MD Nazir Ansari Vs Ranjan Bhattacharya

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.166 of 2019

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(Against the judgment dated 13.03.2019 passed by the Principal District Judge, Hazaribagh in Civil Misc. Appeal No.08 of 2014)

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Md. Nazir Ansari aged about 50 years son of Late Jumman Ali, resident of Hashmi Colony, Pagmal, P.O. and P.S. Hazaribaghh, District Hazaribaghh

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Objector/Appellant/Appellant

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Versus

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Ranjan Bhattacharya son of Late Amiyo Bhattacharya, resident of 42/1, Hari Ghosh Street, P.O. and P.S. Hari Ghosh Street, Kolkata700006 (West Benga) District- Kolkata.

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.... .... …. Decree Holder/Respondent/Respondent

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For the Appellant : Mr. Kundan Kr. Ambastha, Advocate Mr. Anurag Chandra, Advocate Mr. Sumit Kumar, Advocate

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the learned counsel for the appellant.

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This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of concurrence dated 13.03.2019 passed by the Principal District Judge, Hazaribagh in Civil Misc. Appeal No.08 of 2014 whereby and where under the learned Principal District Judge, Hazaribagh dismissed the Civil Misc. Appeal Nos.08 of 2014 and 09 of 2014 by the said common judgment dated 13.03.2019.

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The brief facts of the case is that the appellant of this appeal filed Misc. Case No.08 of 2014 in the court of Civil Judge (Senior Division)-IV, Hazaribagh

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under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure claiming that he is a third party to the decree under execution and is in occupation of the suit property in capacity of the tenant under the landlordGuru Ghosh since 1994 and he is running his business over the suit property.

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It is the further case of the appellant that the suit property, which was under execution, was the property purchased by Sukumar Ghosh from Smt. Sovna Devi by virtue of oral sale on 22.07.1952 for a consideration of Rs.91/having area 02 katha 08 chhatak 08 dhur and 06 dhurki and since then Sukumar Ghosh remained in possession of the suit land, to the knowledge of the whole world including the decree holder, peacefully and continuously. Sukumar Ghosh, thereafter, constructed house and inducted several tenants in the suit property and the objector is one of the tenants in the portion of the suit property. Sukumar Ghosh died in the year 1994 leaving behind his son namely Guru Ghosh. There was an eviction suit, being eviction suit No.06 of 1988 between Guru Ghosh and Ranjan Bhattacharya and the same was decided in favour of Rekha Bhattacharya and others and the decree passed in the said suit in a fraudulent manner. The description of the property, in respect of which the decree in eviction suit No.06 of 1988 was passed, was a vague one.

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In its show-cause, the decree holder who is the respondent of the second appeal, challenged the maintainability of the petition, filed by the objector before the Civil Judge (Senior Division), Hazaribagh, on various technical grounds. The decree, passed in eviction suit No.06 of 1998, has been upheld up to the Hon’ble Supreme Court of India. Hence, the judgment debtor, has set up the objector to frustrate the decree. The objector has been inducted as a tenant after passing of the decree in the eviction suit No.06 of 1998. The objection, filed by Guru Ghosh under Order XXI Rule 97 to 101 of the Code of Civil

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Procedure upon which Misc. Case No.14 of 2005 was dismissed after fullfledged hearing, by holding that the sada (unregistered) sale-deed was forged and fabricated one. Hence, the objector/appellant as a tenant of Guru Ghosh has no independent right, title or interest over the suit property.

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The learned Civil Judge (Senior Division), Hazaribagh considered the settled principle of law that in an execution of a decree for possession, the petition at the instance of third party is not maintainable under Order XXI Rule 97; in this respect, the learned Civil Judge (Senior Division), Hazaribagh relied upon the judgement of the Hon’ble Patna High Court in the case of Gopalji Prasad Keshri vs. Md. Reyaz reported in AIR 1995 Patna Page 66, 68 and went on to hold that the resistance or objection made by the third party in the decree of execution cannot be gone into. The learned Civil Judge (Senior Division), Hazaribagh further considered that the appellant/objector is not claiming independent right, title or interest over the suit property rather he is claiming through Guru Ghosh as a tenant of him and the petition, filed by Guru Ghoshwhom the appellant/objector claims to be his landlord, was rejected by the court and the appellant/objector is bound by the said order passed by the learned Civil Judge (Senior Division), Hazaribagh and held that the objection filed by the appellant/objector is not maintainable nor the same involves any issue legally arising between the parties and dismissed the petition of the appellant/objector.

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Being aggrieved by the order dated 29.05.2014, the appellant/objector filed Misc. Appeal No.09 of 2014 which was disposed of by the first appellate court, by the common impugned judgment. The Principal District Judge, Hazaribagh disposed of both the Civil Misc. Appeal No.09 of 2014 filed by the appellant of the second appeal and another connected Civil Misc. Appeal

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No.08 of 2014 filed by one Anwar Kamal Khan by the common impugned judgment.

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The learned first appellate court considered that a third person has no right to invoke the jurisdiction of an Executing Court under Order XXI Rule 97 of the Code of Civil Procedure but for adjudication of the independent interest in the property and a third party- objector has no locus standi to intervene in the pending execution case.

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The learned first appellate court also considered that the appellant/objector namely Md. Nasir Ansari has been inducted as a tenant by Guru Ghosh, so they do not have any independent right. The application filed under Order XXI Rule 97 of Guru Ghosh was dismissed and the Misc. Appeal filed against them has also been dismissed by the Principal District Judge, Hazaribagh in Misc. Appeal No.08 of 2009 vide order dated 05.09.2016. The learned first appellate court also held that the appellant was stranger to the dispute between the plaintiff and the defendant of eviction suit No.06 of 1988 and the appellant/objector filed Misc. Case No.09 of 2014 to defeat the rights of the decree holder for no good reason and the learned first appellate court dismissed the Civil Misc. Appeal No.09 of 2014.

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Learned counsel for the appellant submits that both the courts below mis-construed the provisions contained in Order XXI Rule 97 of the Code of Civil Procedure by dismissing the appeal filed by the appellant. The appeal has been dismissed for extraneous considerations. Hence, it is submitted that the orders and judgment, passed by both the courts below being devoid of any merit, be set aside and the application of the appellant/objector be allowed after formulating appropriate substantial questions of law.

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Having heard the submission made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that, it is a settled principle of law that only if a third party, who is in possession of the suit property under execution, claims independent right then, he can file the application under Order XXI Rule 97 of the Code of Civil Procedure.

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Now coming to the facts of the case as has rightly been held by both the courts below and it is even the admitted case of the appellant/objector that he was a tenant of Guru Ghosh. The undisputed facts remains that the application filed by Guru Ghosh under Order XXI Rule 97 of the Code of Civil Procedure was dismissed and the said dismissal order has reached its finality. Under such circumstances as the principal-landlord of the appellant/objector has already lost the plea made under Order XXI Rule 97 of the Code of Civil Procedure, certainly the appellant/objector cannot be said to be having any independent right over the suit property, which is under execution.

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Therefore, this Court do not find any illegality in the impugned judgment passed by the learned first appellate court, as it is the admitted case of the appellant/objector that he is a tenant of Guru Ghosh and has not any independent right, title, interest or possession over the suit property which is under execution.

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In view of the discussions made above, this Court is of the considered view that there is no misconstruction of any provision of law by both the courts below. Further, there is no material in the record to substantiate the contention of the appellants of any extraneous considerations made by any of the Courts below.

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