Dismissed

Ratan Lal and 2 Others v. Smt. Sunita and 4 Others

Allahabad HC25 Jan 2022A227/200/2022

Case brief

AI extract

What is this about?

Petitioners challenged an Executing Court order directing delivery of possession via Article 227 writ. The Single Judge held the order was a mere execution process, not a lis decision, and dismissed the writ petition as the decree was final.

What did the court decide?

Writ petition dismissed; order of Executing Court directing delivery of possession upheld as a mere process.

Ratan Lal and 2 Others Vs Smt. Sunita and 4 Others — Property and Title | Allahabad HC (2022)

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Court No. - 70

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Case :- MATTERS UNDER ARTICLE 227 No. - 200 of 2022

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Petitioner :- Ratan Lal And 2 Others Respondent :- Smt. Sunita And 4 Others Counsel for Petitioner :- Himanshu Pandey Counsel for Respondent :- Prem Chandra,Nand Lal Yadav

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Hon'ble J.J. Munir,J.

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This petition under Article 227 of the Constitution has been preferred by a judgment debtor, from an order of Executing Court, directing delivery of possession to the decree holder.

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2. Heard Mr. Himanshu Pandey, learned Counsel for the petitioners in support of this petition.

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3. The facts giving rise to this petition are thus :

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Original Suit No. 531 of 1997 was instituted by Smt. Sunita against one Sundar Lal (since deceased) for a decree of possession and mesne profits, relating to House Nos. 232, 233, 237 and 238, situate at Khanderao Gate, Jhansi. The said property shall hereinafter be referred to as “the suit property” . Smt. Sunita, who shall hereinafter be called “the plaintiff” , claimed that she had purchased the suit property from its previous owner, Ashok Kumar, through a registered sale deed dated 13.06.1997. Sundar Lal, who shall hereinafter be called “the defendant” , had notice of the transfer of title in the plaintiff’s favour. The defendant was tenant in the suit property at a monthly rent of Rs. 100/that he held on behalf of the tenant’s vendor. Upon transfer of title to the plaintiff by Ashok Kumar, the defendant had become her tenant by operation of law. The plaintiff did not pay the defendant rent ever since 13.06.1997 and refused to acknowledge her as the owner and landlord. Instead, he inducted one Rajesh Kushwaha, impleaded as defendant no. 2 to the suit, as a sub-tenant in the suit property. The defendant realised rent from Rajesh Kushwaha as his sub-tenant.

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4. In these circumstances, the plaintiff was driven to serve a notice to quit and pay arrears of rent upon the defendant on 10.11.1997. The notice was served upon the defendant on 17.11.1997. Despite service of

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the notice to quit, the defendant neither delivered possession nor paid the arrears of rent. Instead, he answered the notice on incorrect premises. The plaintiff, therefore, brought Suit No. 531 of 1997 for possession, as said hereinbefore.

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5. The suit was contested by the defendant by filing his written statement. He denied that the plaintiff was the owner of the suit property. The defendant also denied that Ashok Kumar, the vendor, was not the true owner of the suit property. It was pleaded that even if the plaintiff had got a registered sale deed from Ashok Kumar, it did not confer any title upon her. It was also denied that the defendant was a tenant in the suit property at a monthly rent of Rs. 100/- on a lease from Ashok Kumar, or that upon transfer of title, as claimed by plaintiff, the defendant has become her tenant. There was never in existence relationship of landlord and tenant either between plaintiff and the defendant or Ashok Kumar and the defendant. So far as Rajesh Kushwaha is concerned, he was the defendant’s maternal grandson. He was not a sub-tenant. Rajesh Kushwaha stays with the tenant for the past 30 years. It was asserted that the suit property was inherited by the defendant from his father, the late Gyasi. It was alleged that the property was inherited by the defendant and his brothers as a Joint Hindu Family, where he stayed with his other family members. It was also averred that Ashok Kumar had played fraud upon the defendant and got a sale deed dated 23.01.1983 executed. A suit had been filed by Hari Ram, the defendant’s son, being Original Suit No. 510 of 1993 to cancel the aforesaid sale deed that was pending before the Court. It was also averred that upon execution of the sale deed on the basis of a bogus title from Ashok Kumar, the plaintiff attempted to forcibly take possession of the suit property, which led to an assault and altercation. The aforesaid episode is the subject matter of a criminal case, pending before the Chief Judicial Magistrate, Jhansi. It is also averred that the defendant’s son, Hari Ram, had also filed Original Suit No. 248 of 1997 against the plaintiff and Ashok Kumar, seeking permanent injunction (presumably after the episode of violence) that is pending before the Civil Judge (Junior Division), Jhansi. It was asserted that since the

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plaintiff was not the owner of the suit property, she did not have the right to dispossess the defendant and seek other reliefs.

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6. Pending suit, the defendant died and in his stead, seven of his heirs were substituted in Original Suit No. 531 of 1997 as defendant nos. 1/1 to 1/7. Of these seven heirs of the defendant, petitioner nos. 1, 2 and 3 are defendant nos. 1/1, 1/2 and 1/7 to the suit, respectively. The other heirs and defendants to the suit have been impleaded as proforma respondents/respondents second set to the petition.

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7. The Trial Court framed the following issues (translated from Hindi into English) :

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1. Whether the plaintiff is the owner in possession of the disputed houses?

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2. Whether relationship of landlord and tenant exists between the plaintiff and defendant no. 1, if yes, its effect? 3. Whether the suit is bad for mis-joinder of parties? 4. Whether the plaintiff’s suit deserves to be stayed under Section 10 CPC?

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5. Whether the plaintiff is entitled to the reliefs claimed? 6. Whether the plaintiff is entitled to the reliefs claimed? 7. Whether the property in dispute is a Joint Hindu Family property? 8. Whether the Court has jurisdiction to try the suit?

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8. Documentary and oral evidence were led by both sides and after trial, the suit was decreed in part by the learned Civil Judge (Junior Divsion), Jhansi vide judgment and decree dated 22.11.2009 in terms that the defendants to the suit, including the petitioners here, were ordered to deliver possession of the suit property to the plaintiff within two months of the decree, failing which, the plaintiff would be entitled to recover possession at the defendants’ cost through process of Court. This decree of the Trial Court was challenged by the petitioners as also by the other defendants to the suit, except Rakesh Kushwaha, by means of Civil Appeal No. 105 of 2009, carried to the District Judge of Jhansi. The appeal was assigned to the Additional District Judge, Court No. 7, Jhansi, before whom it came up for determination on 19.07.2017. The learned Additional District Judge dismissed the appeal and affirmed the decree of the Trial Court.

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9. It is not the case of the petitioners before this Court that the appellate decree dated 19.07.2017 has been challenged further by way of a Second Appeal to this Court. Rather, it is the case of petitioner no. 3 that the suit for cancellation instituted to set aside the sale deed dated 23.12.1983 got executed fraudulently in favour of Ashok Kumar by the defendant has been dismissed. It is the third petitioner’s case that the property is one that belongs to a Joint Hindu Family and Sundar Lal alone could not have transferred it to Ashok Kumar. But, failing in his suit for cancellation, the petitioner no. 3 appealed the decree to the District Judge vide Civil Appeal No. 100 of 2004, which too has been dismissed. From the appellate decree, Second Appeal No. 604 of 2010 has been preferred to this Court, but it is candidly pleaded by the petitioners that no interim order has been passed in the Second Appeal or the appeal admitted to hearing.

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10. It is urged on behalf of the petitioners that they have not preferred any Second Appeal from the Appellate Court’s decree dated 29.07.2017, because they were wrongly advised that the title of Ashok Kumar is subjudice before this Court in the Second Appeal filed by the petitioner no. 3 from the dismissal of his suit for cancellation of the sale deed of 1983, executed by Sundar Lal in favour of Ashok Kumar. The plaintiff has applied for execution of the decree for possession, on the basis of which, Execution Case No. 5 of 2010 has been registered. In the said execution case, the petitioners have filed objections under Section 47 read with Section 151 CPC, that were registered as Misc. Case No. 171 of 2017 on the file of the Civil Judge (Junior Division), Jhansi. The said objections have come to be rejected by an order dated 28.01.2020. The order dated 28.01.2020 rejecting the petitioners’ objections is the subject matter of challenge in Matters under Article 227 No. - 1539 of 2020 and is said to be sub-judice. It is not denied that the said petition has not been admitted or even heard. Now, that the decree for possession has become final and the objections under Section 47 have been rejected by the Executing Court, the order impugned dated 06.12.2021 has been passed by the Executing Court, issuing a writ of possession to the Amin , directing delivery of the suit property to the plaintiff, who is the decree

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holder. Mr. Himanshu Pandey, learned Counsel for the petitioner has very persuasively argued to convince this Court that the Courts below have not taken care to evaluate the extent of the suit property that is the subject matter of Original Suit No. 531 of 1997, which he says is an area of 720 square feet alone. However, under the garb of that decree, a much larger area is being attempted to be delivered possession of to the plaintiff by the Executing Court.

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11. To the understanding of this Court, the issue which Mr. Pandey raises is one relating to the execution, discharge or satisfaction of the decree. The defendant’s objections under Section 47 have already been rejected. Though the order rejecting the objections under Section 47 is apparently revisable, it appears that the petitioners or whoever are the judgment debtors, have preferred a petition under Article 227 of the Constitution, which is pending, but not admitted to hearing. No relief, interim or final, has been granted. The decree for possession has admittedly become final between parties and objections to execution refused by the Executing Court, with no relief from any superior forum forthcoming.

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12. In the face of these facts, the order impugned, issuing a writ of possession to the Amin , is a logical consequence and a mere process. It is not an order deciding a lis between parties. It cannot be permitted to be utilised by the defendant-judgment debtors as an opportunity to agitate their claim collaterally or indirectly, where they have lost their claim so far before all Courts of competent jurisdiction. Even otherwise, the order impugned dated 06.12.2021 being no more than a process, is not open to the scrutiny of this Court under Article 227 of the Constitution.

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13. In the result, this petition fails and stands dismissed .

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Order Date :- 25.1.2022 I. Batabyal

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(J.J. Munir, J.)

Ratan Lal and 2 Others v. Smt. Sunita and 4 Others

Case brief

What is this about?

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Ratan Lal and 2 Others v. Smt. Sunita and 4 Others

Case brief

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