Allahabad High Court
Manorama vs In The Court Of District Judge Lko. ... on 18 July, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:46656
Court No. - 20
Case :- MATTERS UNDER ARTICLE 227 No. - 3535 of 2023
Petitioner :- Manorama
Respondent :- In The Court Of District Judge Lko. And 6 Others
Counsel for Petitioner :- Shobhit Nigam
Counsel for Respondent :- Bajrangi Verma
Hon'ble Manish Mathur,J.
(1) Heard learned counsel for petitioner and Mr. Bajrangi Verma, learned counsel for opposite party no.7-Caveator. In view of the order being passed, notice to opposite party nos.1 to 6 stands dispensed with.
(2) Petition under Article 227 of the Constitution of India has been filed challenging order dated 08th February, 2023 passed in Misc. Case No.192 C of 2005 whereby objections preferred by petitioner under Order XXI Rule 97 of the Code of Civil Procedure, 1908 have been rejected. Also under challenge is the judgment and order dated 17th May, 2023 passed in Misc. Civil Appeal No.49 of 2023 whereby the order of Trial Court was upheld.
(3) It has been submitted that initially one Smt. Dulara had filed petition for arrears of rent and eviction against one Gurudas Vishwakarma. The Suit was registered as Regular Suit No.279 of 1966. During pendency of Suit, Smt. Dulara allegedly executed a sale deed in favour of one Sripal on 23rd August,1969, who is the predecessor in interest of opposite party nos.3 to 7. The said Suit was dismissed vide order and decree dated 02nd June, 1971, but First Appeal No.372 of 1971 was allowed and the Suit was decreed vide judgment and order dated 19th December, 1972.
(4) It has been submitted that the Appellate Court has specifically indicated in the order that Suit is being decreed only with regard to Smt. Dulara and not with regard to Sripal. The tenant preferred Second Appeal No.329 of 1973 which was also dismissed on 08th October, 1982 whereafter Execution Petition No.1 of 1983 was filed with Smt. Dulara and Sripal being co-applicants. In the said proceedings, the petitioner filed an application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 which has been dismissed by means of impugned orders.
(5) Learned counsel for petitioner submits that trial Court has completely ignored the fact that during the course of execution proceedings, Smt. Dulara had passed away and none of her heirs were substituted in the said proceedings and since the decree had been passed only qua Smt. Dulara and not Sripal, the decree as such was inexecutable due to which the execution proceedings were required to be rejected. It is also submitted that trial Court has not at all adverted the fact that petitioner was claiming title over the Suit premises by virtue of registered sale deed dated 21.04.1986 which was executed by one Dayashankar and infact the property was never owned by Smt. Dulara and therefore the sale deed executed in favour of Sripal was meaningless. It is further submitted that the provisions of Section 146 of the Code of Civil Procedure, 1908 have been wrongly relied upon by the trial Court.
(6) Learned counsel appearing on behalf of answering opposite party has refuted submissions of learned counsel for petitioner with the submissions that the impugned order clearly adverts to the fact that the husband of petitioner, namely Bachau Sonkar, who appeared as P.W.2, in his cross examination clearly substantiated the fact that Smt. Dulara inherited the Suit property by virtue of succession. He has also submitted that petitioner is claiming title over property by virtue of sale deed executed by Dayashankar who himself had filed objections in the execution petition, which were rejected but against which appeal is pending consideration. It is thus submitted that petitioner as the alleged vendee would step into the shoes of Dayashankar and would not have any independent right and therefore when the objections of Dayashankar himself had been rejected, the petitioner not having any independent right, the application was rightly rejected.
(7) Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident that trial Court has rejected objections of petitioner primarily on the basis of deposition of petitioner's husband as P.W.2.
(8) It has also recorded a finding that there was no material on record to indicate how Dayashankar became owner of the property in Suit as well as the fact that since objections of Dayashankar himself had been rejected, then the objections raised by petitioner who was claiming through Dayashankar could not be maintainable.
(9) It is a relevant factor that the initial proceedings were for arrears of rent and ejectment of tenant from the Suit premises and were not with regard to title of rights in any Suit for declaration. As such, the only aspect required to be considered by the Trial Court was the relationship of landlord and tenant which has been admitted as evident in the impugned orders. It is also a factor that petitioner is claiming title over the property through execution of registered sale deed by Dayashankar in her favour. It is admitted that in the execution proceedings, Dayashankar himself filed objections which were rejected and against which an appeal is said to be pending. In such circumstances, no exception can be taken to the impugned order to the effect that when objections of Dayashankar himself were rejected, the petitioner who is claiming through Dayashankar, does not have any independent right and her rights would naturally flow from the rights accrued to Dayashankar and as such would be dependent on the outcome of the pending appeal instituted by Dayashankar. It has been admitted by learned counsel for petitioner that as yet no Suit for declaration has been filed either by Dayashankar or by the present petitioner with regard to their title over the Suit property.
(10) It is also an admitted fact that neither the tenant nor any person claiming under him has objected to the execution proceedings which are pending consideration since 1983. The aspect as to whether the execution proceedings can be continued after demise of Smt. Dulara at the instance of Sripal has already been adjudicated by the impugned order taking recourse to Section 146 of the Code of Civil Procedure, 1908. Furthermore, it is also an aspect to be considered that when Smt. Dulara herself admitted to having executed a registered sale deed in favour of Sripal, he would naturally gain rights over the Suit property in terms of Section 107 of the Transfer of Property Act, 1882 and therefore also no exception can be taken to the finding recorded under the impugned order with regard to same.
(11) In view of the discussions made herein above, the petition being devoid of merits is dismissed at the admission stage itself.
(12) Parties to bear their own cost.
Order Date :- 18.7.2023
Arnima
