If details and boundaries of the properties, as given in the plaint of OS No. 414 of 1994, are compared with the map annexed with the objection under Order 21 Rule 97 of CPC, it would reveal that entire property shown in the map annexed with the objection under Order 21 Rule 97 is the same as described and given in the plaint of OS No. 414 of 1994. In the civil suit defendants/third party admitted their possession on the
entire suit property as tenants of the plaintiff/ decree holder. They have hotly contested the suit till second appeal. Had objector been in possession over the part of the suit property, defendants/third party could have easily stated that description of suit property was incorrect. No collusion between the plaintiff and defendant is suggested by the objector nor could be inferred in view of the fact that suit was hotly contested. Therefore, in view of the discussion made hereinbefore, it can very well be said that objector / petitioner herein has failed to prove his independent possession over any part of the suit property as tenant of the plaintiff / decree holder.
Mr. Neeraj Garg, learned counsel appearing for the objector/petitioner, herein, has vehemently argued that objection filed under Order 21 Rule 97 CPC should be decided as a suit after framing the issues as mandated by Order 21 Rule 101 and Rule 103 of CPC; since, no issue was ever framed, therefore, order passed by the learned Executing Court dismissing the objection under Order 21 Rule 97 CPC stands vitiated.
Objector/petitioner, herein, is claiming himself to be a tenant of the plaintiff/decree holder, while decree holder is seriously refuting the claim raised by the objector/petitioner, herein. Therefore, the only question which arose before the Executing Court was – As to whether objector/petitioner, herein, was in possession of the part of the suit property as a tenant of the plaintiff/decree holder in his independent rights? This
question was decided by the Executing Court against the objector/petitioner, herein.
Hon’ble Apex Court in the case of Nedunuri Kameswaramma v. Sampati Subba Rao reported in AIR 1963 SC 884 held as under:
“Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.”
As per the dictum of Hon’ble Apex Court in the case of Nedunuri Kameswaramma (supra), if parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, then, non-framing of issue is not fatal.
As discussed hereinbefore, the only question for determination posed before the Executing Court was as to whether objector/petitioner, herein, is in possession of the part of the suit property as a tenant of the
plaintiff/decree holder in his own independent right, and this issue has been decided against the objector/petitioner, herein, although without framing the issue. Therefore, judgment passed by the Executing Court rejecting the objection of the objector cannot be said to have been vitiated by non-framing of the issues.
As per Rule 103 of Order 21 CPC, if any application has been adjudicated upon under Rule 98 or Rule 100, order made thereon shall have the same force and will be subject to same conditions as to an appeal or otherwise as if it were a decree. Objection under Order 21 Rule 97 CPC is always adjudicated upon under Rule 98, therefore, order passed by the Executing Court rejecting the objection shall be deemed to be a decree and against the decree appeal could have been preferred. However, in the present case, instead of preferring the statutory appeal before the District Judge, the petitioner opted to prefer civil revision, which was not maintainable at all.
At this stage, Mr. Neeraj Garg, learned counsel appearing for the petitioner, has vehemently argued that since appeal ought to have been preferred and instead of preferring the appeal, a revision was preferred, therefore, order impugned passed by the Revisional Court is without jurisdiction and consequently the petitioner should be permitted to file appeal afresh before the District Judge.
I am afraid, I cannot accept this noble suggestion made by Mr. Neeraj Garg, learned counsel for the objector/petitioner, herein, for the simple reason that
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it would amount to causing further unnecessary delay in execution of the decree, which was passed in the suit filed in the year 1994 and attained finality only in the year 2013.
Since, objector/petitioner, herein, has failed to establish even prima facie rights that he was ever inducted as a tenant by the plaintiff/decree holder/respondent, herein, therefore, it seems that he had filed frivolous objection with the collusion of the judgment debtor to delay the execution of the decree.
In view of the discussions made hereinbefore, I have no hesitation to hold that entire exercise undertaken by the objector/petitioner, herein, is nothing but an abuse of process of law. Therefore, petition is dismissed. Executing Court is directed to proceed with the execution forthwith and to explore every possibility to deliver the possession to the decree holder as per the decree passed by the Trial Court and confirmed by this Court in second appeal, in any case, within sixty days from today.
CLMA No. 13857 of 2014 also stands disposed of accordingly.
(Alok Singh, J.)
4.12.2014
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