Andhra Pradesh High Court - Amravati

Unknown vs The Hon'Ble Justice Dr. ... on 28 December, 2022

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

              SECOND APPEAL No.1358 of 2017

JUDGMENT:

This second appeal is filed under Section 100 C.P.C.

seeking to set aside the judgment dated 21.07.2017 of learned I

Additional District Judge, West Godavari, Eluru in A.S.No.94 of

2010, which in fact confirmed the order dated 19.01.2010 in

E.A.No.213 of 1997 in E.P.No.64 of 1997 in O.S.No.180 of 1978

of learned Additional Senior Civil Judge, Eluru, West Godavari

District.

2. To appreciate the contentions raised in this second

appeal, a brief narration of certain undisputed facts and events

is needed.

3. There was one Sri Pallaiah and he had two sons by name

Sri Satyanarayana and Sri Ramanna. It seems that after the

death of Sri Pallaiah, his two sons referred above got the

properties partitioned between themselves. It is first relevant to

notice certain facts concerning Sri Ramanna. This Sri Ramanna

had two wives and had children through both of them and name

of one of his sons is also Satyanarayana. Since already partition

took place between Ramanna and his brother Satyanarayana, it

is with reference to the properties that fell to the share of Sri

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Ramanna disputes arose on his demise. The second wife and

daughter born to her through late Ramanna filed a suit for

partition in O.S.No.180 of 1978 as against children of late

Ramanna born through his first wife. That suit was tried by

learned Additional Senior Civil Judge, Eluru. After a hot

contest, the suit was decreed for partition. Aggrieved by it, the

defendants in the said partition suit filed A.S.No.3169 of 1982

before this Court. This Court in its judgment dated 21.05.1982

allowed the appeal in part and confirmed the judgment of the

trial Court for the rest. The suit for partition contained several

items of properties listed in 'A' schedule. Out of them item

Nos.1 and 2 were found by this Court as not belonging to

Ramanna and therefore, item Nos.1 and 2 could not be the

subject matter of partition among legal heirs of Ramanna. This

Court recorded that item Nos.1 and 2 belonged to Ramanna's

brother late Satyanarayana. As against the judgment of this

Court, the defendants in the suit moved LPA No.35 of 1990 and

the same was dismissed on 15.02.1996 and as a consequence of

it, the judgment of this Court in A.S.No.3169 of 1982 was

confirmed. That decree became final. Subsequently, before the

trial Court final decree proceedings took place and thereafter

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the winning plaintiffs, with a view to obtain possession of

properties allotted to their share, filed E.P.No.64 of 1997 in

O.S.No.180 of 1978. During those execution proceedings, on

22.03.1997 the executing Court delivered all those properties

that fell to the plaintiffs/D.Hrs. and put them in possession.

During the pendency of execution proceedings or at the time of

effecting delivery of possession, no resistance came up from any

third party.

4. It is subsequent to such delivery of possession, persons

other than judgment debtors have initiated litigation before the

executing Court. These persons are wife and children of late

Satyanarayana, who is brother of late Ramanna. Altogether

there are eight individuals. Seven of them filed E.A.No.213 of

1997 in E.P.No.64 of 1997 in O.S.No.180 of 1978 and the eighth

one, since not readily available, was arrayed as respondent

No.3. The said execution application as 213 of 1997 was filed

under Order XXI Rules 99 and 101 C.P.C. wherein they sought

to set aside the delivery proceedings to the extent of Ac.0.54

cents in item No.4 and Ac.1.00 cents in item No.6 of the E.P.

schedule properties and sought for redelivery of these properties

to them stating that they were dispossessed in the execution

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proceedings. In that claim petition, the claim made by these

objectors is that after the death of late Pallaiah, his two sons got

properties partitioned and in that partition certain properties

fell to the share of Satyanarayana. They further pleaded that in

the suit filed for partition for the estate of late Ramanna, the

plaintiffs fraudulently included certain properties that fell to

Satyanarayana also. The objectors further pleaded that there

was further partition of estate of late Satyanarayana and that

partition took place among the sons of late Satyanarayana and

the above referred item Nos.4 and 6 of partition suit 'A' schedule

fell to the share of the first objector Sri M.Subba Rao, who is the

son of late Satyanarayana. It is with those averments they

stated that while they were away from the properties delivery

proceedings took place and thereby they were dispossessed of

their own properties and therefore, they shall be put back into

possession.

5. In challenge to that objection, the plaintiffs in partition

suit, who were shown as respondent Nos.1 and 2 in that

objection petition, filed their contest while respondent No.3, who

is one of the legal heirs of late Satyanarayana and respondent

Nos.4 and 5, who were defendants in partition suit, did not

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raise any objection. Both parties produced evidence both oral

and documentary. The learned executing Court on considering

the evidence on record and the arguments advanced on both

sides recorded its reasons in para Nos.16 to 18 and finally

dismissed the application.

6. The losing objectors preferred their first appeal in

A.S.No.94 of 2010 and learned I Additional District Judge after

recording that marathon arguments were advanced before him

gave his own reasons and finally concluded that the order of the

executing Court was correct and found no merit in the appeal

and dismissed it.

7. Aggrieved by these concurrent judgments, this second

appeal is preferred on the following substantial questions of law,

on which this second appeal was admitted:

(a) Whether a third party to the proceedings is precluded from filing an application under Order 21 Rules 99 and 101 C.P.C. when his properties are sought to be taken delivery in pursuance of the decree to which he is not a party?

(b) Whether the Courts below erred in holding that application under Order 21 Rules 99 to 101 C.P.C. was not maintainable merely because the applicant was aware of the suit proceedings to which he is not a party

Dr. VRKS, J S.A.No.1358 of 2017

on the ground that he failed to get himself impleaded during the pendency of the suit?

(c) Whether the entries in the Revenue Records are not sufficient to hold that a particular property belongs to the petitioner when the said property was admittedly got under a partition between the coparceners of a joint family?

8. Learned counsel on both sides submitted their

arguments.

9. Before adverting to the substantial questions of law raised

in this second appeal, it is pertinent to note the concurrent

findings of fact arrived at by both the Courts below. Both the

Courts below recorded the following findings:

10. The suit for partition was concerning the property that

late Ramanna got in his partition and the suit was among the

legal heirs of late Ramanna. That by virtue of the judgment of

the Hon'ble High Court in the first appeal as against the decree

of the trial Court, item Nos.1 and 2 of plaint 'A' schedule were

found not belonging to the estate of Ramanna, but they were

belonging to the share of Satyanarayana. Therefore, they were

omitted from partition. That judgment became final. Thus, as

per the record that was available to the Court it was only item

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Nos.1 and 2 of plaint 'A' schedule that belonged to late

Satyanarayana. That item Nos.1 and 2 were not touched in the

execution proceedings. The claim of the objectors was about

item Nos.4 and 6 of plaint 'A' schedule. Since the objectors

claim that they originally fell to the share of late Satyanarayana

and thereafter they fell to the share of first claimant Sri Subba

Rao it was for the objectors to establish that. After analysis of

evidence, the executing Court recorded that objectors failed to

show that item Nos.4 and 6 of plaint 'A' schedule ever fell to the

share of late Satyanarayana. The further finding was that there

was no material on record indicating partition of properties

among legal heirs of Satyanarayana and that the material

produced did not indicate possession of item Nos.4 and 6 by the

first claimant Subba Rao. Thus, on facts it gave a finding that

the allegation of the objectors that the properties of late

Satyanarayana were part of the partition decree was found

incorrect. Since they failed to establish their title or interest,

the executing Court refused to concede to the prayer and

upheld the possession that was granted to the plaintiffs/decree

holders in the execution proceedings. At para No.18 of its

judgment, the learned trial Court made a mention that the suit

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has been pending since the year 1978 and all these objectors

are members of the families of the brothers and in fact

defendants in the suit were able to show item Nos.1 and 2

belonged to late Satyanarayana and therefore one could not say

that these claimants were not aware of this litigation and they

never made an attempt to seek their impleadment in the suit or

at least in the final decree proceedings or at least during

execution proceedings or at least at the time of delivery of

possession. All these findings based on evidence were reverified

in the first appeal by the learned I Additional District Judge and

after making his own analysis he approved all those findings.

These are the concurrent findings on facts. Before this Court

there has been no argument about any perversity in finding of

facts by both the Courts below. Therefore, in this second appeal

this Court does not travel beyond the facts that are recorded as

established.

11. At para No.18 of its judgment, the executing Court made

a mention that these objectors did not make any objection or

raise any obstruction at the time of delivery. At para No.15 of

its judgment, the executing Court recorded that only on the

disputes that arise between the parties to the proceedings a

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decision can be rendered, but the objectors since claiming right

and title over the properties, Order XXI Rule 101 C.P.C. is not

applicable. The learned I Additional District Judge, while

dealing with the first appeal, mentioned at more than one place

that he is able to see the collusion between defendants in the

suit and these objectors and these objectors are only tools in his

hand and after delivery proceedings took place closing the

partition issues, this new round of litigation was brought into

existence to prolong the issues. The two legal observations

made by the executing Court, which are referred earlier, were

also considered and the first appellate Court approved those

findings. It is only those concurrent approval on questions of

law, this second appeal has emerged and the substantial

questions of law were framed.

12. Point Nos.(a) and (b):

(a) Whether a third party to the proceedings is precluded from filing an application under Order 21 Rules 99 and 101 C.P.C. when his properties are sought to be taken delivery in pursuance of the decree to which he is not a party?

(b) Whether the Courts below erred in holding that application under Order 21 Rules 99 to 101 C.P.C. was not maintainable merely because the applicant is aware

Dr. VRKS, J S.A.No.1358 of 2017

of the suit proceedings to which he is not a party on the ground that he failed to get himself impleaded during the pendency of the suit?

Straightaway they can be answered in favour of the

appellant. The reasons are as below:

The fact of the matter is that after delivery of possession

the objectors have come into picture. During the course of

delivery proceedings no objections were raised. On an

assumption that the appellant/1st objector was in legal

possession of item Nos.4 and 6 of plaint 'A' schedule properties,

this Court shall first address the legal questions. A decree

holder, after obtaining a decree when he seeks execution, could

find resistance from the judgment debtor or persons claiming

through judgment debtor. We are now not concerned with that.

The decree holder may also encounter difficulties from third

parties to the litigation. Viewed from the stand point of third

parties, it becomes a surprise to them that without their

knowledge and participation in legal proceedings the property

that has been in their possession is under the threat of

dispossession or they may be dispossessed. Thus, without any

positive act on their part they may loose their possession. To

facilitate expeditious remedy for them and to avoid further

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troubles for decree holder, Code of Civil Procedure chalked out a

remedy in the form of an application under Order XXI Rule 99

C.P.C. This provision comes into operation only when

objections came from people, who are other than judgment

debtors. This provision operates after dispossession. The

appellant herein is not judgment debtor for the partition suit

and his claim is that he was dispossessed from certain items of

property, which he believed that he is the rightful owner and he

is in rightful possession. Precisely that situation is covered by

Order XXI Rule 99 C.P.C. Once such an application comes, it

has to be entertained and the executing Court in terms of Order

XXI Rule 100 C.P.C. shall determine the questions that come up

between parties and decide them. What questions could be

decided between them is provided in Order XXI Rule 101 C.P.C.

The order that is finally passed is considered as a decree

because of Order XXI Rule 103 C.P.C. All the ingredients

mentioned in Order XXI Rule 99 C.P.C. are available for the

appellant. Therefore, he was fully entitled to make his objection

after he was legally stated to have been dispossessed from

property. Though the decree under execution was out of a

partition of properties, still the objection raised by another

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branch of successors it is certainly maintainable under Order

XXI Rule 99 C.P.C. since they were not parties to the partition

suit. The fact that when the property was delivered by the

executing Court to the winning plaintiffs, they did not raise any

resistance is no ground that preempt them from making any

objection since it is only after dispossession the operation of

Order XXI Rule 99 C.P.C. emerges. That there is collusion

between losing defendants and these objectors is a matter of

appreciation of evidence and has no legal bearing while

answering the question whether third parties to the decree

could maintain an application under Order XXI Rule 99 C.P.C.

or not?

13. Going by the preliminary decree, final decree and

execution proceedings one could only assume that till the time

of that decree, the properties were in joint possession of parties

to that partition suit and those properties were not in

possession of others. It was because of that the delivery

proceedings took place before the executing Court between the

parties to the decree. Thus, winning plaintiffs obtained

possession from the losing defendants. In that view of the

matter, these objectors claiming possession and dispossession

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were required to establish before the executing Court that they

were in possession. In terms of Order XXI Rule 101 C.P.C. they

were permitted to prove their title and interest and on such

proof, it could be concluded that they were deemed to be in

possession. If they were deemed to be in possession and not in

actual physical possession on the date of delivery, even then the

rightful objector claimant could seek recourse to Order XXI Rule

99 C.P.C. as could be seen from the ratio laid down by their

Lordships in Ashan Devi v. Phulwasi Devi1. Therefore,

maintainability of the proceedings before the executing Court by

the appellant is strictly in accordance with law. Therefore, the

contrary findings of both the Courts below are set-aside and

both the points are answered in favour of the appellant and

against the respondents holding that on both the points both

the Courts below committed error.

14. Point No.(c):

(c) Whether the entries in the Revenue Records are not sufficient to hold that a particular property belongs to the petitioner when the said property was admittedly got

(2003) 12 SCC 219

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under a partition between the coparceners of a joint family?

In this second appeal, appellant was required to establish

that plaint item Nos.4 and 6 of the plaint 'A' schedule belonged

to his predecessor in interest late Satyanarayana and they are

either held jointly by all the objectors and the 3rd respondent

together or that they fell to the share of appellant Sri Subba Rao

in this second appeal. All these are matters of fact. The

concurrent findings of both the Courts below clearly show that

the appellant absolutely failed to show either title or possession.

Thus, on facts he failed to make out his claim. This Court also

perused the entire judgments of both the Courts below and

could not find any perversity in them. Nothing particularly

argued on facts before this Court. It is in these circumstances,