Allahabad High Court
Abdul Rehman vs Rashida Khatoon on 21 April, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. 2025:AHC:58230
Reserved on :16.04.2025
Delivered on :21.04.2025
Court No. - 9
Case :- SECOND APPEAL No. - 748 of 1992
Appellant :- Abdul Rehman
Respondent :- Rashida Khatoon
Counsel for Appellant :- Chaudhary Subhash Kumar,S.P. Lal,Sharfuddin Ahmad
Counsel for Respondent :- A.N. Srivastava,Aalok Kumar Srivastava,M.A. Qadeer,Mohd. Waris,Pt.K.K.Dubey,S.K. Dube,Sandeep Kumar,Sundeep Kumar
Hon'ble Rohit Ranjan Agarwal,J.
1. This second appeal filed under Section 100 CPC arises out of judgment and decree dated 05.03.1992 passed in Civil Appeal No. 58 of 1991 arising out of Original Suit No. 143 of 1985.
2. The appeal was admitted on 16.04.1992 and following substantial question of law no. 5 as set out in the grounds of appeal was framed:-
"5) Whether, lower appellate court rightly decreed plaintiff suit when in Ex. Case No. 91 of 63 the executing court has held that the sale deed in favour of (Smt.) Shkina, and Mohd. Wazid are sham transactions and objections filed by (Smt.) Shakina under Order 21 Rule 58 C.P.C. was rejected, and defendant was held to be the owner and in possession of the disputed house and so suit for declaration was filed within limitation ?"
3. Facts of the case, in brief, are that defendant-appellant was the owner of property in dispute. He had transferred the property in favour of one Mohd. Wazid by registered sale-deed dated 27.06.1963. On 09.07.1963, Mohd. Wazid transferred the property to one Smt. Shakina by registered sale-deed. Smt. Shakina transferred this property in favour of Khurshid Ahmad through registered sale-deed on 23.05.1983. Thereafter, Khurshid Ahmad sold the property on 15.05.1985 to plaintiff-respondent. Plaintiff filed Original Suit No. 143 of 1985 claiming relief of possession over the property and eviction of the defendant-respondent. The suit was contested and written statement was filed on 30.05.1986 wherein it was stated that one Bhagwan Das had filed suit against defendant-appellant which was decreed and in Execution Case No. 91 of 1963, an application was filed for attachment and sale of property in dispute. The appellant in order to save the property from being sold in execution of money decree had transferred the property in the name of Mohd. Wazid who thereafter had transferred the same in the name of Smt. Shakina. The subsequent purchaser, Smt. Shakina had filed an application under Order XXI Rule 58 CPC in the said execution proceedings. The executing court held the transfer through sale-deed in favour Mohd. Wazid and Smt. Shakina to be fictitious and sham and without delivery of possession and dismissed the said application. The defendant-appellant in order to save his house paid decretal amount in Execution Case No. 91 of 1963. The suit filed by plaintiff-respondent was dismissed on 27.09.1991, against which Civil Appeal No. 58 of 1991 was filed by plaintiff-respondent which has been allowed by order impugned dated 05.03.1992. Hence, the present second appeal.
4. Learned counsel for the appellant submitted that once the executing court on 30.06.1964 held that transfer in favour of Smt. Shakina was sham transaction and objections in the shape of application under Order XXI Rule 58 CPC was rejected, the sale-deed executed in favour of Mohd. Wazid and Smt. Shakina became null and void. The possession of the property was never transferred by appellant, Abdul Rehman in favour of either Smt. Shakina or Mohd. Wazid. The purchaser at that time never challenged the order passed in execution proceedings by filing a civil suit as was required under Order XXI Rule 63 CPC. The judgment of the executing court had become final and binding between the parties. Subsequent transfers by Smt. Shakina in favour of Khurshid and, thereafter, in favour of of plaintiff-respondent are all void transactions as possession was never handed over by appellant and the transactions were sham without there being any consideration paid for it. He further contended that all sale-deeds executed right from 1963 till 1985 reveal that possession was transferred along with title, but the suit has been filed for possession on the ground that defendant-appellant continued to occupy the premises on the basis of license granted by owner and he remained a licensee. He also contended that in paragraph no. 5 of the plaint, it has been mentioned that after sale-deed dated 27.06.1963, defendant continued as a licensee of Mohd. Wazid and, thereafter, Smt. Shakina, but there is no averment as to his continuation as licensee after sale-deed dated 23.05.1983 and sale-deed dated 15.05.1985. Neither the sale-deed reflected that possession was with defendant and he was in possession as a licensee, in fact, the sale-deed clearly reflected that ownership along with possession was given to subsequent purchaser in the year 1983, thereafter, in the year 1985.
5. Counsel for plaintiff-respondent submitted that the plaintiff had purchased the property from Khurshid Ahmad on 15.05.1985. Prior to it, the property was transferred in 1963 to Mohd. Wazid and, thereafter, to Smt. Shakina. The defendant-appellant continued in possession as a licensee and he was given notice to vacate the same by Smt. Shakina. He then contended that the appellate court had recorded specific finding that once the decree stood satisfied in the year 1964, appellant should have got the property transferred in his name. Further, Smt. Shakina, in the year 1978, had terminated the license of defendant-appellant and again on 15.11.1983, a notice was given terminating the license. According to him, the sale-deed executed in favour of Mohd. Wazid was prior to the attachment order passed by executing court, as such, any finding recorded by executing court in regard to transfer made in the year 1963 shall not be applicable and decree has already stood satisfied. It was on 06.10.1963 that attachment order was passed while the defendant had transferred the property in the month of June, 1963, thus, the said transaction cannot be said to be a sham transaction.
6. I have heard respective counsel for the parties and perused the material on record.
7. Before adverting to decide the issue in hand, a cursory glance of unamended provision of Order XXI Rule 58 CPC as well as amended provision are necessary for better appreciation of the case along with Rule 63 of Order XXI prior to amendment, which are extracted hereasunder:-
"ORDER XXI RULE 58 (UNAMENDED)
R. 58. Investigation of claims to, and objections to attachment of, attached property.
(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit:
Provided that no such investigation shall be made where the Court considers that the claim or objections was designedly or unnecessarily delayed.
Postponement of sale.
(2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection.
ORDER XXI RULE 58(AMENDED)
58. Adjudication of claims to, or objections to attachment of, property-- (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained--
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub- rule (2), the Court shall, in accordance with such determination,--
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claims or objection shall be conclusive.
ORDER XXI RULE 63
R.63. Saving of suits to establish right to attached property.
Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive"
8. As the first sale-deed executed on 27.06.1963 and objections having been filed by transferee of the property in dispute Smt. Shakina under Order XXI Rule 58 in Execution Case No. 91 of 1963, hence the provision of CPC as applicable at that point of time needs consideration.
9. The unamended provision of Rule 58 of Order XXI provided that where any claim is preferred or any objection is to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court was required to investigate the claim or objection as regards examination of claimant or objector as if he was a party to the suit. Rule 63 of Order XXI of unamended provision provided that where any claim or objection was preferred, the party against whom the order is made may institute a suit to establish the right which he claims to property in dispute.
10. Thus, reading of Rule 58 along with Rule 63, it is clear that once objections filed under Order XXI Rule 58 by Smt. Shakina against attachment order in Execution Case No. 91 of 1963 was dismissed holding the transaction of sale-deed dated 27.06.1963 and 09.07.1963 to be fictitious and sham, the only remedy left to Smt. Shakina was by instituting a suit against defendant-appellant, Abdul Rehman.
11. It is an admitted case that after the objections under Order XXI Rule 58 were dismissed, Smt. Shakina did not prefer any suit against defendant-appellant, Abdul Rehman for the possession over the property and defendant continued over the same. The municipal record also reflect that name of defendant continued and was neither expunged nor substituted by any subsequent purchaser till date.
12. Both sale-deeds of the year 1963 clearly reveal that possession was transferred to subsequent purchasers. The plaintiff has set up a case that defendant continued as licensee of Mohd. Wazid and, thereafter, of Smt. Shakina till transfer was made in favour of Khurshid Ahmad in the year 1983. The sale-deeds of the year 1983 and 1985 do not reflect the said fact, instead it reveal that possession was handed over to subsequent purchaser, Khurshid by Smt. Shakina and, thereafter, by Khurshid to plaintiff.
13. The trial court had recorded a specific finding, that on 30.06.1964 when the objections of Smt. Shakina were rejected, the executing court held the transfers in favour of Smt. Shakina and Mohd. Wazid to be fictitious and sham as the possession was still with the defendant. The said finding was never challenged before any court by Smt. Shakina.
14. The definition of "sham" transaction is found in speech of Diplock LJ in Snook vs. London and West Riding Investments Ltd, 1967 2 QB 786, which is extracted hereasunder:-
"As regards the contention of the plaintiff that the transactions between himself Auto Finance and the defendants were a "sham," it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create."
15. In Kanamathareddi Seethamma vs. Kanamathareddi Kotareddi, 1949 AIR (Mad) 586, the court dealing with the provisions of under Order XXI Rule 63 CPC held as under:-
"7. It remains to consider briefly the decision in Akkammal v. Komarasami (1) which the learned referring Judges considered needed reconsideration. The parties to the suit were the respondent, claiming through the Official Receiver, who had had an alienation set aside on the ground that it was a sham transaction, and the appellant, who had brought the property to sale in execution of a decree obtained against one Krishna Aiyar, who had earlier sold the property to the insolvent. In a suit filed by the son of Krishna Aiyar for partition, it was declared that the sale to the insolvent was not binding On the sons. The appellant and the respondent were both parties to this suit; and the learned Judges held that if one had regard to the principles of S. 11 of the Civil Procedure Code alone, then undoubtedly the decision in the earlier suit could not be questioned in the second suit. They however held, following Krishnarao v. Lakshmana Shanbhogue (2) Peela Yarakayya v. Venkatakrishnamraju (3) and Kumaran Uni Achan v. Kunhi Krishna Nair (4) that the provisions of O. 21, R. 63 Civil Procedure Code were mandatory, and that the decision in a claim application is final, unless the party aggrieved takes the course indicated in the rule by instituting a suit to supersede it. The learned Judges did not discuss the point made by the learned referring Judges that even when a matter has been concluded, if its conclusiveness is not put forward in a suit, where the conclusiveness would be a good point of attack or defence, the party not doing so is barred by the principle of res judicata from relying on it in another independent proceeding; but there can be no doubt that the learned Judges in Akkammal v. Komarasami (1) regarded the specific provisions of O. 21 R. 63 Civil Procedure Code as overriding the more general principle enunciated in S. 11 Civil Procedure Code. It is however unnecessary for us to go so far; for the right accrued to the respondents here after their suit had been filed and they were not bound to rely on that new right in the pending suit."
16. In Ghasi Sahu vs. Himachal Sahu, 1986 AIR (Ori) 170, the Orissa High Court held that under Order XXI Rule 63, the unamended provision, once the claim or objection is rejected the only remedy is suit, while under amended provision of Order XXI Rule 58 (4), the remedy is by way of appeal. Relevant para 6 is extracted hereasunder:-
"6. O. 43, R. 1 provides as to which of the orders are appealable. There is no mention that an order under O. 21, R. 58 is appealable O. 43, R. 1 is however, not conclusive, because of the special provision made in sub-rule (4) of O. 21, R. 58 which is reproduced for easy reference:--
"Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."
The aforesaid provision clearly indicates legislative intention to the effect that under. O. 21, R. 58 a claim or objection shall be adjudicated upon as if it were a suit and the final order shall have the force of a decree within the meaning of the definition of 'decree' in S. 2(2) of the Code. Such decree is appealable. This view is supported by a decision of this Court reported in (1979) 1 Cut WR 147, Kwality Restaurant v. Trilochan Singh Deo, in which it was held:--
"Fourthly, the old Rule gave a right of suit to the aggrieved party under O. 21, R. 63 C.P.C. but, under the new Rule, the remedy is by way of appeal and not by way of suit. It is only in cases where the Court refuses to entertain the claim or objection, then the remedy will be by way of a suit."
In AIR 1978 Mad 270, Southern Steelment and Alloys Ltd. v. B.M. Steel, Madras, a Division Bench held that the adjudication referred to under. O. 21, R. 58 C.P.C. (as amended in 1976) is not summary and as it is the intention of Legislature under the amended Code that it should be a decision as if rendered in a regular suit resulting in an appealable decree, the fuller examination of the rights of parties has to be held after giving them adequate opportunity to place all relevant materials before the Court so that the court could ultimately decide and adjudicate on all questions including questions relating to title or interest in the property attached. In AIR 1979 Delhi 230, Harbans Lal v. Smt. Ram Jawai Devi, a Division Bench held:--
"R. 58 of Order XXI has undergone a vital change by the amending Act 104 of 1976. The amendment now envisages that the adjudication under R. 58 would be final and conclusive adjudication, and would be appealable as if it were a decree."
In AIR 1979 Kant 89, Sidramappa Rachappa Chiniwar v. Shankarlingappa Veerappa Bilagi a learned single Judge took an indentical view. In AIR 1981 Pat 292, Ram Krishna Mandal v. Baikuntha Lal Mandal a Division Bench took an identical view and observed:--
"The sub-rule (2) of R. 58 directs all questions including questions relating to the right, title or interest in the property attached arising between the parties to the proceeding or their representatives and relevant to the adjudication of the claim to be determined under this rule and a separate suit for the purpose has been barred. If the provision of appeal be held to be inapplicable in case of attachment before judgment, the losing party in such cases will be debarred from agitating his claim and challenging the order against him. The claim of title to immovable properties in other cases are subject to scrutiny by more than one court and it cannot be assumed that the legislature intended to discriminate in cases arising out of attachment before judgment.
In view of the principle laid down in the aforesaid decisions it is beyond the pale of controversy and it is the consistent judicial consensus that an order of adjudication under O. 21, R. 58 has the force of a decree and is appealable."
17. Thus, it is well settled that once the objections filed by Smt. Shakina in execution proceedings of 1963 was rejected, she had the remedy of filing a suit and for claiming relief in respect of disputed property which she did not avail. The finding recorded therein in 1964 holding the transaction to be fictitious and sham had become final and defendant-appellant continued in possession over the same. The trial court had recorded finding specific to this effect which has not been dealt with by appellate court nor the said finding has been reversed in the appeal.
18. In view of above, I find that suit filed by plaintiff for possession is not maintainable as from the pleading itself, it is clear that the subsequent transferees had been permitting the defendant to continue as a licensee which the plaintiff had failed to establish and prove. The executing court had already held the transfer of the year 1963 to be fictitious and sham. Once the finding is there and has not been challenged in any suit by person in whose favour the sale-deed was executed in 1963, the suit filed by subsequent transferee in the year 1985 is not maintainable.
19. The substantial question of law as framed stands answered i.e. in favour of appellant and against the the plaintiff-respondent.
20. The judgment and decree dated 05.03.1992 passed in Civil Appeal No. 58 of 1991 is set aside.
21. The second appeal stands allowed.
22. However, no order as to costs.
Order Date :- 21.04.2025
V.S.Singh
