Dismissed

Ramesh Kumar v. Rakesh Kumar

Himachal Pradesh HC12 May 2015CR/4/2015

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging an order permitting execution of a decree for possession. The court held that questions of title arising under Order 21 Rules 97 and 99 CPC are to be determined by the executing court, not a separate suit. Finding the petitioner failed to prove ownership, the revision was dismissed.

What did the court decide?

Revision petition dismissed, concluding pending applications vacated, and interim order withdrawn.

Ramesh Kumar Vs Rakesh Kumar — Execution and Attachment | Himachal Pradesh HC (2015)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

Civil Revision No. 4 of 2015.

¶3

Judgment reserved on: 7.5.2015

¶4

Date of decision: May 12, 2015.

¶5

Ramesh Kumar and others. …… Petitioners. Vs.

¶6

Rakesh Kumar and another ….. Respondents

¶7

Coram

¶8

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ No

¶9

For the petitioners : Ms. Ritta Goswami and Ms. Komal Chaudhary, Advocates. For the respondents : Mr. G.R. Palsra, Advocate.

¶10

Tarlok Singh Chauhan, J.

¶11

The petitioner –Ramesh Kumar is third party objector whose objections under Order 21 Rule 97 read with 47 and 151 of CPC has been dismissed.

¶12

Briefly stated, the facts leading to filing of this revision petition are that Decree Holder (for short DH) had filed a suit against the Judgment Debtors (for short JDs) for possession of the rented shops which was decreed in their favour and since no appeal against the same was filed it attained finality.

¶13

The petitioner was not a party to the suit and filed objections under the aforesaid provisions by claiming that the suit property was jointly owned and possessed by the petitioner alongwith

¶14

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

¶15

…2…

¶16

JDs. He further maintained that he had no prior knowledge about passing of the decree and came to know about the same when the DH and JDs started creating hindrance over the possession of the objector on 8.2.2009. He claimed himself to be the owner and in possession of half share of the property.

¶17

Decree Holder filed reply to these objections and raised preliminary objections regarding the maintainability and cause of action. Decree Holder denied the allegation regarding the objector being either the owner or in possession of the property in dispute. It was further stated that these objections were not maintainable in view of the objector having already filed an application under Order 1 Rule 10 CPC which had been unconditionally withdrawn. It is then claimed that this application has been filed only to deprive the DH of the fruits of the decree and linger on the execution petition.

¶18

The learned Executing Court vide order dated 1.9.2014 dismissed the objections and held the decree holders to be entitled to be put in possession of the suit property and accordingly issued the warrant of possession.

¶19

The objector has filed this revision petition challenging the order of the learned Executing Court on the ground that the findings of the learned Executing Court that no appeal had been filed against the judgment dated 31.3.2008 is factually erroneous inasmuch as the JDs have challenged this finding before this Court in RSA No. 112 of 2009, which is now pending adjudication. It is then claimed that the learned Courts below have acted with material illegality and irregularity in exercise of its jurisdiction and, therefore,

¶20

…3…

¶21

the order passed by the learned Executing Court deserves to be setaside.

¶22

I have heard the learned counsel for the parties and have gone through the records of the case.

¶23

Ms. Ritta Goswami, assisted by Ms. Komal Chaudhary, learned counsel for the petitioner has strenuously argued that the learned Executing Court has failed to take into consideration that all questions (including the questions relating to the right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, have to be determined by the Court dealing with the application and not by a separate suit. In support of her argument, she has relied upon the judgment of the Hon’ble Supreme Court in Sameer Singh and another vs. Abdul Rab and others (2015) 1 SCC 379 wherein it was held:

¶24

“15. Rule 97 deals with resistance or obstruction to possession by the holder of a decree for possession or the purchaser of any such property sold in execution of a decree. It empowers such a person to file an application to the Court complaining of such resistance or obstruction and requires the Court under sub-rule (2) to adjudicate upon the application in accordance with the provisions provided therein.

¶25

Rule 99 deals with dispossession by decree- holder or purchaser. It stipulates that:

¶26

“99. (1) where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.”

¶27

…4…

¶28

The Court is obliged to adjudicate such an application. Thus this rule, as is manifest, includes any person other than the judgmentdebtor.

¶29

Rule 101 deals with the questions to be determined. It provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with an application and not by a separate suit and for the said purpose, the executing court has been conferred the jurisdiction to decide the same.

¶30

Rule 100 deals with orders to be passed upon application complaining of dispossession. It is apt to reproduce the said rule:-

¶31

“ 100. Order to be passed upon application complaining of dispossession .- Upon the determination of the questions referred in Rule 101, the Court shall, in accordance with such determination-

¶32

(a) make an order allowing the application and directing that the applicant be put into possession of the property or dismissing the application; or

¶33

(b) pass such order as, in the circumstances of the case, it may deem fit.”

¶34

Rule 98 deals with orders after adjudication. Sub-rule (1) provides that upon the determination of questions referred to in Rule 101, the Court in accordance with determination and subject to provisions of sub-rule (2) therein make an order allowing the application and directing that the applicant be put in possession of the property or dismissing the application or pass such other order, as in the circumstances of the case it may deem fit. As far as subrule (2) is concerned, the same is not necessary to be taken note of for the purposes of present case. Rule 103 which is significant reads as follows:-

¶35

“ 103. Orders to be treated as decrees. - Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force

¶36

…5…

¶37

and be subject to the same conditions as to an appeal or otherwise as if it were a decree.”

¶38

There can be no quarrel with the proposition of law as canvassed by Mrs. Ritta Goswami because of the clear language of Rule 101 of Order 21 which reads as follows:

¶39

“ 101. Question to be determined . – All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”

¶40

Now, the only question which remains to be determined

¶41

is as to whether the objector was having any right, title or interest in the property. The petitioner while appearing in the witness box had stated that the suit property was situated in Jogindernagar and was comprising of a house and a shop. He further stated that he was owner of half share whereas the remaining half share was that of the JDs. He further claimed that the suit property had not been partitioned till date and further stated that he did not know the decree holders. Decree Holders started interfering with his possession on 8.2.2009 and it is then when he came to know regarding a decree in favour of the DHs and prior to this he was having no knowledge qua the same.

¶42

During cross-examination, the objector admitted that he had earlier filed an application under Order 1 Rule 10 CPC which was dismissed. He feigned ignorance qua the suggestion that DHs remained the tenants of Suresh Kumar and Jai Devi and before that they were tenants of their father Sh. Bhag Singh. This is the entire evidence led by the objector.

¶43

…6…

¶44

On the other hand, one of the DH Rakesh Kumar appeared in the witness box and stated that he had filed the suit against the JDs No. 1 to 4 which was decided in his favour but the possession till date had not been handed over to him. He further stated that he did not know the petitioner and further stated that the petitioner was not the owner or in possession of the disputed shop.

¶45

During cross-examination, he stated that in the earlier suit he had not made the petitioner as a party. He feigned ignorance qua the suggestion that in the revenue record the petitioner is recorded as owner of Khasra No. 1433. This is the entire evidence led by the DHs.

¶46

Surprisingly, the petitioner did not even choose to place on record the revenue record and in fact placed reliance upon a jamabandi which was attached in another suit titled as Ramesh vs. Rakesh Kumar registered as Civil Suit No. 43 of 2009. The copy of this jamabandi has been annexed as Annexure P-2 with this petition. But then a perusal of it nowhere shows the petitioner to be the owner of the property or any part thereof.

¶47

Ms. Ritta Goswami, has strenuously argued that once the jamabandi shows the suit land to be jointly possessed by Suresh Kumar and Ganga Ram to the extent of half share each, then the objector being the son of Ganga Ram is deemed to be the owner of a part of the suit property.

¶48

The argument though appears to be attractive, but is without any merit. Firstly, the jamabandi cannot be considered to be a document conferring or establishing title. The objector, independent

¶49

…7…

¶50

of the revenue record was required to establish his right, title or interest by leading clear, cogent and convincing evidence, but he has failed to do so.

¶51

The Hon'ble Supreme Court in Sardar Estates vs. Atma Ram Properties Private Limited (2009) 6 Supreme Court Cases 609 has deprecated widespread practice of starting another round of litigation on frivolous grounds once first round of litigation was over. It has been held as under: -

¶52

"9. It is evident that after the first round of litigation was over the tenant started a second round of litigation on frivolous grounds which was a flagrant abuse of the Court. This is a practice which has become widespread, and which the Court cannot approve off, otherwise no judgment will ever attain finality. Hence, we dismiss this appeal and impose a cost of Rs.10,000/- (Rupees Ten Thousand only) on the appellant which shall be paid to the respondent within two months from today. The appellant shall also hand over the premises in question, which is in his possession, to the landlord within three months from today failing which he will be evicted by police force."

¶53

The Hon'ble Supreme Court in Atma Ram Builders Private Limited vs. A.K. Tuli and others, (2011) 6 Supreme Court Cases 385 has also deprecated filing of frivolous objections in the execution proceedings initiating another round of litigation. It has been held as under:-

¶54

"4. It is deeply regrettable that in our country often litigations between the landlord and tenant are fought up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court The time has come that this malpractice must now be stopped effectively."

¶55

The learned Executing Court on the basis of the evidence led before it has rightly come to the conclusion that there is not even an iota of evidence on record to show that the objector is

¶56

…8…

¶57

either the owner or in possession of the suit property or any part thereof.

¶58

In view of the aforesaid discussion, I find no merit in this revision petition and the same is accordingly dismissed, so also the pending application(s) if any. The parties are left to bear their own costs. Interim order granted by this Court on 8.1.2015 is vacated.

¶59

May 12, 2015. ( Tarlok Singh Chauhan ), (GR) Judge

Ramesh Kumar v. Rakesh Kumar

Case brief

What is this about?

What did the court decide?

Ramesh Kumar v. Rakesh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Lashkari Ram Vs State of Hp

Surjit Singh Vs State of Hp

Nek Ram Vs Finance Commissioner (Appeals)

Ram Singh Vs State of Hp

Pawan Katoch Vs Kesri Devi

Narender Kumar Vs State