Dismissed

Om Prakash Dubey v. Tata Iron and Steel Company Limited and Anr.

Jharkhand HC19 Nov 2019WPC/476/2013

Case brief

AI extract

What is this about?

The High Court rejected a writ petition challenging an appellate order that dismissed an appeal against an executing court's rejection of an application seeking dismissal of an execution case based on alleged adverse possession. The court held the appellate order was correct as the lower court did not adjudicate merits.

What did the court decide?

The writ petition was dismissed. No order as to costs.

Om Prakash Dubey Vs Tata Iron and Steel Company… — Execution and Attachment | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.-476 of 2013

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Om Prakash Dubey …Petitioner

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-V e r s u s-

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Tata Iron & Steel Company Limited, a joint stock company having its registered office in Bombay

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Jamshedpur cooperative stores having its office at Bistupur, Jamshedpur, District- East Singhbhum

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…Respondents

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CORAM: - HON’BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner :- Mr. Sachin Kumar, Advocate Mr. Ravi Prakash Mishra, Advocate Mrs. Surabhi, Advocate For the Respondents :- Mr. G.M. Mishra, Advocate Mr. Umesh Mishra, Advocate

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Order No.-11 Dated: 19.11.2019

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The present writ petition has been filed for quashing of the order dated 02.02.2012 passed by the District Judge-II, Jamshedpur in Misc. Appeal No. 34 of 2007 whereby the order dated 15.09.2007 passed by the Munsif, Jamshedpur in Misc. Case No. 07 of 2007 has been upheld.

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2. The factual background of the case as stated in the writ petition is that the Tata Iron & Steel Company Limited (respondent no. 1) filed Eviction Suit No. 262 of 1984 against Jamshedpur Cooperative Stores (the respondent no. 2) in the Court of Munsif, Jamshedpur in respect of Quarter no.H-2/55 situated at M-Road Bistupur, Jamshedpur (hereinafter referred to as “the rented premises”) and got an ex-parte decree on 05.08.1989 against the respondent no.2. Thereafter the respondent no.1 preferred application for execution which was registered as Execution Case No.-03 of 1990. According to the petitioner, when his father came to know about the said execution case, he preferred an application dated 25.06.2007 under Order XXI Rule 101 read with section 151 of the Code of Civil Procedure (in short “ the CPC”) being Misc. Case No.07 of 2007 before the concerned court praying inter alia for dismissal of the aforesaid execution case on the ground that he had been in exclusive possession and enjoyment of the rented premises for more than 40 years and had perfected his right, title, interest and possession over the same by way of adverse possession. The said Misc. Case preferred by the

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petitioner’s father was however dismissed vide order dated 15.09.2007. The petitioner’s father being aggrieved by the said order preferred appeal being Misc. Appeal No. 34 of 2007 before the District Judge-II, Jamshedpur. In course of hearing of the said Misc. Appeal, the appellant (petitioner’s father) died and the petitioner was substituted in his place vide order dated 04.03.2010. However, the said appeal was also dismissed vide impugned order dated 02.02.2012 on the ground of maintainability.

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3. The learned counsel for the petitioner submits that the petitioner was in continuous possession of the rented premises since 12.08.1965 and was enjoying the same but the respondent no. 1 did not make him party defendant in the eviction suit and as such the said suit was liable to be dismissed due to mis-joinder and non-joinder of necessary party. It is further submitted that the learned courts below did not take into consideration that on preferring an application under Order XXI rule 97 or rule 99 of C.P.C., all the questions including that of right, title and interest in the property arising between the parties or their representatives to a proceeding relevant in the adjudication of the said application, are required to be determined by the court dealing with the application and not by a separate suit and for this purpose, the court, notwithstanding anything contrary contained in any other law for the time being in force, is deemed to have the jurisdiction to decide such questions. The appellate court ought to have taken into consideration that the petitioner was one of the necessary parties in the eviction suit as he was in possession of the same since long. It is also submitted by the learned counsel for the petitioner that the original court i.e Civil Judge (Junior Division-I), Jamshedpur vide order dated 15.09.2007 passed in Misc. Case No.07 of 2007, in fact, made adjudication of the dispute under Order XXI Rule 101 read with Section 151 of the CPC and as such the appellate court i.e. the District Judge-II, Jamshedpur committed serious error in rejecting the Misc. Appeal No.34 of 2007 observing that the order of the original court is not a decree and therefore the appeal is not maintainable. It is also submitted that it would be evident from the report of the Sheristedar that the application preferred by the petitioner praying that his right, title and interest should be

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investigated and decided, was placed before the court for hearing. Thus, it cannot be said that the application of the petitioner was taken up on the point of admission and subsequently rejected vide order dated 15.09.2007.

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4. On the contrary, the learned counsel for the respondent no.1 submits that the eviction suit filed by the respondent no.1 was decreed ex-parte and the execution case is still pending. The respondent no.2 filed miscellaneous application for setting aside the ex-parte decree, however the same was dismissed for default. The petitioner’s father filed an application under Order XXI Rule 101 read with section 151 of CPC on 25.06.2007 for dismissal of the Execution Case No. 3 of 1990 which was registered as Misc. Case No. 07 of 2007 wherein he admitted that he was a trespasser in the rented premises, however claimed that he acquired right, title and interest over the same by way of adverse possession. The said miscellaneous application was dismissed on 15.09.2007 at the admission stage itself by the learned Munsif, Jamshedpur by passing a reasoned order. It is further submitted that the petitioner has no prima facie case and the balance of convenience is also not in his favour as he is a trespasser. The petitioner has no locus standi to assail the impugned order passed by the learned Munsif as well as the appellate court. The provisions of Section 12 of the Bihar (now Jharkhand) Building (Lease, Rent and Eviction) Control, Act (in short “the Act, 1982”) was introduced just to facilitate the execution of the eviction decree passed under the provisions of the said Act. Section 12 of the aforesaid Act mandates that the delivery of possession should be effected and the vacant possession is to be delivered either by dispossessing the tenant or any person who may be in occupation by setting up a third person and inducting any person as tenant at the time of delivery of possession. The petitioner’s claim that he was in exclusive possession of the rented premises for more than 40 years and thus perfected right, title and possession over the same, is completely false. Irrespective of the fact that the eviction suit was decreed ex-parte on 05.08.1989, if the petitioner had been in possession of the rented premises, he would not have waken up after lapse of 18 years by filing an application under Order XXI Rule 101 read with section 151 of CPC and, that too,

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after dismissal of the application preferred by the respondent no. 2 for setting aside the ex-parte decree. Learned counsel for the respondent no. 1 also submits that the application under Order XXI Rule 101 of C.P.C. could not have been allowed unless the right of the petitioner was adjudicated by a competent court that he acquired title by way of adverse possession.

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5. Heard the learned counsel for the parties and perused the materials placed on record.

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6. The main submission of the learned counsel for the petitioner is that the appellate court has committed jurisdictional error in dismissing the appeal treating the same to be not maintainable observing that the order dated 15.09.2007 passed by the Munsif, Jamshedpur cannot be termed as decree.

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7. To appreciate the said contention of the learned counsel for the petitioner, I have gone through the record of the case. It is evident from the report of the Sheristedar dated 27.06.2007 given on the application of the petitioner filed under Order XXI Rule 101 of the CPC that the file was placed before the executing court for hearing the same on the point of admission. The Munsif, Jamshedpur rejected the said application of the petitioner without going into the merit of the case merely considering the provisions of Section 12 of the Act, 1982.

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8. The Hon’ble Supreme Court in the case of Sameer Singh & Another Vs. Abdul Rab & Others reported in (2015) 1 SCC 379 has held as under:-

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“ 27 . Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury. The same principle has been reiterated in Keshardeo Chamria v. Radha Kissen Chamria and Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi. Needless to emphasise, the said principle is well settled. After the amendment of Section 115 CPC w.e.f. 1-7-2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai. Had the executing court apart from expressing the view that it had become functus officio had adjudicated the

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issues on merits, the question would have been different, for in that event there would have been an adjudication. 28 . In view of the forging analysis, we conclude and hold that the High Court has fallen into error by opining that the decision rendered by the executing court is a decree and, therefore, an appeal should have been filed, and resultantly allow the appeal and set aside the impugned order. The High Court shall decide the matter as necessary under Article 227 of the Constitution of India. As a long span of time has expired we would request the High Court to dispose of the matter within a period of three months. There shall be no order as to costs.

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9. It would thus be evident that if the executing court does not enter the merit of the case of the parties and passes order on an application filed under Order XXI Rule 101 of the CPC, the said order cannot be termed as decree under Order XXI Rule 103 of the CPC and in that situation, the appeal is not maintainable though the said order may be challenged before the High Court under Article 227 of the Constitution of India. In the present case, the executing court did not enter the merit of the petitioner’s claim, rather rejected his application merely on the ground that the order of eviction passed against the judgment debtor is also binding against the petitioner. Moreover, the executing court rejected the application of the petitioner at the admission stage itself without adjudicating any other issues raised by the petitioner. Thus, I do not find any infirmity in the impugned order dated 02.02.2012 passed by the learned appellate court.

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10. Otherwise also, in the case of Bibi Zafira Khatoon & Ors. Vs. Mohammed Hussain & Another reported in (2009) 10 SCC 658, the Hon’ble Supreme Court had the occasion to interpret the provisions of Section 12 of the Act, 1982, the relevant part of which reads as under:-

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“ 17 . We shall now consider whether Section 12 of the Act should have been invoked by the executing court for ordering eviction of Respondent 1 from the suit premises. That section reads as under:

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“ 12. Binding nature of the order of the court on all persons in occupation of the building.—Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason, whatsoever, and any order is made by the court under this Act, for the recovery of possession of such premises, the order shall be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom:

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Provided that nothing in this section shall apply to any person who has an independent title to such a premises or

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to tenant who has been inducted with the express written permission of the landlord himself personally.”

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By enacting the above reproduced provision, the legislature has ensured that an order made by the court for recovery of possession should be executed in a wholesome manner and the landlord should not be compelled to enter into further prolonged litigation for the purpose of getting possession of the suit premises simply because the tenant may have, without the knowledge or permission of the landlord, inducted some other person in the tenanted premises. This is the reason why Section 12 begins with a non obstante clause and lays that where the interest of tenant is determined and an order is made by the court for recovery of possession of the premises, such order shall be binding on all persons, who may be in occupation of the premises, and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom.

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18 . The use of the words “all persons” in the substantive part of Section 12 signifies the legislative intendment that the order passed by the court for the recovery of possession of the tenanted premises should bind everyone who may be occupying the premises irrespective of his status. To put it differently, Section 12 seeks to ensure delivery of vacant possession of the premises to the landlord by evicting not only the tenant but any other person who may be occupying the premises. The proviso to Section 12 protects the person who has independent title to such premises or the tenant who has been inducted with the express written permission of the landlord himself personally.

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19. If the case in hand is examined in the light of the plain language of Section 12 and keeping in view the fact that while deciding the suit for specific performance filed by Respondent 1, the trial court recorded an unequivocal finding that Syed Mohammed Jalaluddin had not put Respondent 1 in possession of the suit premises and the said finding has been confirmed by the High Court, his continued occupation thereof has to be treated as unauthorised and Section 12 of the Act is clearly attracted in his case.

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20. Respondent 1 cannot take benefit of first part of the proviso to Section 12 because the suit for specific performance of the agreement for sale filed by him was dismissed by the trial court and challenge to the judgment and decree of the trial court has been negatived by the High Court and this Court. Respondent 1 cannot take advantage of second part of the proviso to Section 12 because it is neither his pleaded case nor any evidence was produced before the trial court to show that he was inducted as a tenant in the suit premises with express permission of the landlords i.e. Appellant 1 and her husband.

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21. In view of the above discussion, we hold that the executing court committed an error by refusing to execute the decree of eviction against Respondent 1 and the view taken by the High Court on the applicability of Section 12 of the Act qua Respondent 1 is clearly flawed and untenable. As a corollary to this conclusion, the appeal is allowed, the impugned order is set aside and the execution application filed by the appellants is allowed. Respondent 1

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and his family members who are occupying the suit premises are allowed three months’ time to vacate the same and hand over physical possession thereof to the appellants herein. This will be subject to the condition of filing of usual undertaking within four weeks from today”.

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11. In the present case, though the petitioner has claimed that he was in possession of the rented premises for more than 40 years and as such he acquired title over the same by adverse possession, however he neither averred in his application under Order XXI Rule 101 of CPC nor before this Court as to how he/his father came into possession of the rented premises. The petitioner has also not made any specific averment as to whether he has been claiming right upon the rented premises independently or through the judgment debtor. Thus, he failed to prove that his case comes under the Proviso to Section 12 of the Act, 1982. The petitioner has obstructed the execution proceeding after lapse of 18 years, that too, subsequent to the application preferred by the respondent no. 2 for setting aside the ex-parte decree which was dismissed for default. The petitioner has also not brought on record any document in support of his title over the rented premises either before the courts below or in the present writ petition.

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12. In view of the aforesaid fact and circumstance, I do not find any infirmity in the impugned order dated 02.02.2012 passed by the District Judge-II, Jamshedpur in Misc. Appeal No.34 of 2007.

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13. The writ petition is, accordingly, dismissed.

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(Rajesh Shankar, J.)

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Ritesh/A.F.R.

Om Prakash Dubey v. Tata Iron and Steel Company Limited and Anr.

Case brief

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Om Prakash Dubey v. Tata Iron and Steel Company Limited and Anr.

Case brief

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