Bombay High Court

Vithabai vs Daljitsingh on 13 October, 2010

Bench: S.V. Gangapurwala

                                      1




                                                                        
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                        BENCH AT AURANGABAD




                                                
                   SECOND APPEAL NO. 438 OF 2010




                                               
     1.     Vithabai W/o Sayanna Battin,
            Age : 60 Years, Occu. : Business,
            R/o Gavalipura, Nanded.




                                   
     2.     Venkatrao S/o Sadashivrao Deshmukh,
                      
            Age : 55 Years, Occu. : Business,
            R/o Govardhan Ghat Road, Nanded.
                     
     3.     Vijaysingh S/o Chandelsingh Pardeshi,
            Age : 35 Years, Occu. : Business,
            R/o Govardhan Ghat Road, Nanded.             ..       Appellants
      


                  VERSUS
   



     1.     Daljitsingh S/o Dilipsingh Ramgadiya,
            Age : 45 Years, Occu. : Business,





            R/o Dilipsingh Colony, Vazirabad,
            Nanded.

     2.     Nanded Waghala City Municipal Council,





            Through it's Commissioner,
            Nanded.                               ..      Respondents


     Shri R. R. Mantri, Advocate for Appellants.
     Shri A. S. Bajaj, Advocate for the Respondent No. 1.
     Shri M. V. Deshpande, Advocate for the Respondent No. 2.




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                                          2




                                                                           
                                     WITH
                  SECOND APPEAL NO. 462 OF 2010




                                                  
          Abdul Sattar Abdul Hafiz,
          Age : 50 Years, Occu. : Editor,




                                                 
          Daily Nagushe News Paper,
          R/o Govardhan Ghat Road, Nanded.                  ..       Appellant

                VERSUS




                                     
     1.
                      
          Daljitsingh S/o Dilipsingh Ramgadiya,
          Age : 45 Years, Occu. : Business,
          R/o Dilipsingh Colony, Vazirabad,
                     
          Nanded.

     2.   Nanded Waghala City Municipal Council,
      


          Through it's Commissioner,
          Nanded.                               ..      Respondents
   



     Shri K. C. Sant, Advocate for the Appellant.
     Shri A. S. Bajaj, Advocate for the Respondent No. 1 in both.





     Shri M. V. Deshpande, Advocate for the Respondent No. 2.


                       CORAM : S. V. GANGAPURWALA, J.





                       DATE     : 13TH OCTOBER, 2010.


     JUDGMENT :

. The present respondent No. 1 had instituted R.C.S. No.

422/1988 for declaration of ownership, possession and mandetory

injunction in respect of land admeasuring 65 x 40 feet of survey

No. 21/23 and as per the boundaries detailed in the plaint. The

said suit was instituted by the present respondent No. 1 against

the respondent No. 2/Municipal Council. The said suit came to

be decreed and the defendant/Municipal Council was directed to

demolish the construction carried out by it on the suit site. The

Municipal Council preferred an appeal before the District Court,

Nanded. The District Court Nanded dismissed the said appeal.

Aggrieved thereby, the Municipal Council preferred second

appeal before the High Court. The said second appeal bearing S.

A. No. 416/1995 was also dismissed.

2. The respondent No. 1/decree holder thereafter instituted

execution proceedings bearing Regular Darkhast No. 148/2008

against the present respondent No. 2/Judgment debtor. During

the pendency of the said execution proceeding the present

appellants/objection petitioners filed an objection petition

purportedly U/O XXI Rule 97 of the Code of Civil Procedure.

Inter alia contended that the execution petition is filed beyond

the period of limitation, so also their possession is peaceful,

continuous and hostile to the decree holder, since 30th

September, 1989. As such, they have become owners by adverse

possession. It is their case that they have been lawfully inducted

in possession of the suit premises on 30th September, 1989 by the

present respondent No. 2/Judgment Debtor by executing lease

deed. According to them, they are running the shops under the

license granted by the Competent Authority in a peaceful

manner. The said objection petition was resisted by the decree

holder. The Jt. Civil Judge Junior Division, Nanded, vide its

order dated 28th January, 2010 rejected the objection petition.

The appellants aggrieved by the said judgment and order

preferred Regular Civil Appeal No. 17/2010 before the District

Court, Nanded. The Principal District Judge, Nanded vide its

judgment and order dated 01st July, 2010 dismissed the appeal.

Aggrieved by the said judgment, the objection petitioners have

filed the present second appeal.

3. Shri R. R. Mantri, learned counsel for appellants in Second

Appeal No. 438 of 2010 advanced the arguments on behalf of

appellants. Shri Sant, learned counsel for the appellant in

Second Appeal No. 462/2010 adopted the arguments of Shri

Mantri.

4. Shri R. R. Mantri, learned counsel for appellants with all

his persuasive skill canvased following propositions :

I. The decree holder himself is not sure about his

property. Perusal of the suit shows that the plaintiff

himself was not aware as to whether his property is

situated in survey No. 21 or 23. The property is not

identifiable. In such circumstances, execution could not

have proceeded further. The same was not subject matter

of the suit, as such cannot be executed.

II. The execution proceedings filed by the decree holder

is beyond the scope of the decree, though the decree holder

had prayed for relief of possession, the Court has not

granted the said relief and has only granted the relief of

mandatory injunction directing the Judgement Debtor to

demolish the said shops. As such, no warrant for

possession can be issued.

III. The Courts below have not taken into consideration

the contentions raised by appellants nor have considered

the application filed by appellants for measurement.

IV. The lower Appellate Court has relied on Rule 102 of

Order XXI of the Code of Civil Procedure, which is deleted

by the Bombay High Court Amendment on 01.10.1983 and

as such reliance placed by the Principal District Judge,

while rejecting the objection petition invoking Rule 102 of

Order XXI is illegal.

V. If the stand of the decree holder is accepted about the

acquisition of the said property by the Municipal Council,

then nothing remains for execution and the appellants were

inducted in possession as a lessee of Municipal Council,

then they would remain lessee of the Municipal Council.

5. Per contra Shri Bajaj, learned counsel for the respondent

No. 1/decree holder contended :

I. The appellants are transferee pendente-lite and as

such they do not have any right or authority to file an

objection petition U/O XXI Rule 97 of the Code of Civil

Procedure.

II. The Judgement Debtor had taken the stand in the

suit that the suit property is not a part of Survey No. 21/23,

but it is part of Survey No. 25. The said contention of the

Judgment Debtor was rejected upto the High Court. Now

the objection petitioners being transferee pendente-lite

cannot raise the same issue.

III. The High Court have also considered that the suit

was for possession and a decree for mandatory injunction

was passed against the judgment debtor to demolish the

construction made over the suit property which necessarily

means that after demolition the possession would be of the

decree holder.

IV. The scope of objection petition being U/O XXI Rule 97

of the Code of the Civil Procedure is very limited. Even the

objectors have admitted that they are transferee pendente-

lite, then it is not necessary to determine a question raised

by them, for the said purpose relied on the judgment of the

Apex Court in the case of Silverline Forum Pvt. Ltd. v.

Rajiv Trust and another reported in AIR 1998

Supreme Court 1754 (1). So also the decision of the

learned Single Judge of this Court in a case of Jagdish

Motilal Joshi Vs. Chandrapal Tulsiram Bhola and

others reported in 2007 (Supp.) Bom. C. R. 198.

6. I have heard the learned counsels for respective parties at

length and with their assistance has gone through the judgment

of the Courts below. Before adverting to the arguments advanced

by the learned counsels, it would be appropriate to reproduce the

relevant provisions necessary for decision :

Order XXI [98. Orders after adjudication.-- (1)............

(a)..............

(b).............

(2).......................

High Court Amendment - [Bombay]. -

Substitute the following sub-rule (2), for the existing

sub-rule (2) of rule 98 in Order XXI:-

"(2) Whether upon such determination, the Court is satisfied that the resistance or obstruction was

occasioned without any just cause by the judgment-

debtor or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the

applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. The Court may

also order the person or persons whom it holds responsible for such resistance or obstruction to pay

jointly or severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses

caused to him obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree." --(1-10-1983).

ig Order XXI [100. Order to be passed upon application complaining of dispossession.-- Upon the

determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,---

(a) make an order allowing the application and directing that the applicant be put into the

possession of the property or dismissing the application; or

(b) pass such other order as, in the

circumstances of the case, it may deem fit.]

High Court Amendment--[Bombay]-- Add the following proviso to rule 100:--

"Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above."-- (01-10-1983).

Order XXI [102. Rules not applicable to transferee

pendente lite.-- Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a

person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Explanation.--In this rule, "transfer" includes a transfer by operation of law.]

High Court Amendment--[Bombay]--Delete rule

102.--(01-10-1983).

TRANSFER OF PROPERTY ACT

52. Transfer of property pending suit relating thereto.--- During the pendency in any Court having authority within the limits of India

excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable

property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed

to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the

suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the

expiration of any period of limitation prescribed for

the execution thereof by any law for the time being in force.

07. It would also be relevant to refer to some of the objections

raised in the objection petition :

4) That, on the strength of lawful possession without any interruption over the suit site since long back the objection petitioners are certainly entitled

for ownership as objection petitioners became adverse and hostiling title of the present respondent, completely as a lawful possessors after completion of statutory prescribed period enjoyed by the objection

petitioners without any interruption over the premises as per the possession, therefore, from the date of possession which was inducted by then Municipal Council, this fact and nature of possession was within the knowledge of true owner i. e. present respondent, therefore objection of objection petitioners for declaration of ownership on the basis of adverse possession is deserved to be allowed with

costs.

5) That, right of then Municipal Council over the property is extinguished by operation of law by Judgment and decree passed in R.C.S. No. 422/1988

on dated 3-4-1989 and confirmed upto High court, Bench Aurangabad. The decree under execution is required to be executed within 12 years from date of decree, but execution filed beyond limitation as per

the Limitation Act, therefore, decree is not

executable. Therefore title of respondent is hostile by present objection petitioner as a right of ownership acquired on the strength of adverse

possession after completion of prescribed statutory period as long standing continuous lawful possession which speaks from documentary evidence that too by

public documents, therefore, the objection of the objection petitioner is required to be allowed with

full costs.

6) That, the objection petitioners exercising right

over the suit property exclusively as a owner openly and to the knowledge of present respondent, the objection petitioners has established the case of adverse possession against the respondent, on the

basis of document and fact, therefore, possession of the objection petitioner is required to be protected by allowing present objection with full cost.

7) That, the objection petitioners since 30-9-89 actual physical possession totally peaceful, continuous and hostile to the true owner i. e. present respondent. The person Kashinathsingh s/o

Gangusingh Rawat then Estate Manager of N. M. C. Nanded deposed before the court in R.C.S. No.

422/1988 on behalf of then Municipal Council and same person executed the possession receipt on dated 30.9.1989 in favour of objection petitioner, as

proceeding and decree within the knowledge, therefore considering the legal and factual aspects and issue involved as since 19 years are lapsed. The objection petitioner deposited the property tax as

well as other allied taxes in the office of council,

therefore, considering this factual aspect the objection of objection petitioners is required to be allowed with costs.

08. Going though the objection petition filed by the present

appellants it is manifest that the appellants admitted that they

have been inducted in possession pursuant to a lease deed

executed by the judgment debtor/Municipal council in the year

1989. The suit was filed in the year 1988. In the objection

petition the appellants did not raise the dispute regarding

identity of the property. On the contrary going through the

recitals of the objection petition the appellants have categorically

pleaded that they have been inducted in the suit premises in the

year 1989 and they have become the owners by adverse

possession. Now, in such circumstances as the appellants are

transferee pendente-lite, the objection of the appellants cannot be

considered.

09. It is only if the proceedings between the decree holder and

the judgment debtor are collusive then in such circumstances

only the transferee pendente-lite would get some right to agitate.

In the present case, the suit was filed in the year 1988. The

Municipal Council contested the suit by adducing evidence

claimed their ownership, then even constructed the shops on the

suit premises during the pendency of the suit. After the decree

was passed against them, they preferred appeal. After the

appeal was dismissed on merits, the Municipal Council preferred

second appeal which was admitted by this Court and

subsequently dismissed in the year 2008. Even the judgment

delivered by this Court in the second appeal filed by the

Municipal Council shows that the matter was contested on

merits. Taking into account this aspect, it is clear that the

litigation between the decree holder and the judgment debtor

was not collusive in nature. On the contrary it was contested

and both the parties had led their evidence. Even decree passed

by the Trial Court was challenged in appeal and thereafter in

second appeal before this Court.

10. Once it is found that the decree obtained by the decree

holder against the judgment debtor was not collusive, then

taking into account the provisions of Order XXI, the moot

question is whether the objection petitioners would get any right

to raise the objection U/O XXI Rule 97 being a transferee

pendente-lite.

11.

No doubt Mr. Mantri is correct in arguing that the lower

appellate court could not have relied on Rule 102 of Order XXI, as

the same has been deleted in the year 1983 by the Bombay High

Court, but when the Bombay High Court by amendment deleted

Rule 102 it had incorporated amendment in Rule 98 of Order

XXI, so also by an amendment incorporated a proviso to Rule 100

of Order XXI.

12. Bare perusal of the Sub Rule 2 of Rule 98 as amended by

the Bombay High Court and proviso to Rule 100 of Order XXI as

added by the Bombay High Court, it is clear that if on

determination it is found that the objection petitioner is

transferee pendente-lite, then the objection petition needs to be

rejected. The phrasology used in the said proviso of Order XXI

Rule 100, so also of Sub Rule 2 of Rule 98 of Order XXI as

amended by Bombay High Court is succinct and does not admit

on any other interpretation. If it is found that an application is

made by the person to whom the judgment debtor has

transferred the property after institution of the suit in which the

decree was passed, the Court shall dismiss the application.

13. The objection petitioners/present appellants had raised an

objection to the execution admitting that they have been put in

possession pursuant to a lease in the year 1989 i. e. after

institution of the suit. They nowhere raised the dispute

regarding the identify of the property or that the shop in which

they have been put in possession in the year 1989 by the

Judgment debtor was not a part of the suit property which

subsequently they tried to raise, on the contrary raised the plea

of adverse possession. The dispute regarding the identity of the

property was raised by the judgment debtor in the suit itself.

After long draw enquiry it was held that the suit property is not

a part of survey No. 25, the same has been properly described by

the boundaries and the shops were constructed by the municipal

council after demolishing the latrine is the suit property and the

said shops were during the pendency of the suit leased out to the

objection petitioners/presnet appellants. As such, now it would

not be open for the objection petitioners to again raise the same

objection. A transferee pendente-lite is precluded from raising

such objection by virtue of the operation of the provisions of Rule

98(2) of Bombay Amendment of Order XXI and proviso to Rule

100 of Order XXI.

14. The Apex Court in a case of Silverline Forum Pvt. Ltd.

referred supra has observed in para 10 as under :

10. It is true that R. 99 of O. 21 is not available to

any person untill he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all question "arising between the parties to a

proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing Court, if

such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of

Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of

the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in

Section 52 of the Transfer of Property Act.

When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while

making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant

to the adjudication of the complaint.

The words "all questions arising between the parties to a proceeding on an application under Rule 97"

would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a

question merely because the resistor raised it. The questions which executing Court is obliged to

determine under Rule 101, must possess two adjuncts, First is that such questions should have legally arisen between the parties, and the second is,

such questions must be relevant for consideration and determination between the parties, e. g. if the obstructor admits that he is a transferee pendent lite it is not necessary to determine a question

raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the

decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, execution Court

can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result

of the adjudication contemplated in the sub-section.

15. Taking into account the factual matrix and the legal

position, the appellants being the transferee pendente-lite, it

will not be open for them to raise such an objection U/O XXI Rule

97 of the Code of Civil Procedure. Though, Rule 102 of Order

XXI as relied by the lower Appellate Court would not apply, as

same has been deleted by the amendment of the Bombay High

Court, still as per the Sub Rule 2 of Rule 98 of Order XXI and

proviso to Rule 100 of Order XXI, the appellants objection

petition would not be tenable as they are transferee pendente-

lite.

16. In the result the appeals stand dismissed.