[Cites 12, Cited by 0]
Chattisgarh High Court
Komalchand Jain vs Madanlal Gupta on 18 March, 2026
1
2026:CGHC:12837
Digitally
NAFR
signed by
JYOTI
JYOTI SHARMA
SHARMA Date:
HIGH COURT OF CHHATTISGARH AT BILASPUR
2026.03.18
17:19:37
+0530
Judgment reserved on 16-03-2026
Judgment delivered on 18-03-2026
SA No. 559 of 2016
Komalchand Jain S/o Hukumchand Jain, Aged About 75 Years R/o
Village Gaurela, Police Station Pendra Road, Tahsil Pendra Road,
District Bilaspur, Chhattisgarh, Chhattisgarh
... Appellant(s)
versus
Madanlal Gupta S/o Late Gangan Prasad Gupta, Aged About 78
Years R/o Village Gaurela, Police Station Pendra Road, Tahsil
Pendra Road, District Bilaspur, Chhattisgarh, Chhattisgarh
... Respondent(s)
For Appellant(s) : Mr. Manoj Paranjpe, Senior Advocate
along with Mr. Sandeep Patel,
Advocate
For Respondent : None, despite service of notice.
Hon'ble Shri Bibhu Datta Guru, Judge
C A V Judgment
1. The appellant /defendant/ judgment debtor has preferred this
second appeal under Section 100 of the Code of Civil
Procedure, 1908 (for brevity CPC) against the order dated
28.07.2016 passed by the Learned Additional District Judge,
Pendra Road, Bilaspur in Misc. Civil Appeal No. 13/2015
(Komalchand Jain Vs. Madanlal Gupta) arising out of the
order dated 01.10.2015 passed by the learned Civil Judge
Class-I, Pendra Road, in Execution case No.220-A/1986
(Madanlal Gupta v Komalchand Jain). For the sake of
convenience, the parties would be referred as per their status
before the learned trial Court.
2. (a) The respondent/plaintiff Madan Lal Gupta instituted a
suit for declaration, mandatory injunction and possession
pleading inter alia that the original owner of the land, namely
Lal Amol Singh, had sold a part of the property to the
defendant by registered sale deed dated 27.04.1974. It was
further pleaded that the remaining part of the property, which
is the subject matter of the present suit, was purchased by the
plaintiff from the widows, sons and daughters of Amol Singh
by registered sale deed dated 25.06.1975 and thereafter the
plaintiff was settled in possession of the said land. It was
further averred that the defendant encroached upon certain
portions of the land belonging to the plaintiff and despite
service of legal notice continued to raise construction over the
same. It was also pleaded that another portion of the suit land
was subsequently sold to the plaintiff by the legal heirs of
Amol Singh by registered sale deed dated 03.04.1976.
According to the plaintiff, when he started raising construction
over his portion of the land, the defendant caused obstruction
and interference, whereupon the plaintiff lodged a report with
the police in the month of April, 1976.
(b) It was further pleaded that the defendant initiated
proceedings under Section 145 of the Code of Criminal
Procedure, pursuant to which an ex parte order of attachment
was passed on 27.05.1976 in Criminal Case No. 91/1976 by
the Court of Sub-Divisional Magistrate, Bilaspur, and
consequently the property remained in custodia legis. It was
also pleaded that by order dated 26.09.1978 the Magistrate
directed the parties to approach the Civil Court and further
directed that the property shall remain under attachment until
an appropriate order is passed by the Civil Court. The plaintiff
further alleged that the defendant had made interpolation in
his sale deed dated 27.04.1974, in relation to which an FIR
bearing Crime No. 107/1976 under Sections 420 and 465 of
the Indian Penal Code was registered against the defendant.
(c) On the basis of the aforesaid pleadings, the plaintiff
sought the following reliefs in the plaint:
अ. It be declared that the plaintiff is the owner
of 40 feet x 80 feet land in the area च, छ, म च in the
plaint map and that because of the interpolation
made by the defendant in his sale-deed dated 27-
4-1974 with respect to the length and width of the
area purchased by him, the plaintiff's right over
the area अ. क. ख. ग. म. ज is not affected and in the
alternative the plaintiff be delivered possession
from the defendant.
आ. It be declared that the plaintiff is entitled to
recover possession of the land under attachment
in the Court of Sub-Divisional Magistrate in
Criminal Case No.91/1976 on the area अ, ज, छ. प.
ट. द. न, ख, फ.
इ. Construction raised by the defendant on the
area छ. प. ट. द. न. ग. म in the plaint map be
demolished and the defendant be directed to
deliver possession of the said area to the plaintiff.
(d) By way of amendment in the plaint pursuant to the order
dated 26.11.1999 passed by the learned Trial Court, the relief
of possession by way of issuance of mandatory injunction
was added in prayer clause No. 3. Thereafter, by another
order dated 04.05.2000 passed by the learned Trial Court, the
plaintiff's prayer for amendment seeking addition of the relief
of possession at the end of the relief clause was also
incorporated.
3. The defendant, in his written statement, denied the
allegations made in the plaint and stated that he had not
encroached upon any land belonging to the plaintiff. It was
pleaded that the defendant had purchased land measuring
140 feet × 180 feet by registered sale deed dated 27.04.1974
and, therefore, nothing remained with the original owner to
alienate thereafter. On this basis, it was contended that the
subsequent sale of land from the same khasra made by the
legal heirs of Amol Singh in favour of the plaintiff by registered
sale deed dated 25.06.1975 is illegal and the plaintiff did not
acquire any right, title or interest over the suit land. It was
further pleaded that Amol Singh and his heirs belonged to a
tribal community and, therefore, they were not competent to
transfer the property in favour of a non-tribal. While admitting
the initiation of proceedings under Section 145 of the Code of
Criminal Procedure, the defendant stated that the said
proceedings culminated on 21.12.1983 (Ex.D-14), wherein it
was declared that the defendant was in possession of the suit
property within two months prior to the date of the preliminary
order passed by the Magistrate on 27.05.1976. It was further
stated that possession of the land was delivered to the
defendant on 12.01.1984 (Ex.D-7). By way of amendment in
the written statement, the defendant further contended that
although at the time of institution of the suit a mere suit for
declaration was maintainable, however, after possession was
ultimately delivered to the defendant, the suit for mere
declaration was no longer maintainable. It was further
contended that the relief for recovery of possession from the
defendant was sought by way of amendment in the plaint
after a lapse of about twelve years from 12.01.1984, the date
on which possession was delivered to the defendant under
the proceedings initiated under Section 145 of the Code of
Criminal Procedure, and therefore the suit is barred by
limitation.
4. The trial Court partly decreed the suit on the following
findings :-
(a) The measurement of the suit land described in the
plaint map is correct,
(b) Late Amol Singh had sold an area of 40 feet on the
north-sought direction upto the house of Badri Prasad in
the east-west direction and not an area of 40 feet x 80
feet to the original defendant Hukumchand Jain,
(c) The plaintiff purchased the area demarcated as अ, क,
ल, छ, फ, ब, in the plaint map by registered sale-deed
dated 25-6-1975,
(d) The defendant has encroached over the area
marked in blue colour in the plaint map.
(e) The plaintiff has legally purchased the area marked
as अ, ब, फ, छ, ल, क and ब, ज, फ, छ by registered sale-
deed dated 3-4-1976, however, purchase of the area
marked as म, ग, ल, स in favour of the plaintiff is illegal,
(f) It is not proved that the sale-deeds dated 25-6-1975
and 3-4-1976 in favour of the plaintiff are illegal and void
in view of the provisions of Section 165(6) of the
Chhattisgarh Land Revenue Code, 1959,
(g) The suit filed by the plaintiff, which was initially for
mere declaration, is maintainable,
(h) Plaintiff's suit is not barred by limitation,
(i) The defendant is not entitled to seek costs from the
plaintiff,
(j) The plaintiff is entitled to seek declaration and
possession for the land covered within the area अ,ज, ल,
क in the plaint map.
5. The learned Trial Court, while deciding Issues No. 7 and 8,
held that on the date of institution of the suit neither the
plaintiff nor the defendant was in possession of the suit land,
as the property had been attached in proceedings under
Section 145 of the Code of Criminal Procedure. In such
circumstances, since the defendant was not in a position to
deliver possession of the land to the plaintiff, it was not
necessary for the plaintiff to initially seek the relief of recovery
of possession. The Trial Court further observed that when
possession of the property was subsequently handed over to
the defendant upon conclusion of the proceedings under
Section 145 of the Code of Criminal Procedure, the plaintiff
amended the plaint and sought the relief of recovery of
possession and, therefore, the suit was maintainable. The
plea raised by the defendant with regard to limitation was also
negatived by the Trial Court on the ground that for a part of
the suit land the relief for recovery of possession had been
sought in the plaint from the very beginning, whereas for the
remaining portion, which was in custodia legis, such relief
could not have been claimed at the time of filing of the suit.
The Trial Court further observed that after possession was
delivered to the defendant, the plaintiff amended the plaint
and sought the said relief. It was also held that since the
proceedings in the suit remained in abeyance for a
substantial period due to the pendency of criminal
proceedings against the original defendant Hukumchand
Jain, the said period was liable to be excluded, as specifically
observed by the Trial Court in its order dated 05.05.2000.
Accordingly, it was held that the suit was not barred by
limitation. The Trial Court further observed that the Court has
the power to grant an opportunity to the plaintiff to seek
recovery of possession if, during the pendency of the suit, the
plaintiff is dispossessed from the suit property. In paragraph
58 of the judgment, the Trial Court also noted that the
proceedings in the suit remained in abeyance from
25.06.1984 to 24.06.1999.
6. Against the said judgment and decree passed by the learned
trial Court, the defendant preferred an appeal before the
learned First Appellate Court, who upon hearing the appeal
and after re-appreciating the evidence available on record,
partly allowed the appeal and modified the judgment and
decree passed by the learned Trial Court. It was directed that
the defendant shall hand over vacant possession of the land
demarcated by the boundaries अ, ज, छ, प, ह, द, ल, क to the
plaintiff. However, the learned First Appellate Court held that
the defendant had not encroached upon the portions of land
marked as प, छ, ह, द and म, ग, द, न and, to that extent, the
decree of the Trial Court was modified.
7. The said judgment and decree were challenged before this
Court by both the plaintiff and the defendant by filing Second
Appeal No. 557 of 2005 (Komalchand Jain v Madan Lal
Gupta) and Second Appeal No. 215 of 2006 (Madan Lal
Gupta v Komalchand Jain), which were dismissed by
common judgment dated 16.10.2010. Thereafter, the matter
travelled upto the Supreme Court by filing SLP No.
29689/2010 (Komalchand Jain v Madan Lal Gupta), which
was also dismissed by order dated 29.10.2010.
8. Subsequently in compliance of the judgment and decree
passed by the learned Trial court, the execution proceedings
have been initiated and the possession of the property was
handed over to the decree holder which is apparent from the
Majkuri report (Annexure P-5). Thereafter, the appellant by
raising a ground that, the decree holder has obtained the
possession of the land in excess of the land mentioned in the
decree, & filed an application for appointment of
Commissioner for spot inspection under Order 26 Rule 9 of
the CPC which was rejected by the Executing Court vide
order dated 26.09.2011. Thereafter, appellant preferred an
application under Section 47 of CPC , which was also
rejected by the trial Court and the said order was challenged
in Civil Revision bearing No. 55/2013 (Komal Chand Jain v
Madan Lal Gupta). Though there is a pleading in the instant
appeal at para 5 that the said revision is pending
consideration, however, on verification it came to notice of
this Court that the said revision was dismissed on 5-2-2016
for want of prosecution.
9. In the meanwhile, the appellant/ judgment debtor had filed an
application under Order XXI Rules 98, 99, 100 and 101 read
with Section 151 of the Code of Civil Procedure before the
Executing Court. The said application was filed inter alia on
the ground that the respondent/decree holder, in the course
of execution of the decree, had obtained possession of the
property belonging to the appellant. However, the Executing
Court rejected the said application vide order dated
01.10.2015. Thereagainst, the appellant preferred an appeal
before the learned Additional District Judge challenging the
said order. Due to inadvertence, the provisions of Order XLIII
Rule 1 CPC were mentioned in the memo of appeal instead of
Section 96 of the Code of Civil Procedure. The said mistake
was bona fide, and in fact the learned District Judge
entertained the appeal under Section 96 CPC as there is no
provision for filing a miscellaneous appeal against such order.
The learned District Judge dismissed the said appeal by the
order impugned dated 28.07.2016 on merits. Thus, this
appeal by the judgment debtor.
10. Learned counsel for the appellant submits that both the
Courts have committed a substantial error of law in
dismissing the objections filed by the appellant under Order
XXI Rules 97, 98, 99, 100 and 101 of the Code of Civil
Procedure in a summary manner without recording any
evidence. It is contended that the objections raised by the
appellant were dismissed without framing issues, without
recording evidence and without granting proper opportunity of
hearing. Learned counsel submits that an application under
Order XXI Rules 97, 98, 99, 100 and 101 of the Code of Civil
Procedure cannot be rejected summarily and must be
decided only after following the settled procedure, including
framing of issues, recording of evidence and hearing the
parties. It is therefore submitted that the orders passed by the
Courts are illegal and unsustainable in the eyes of law and
are liable to be set aside. He further placed his reliance upon
the decision rendered by the Supreme Court in the matter of
Jini Dhanrajgir and Anr. Vs. Shibu Mathew and Anr.
reported in (2023) 20 SCC 76 and upon a decision
renderened by the High Court of Madhya Pradesh in the
matter of Ramkumar and Anr. Vs. Pankaj & Ors 2010
Lawsuit(MP) 921.
11. Despite service of notice, the respondent/decree holder
has chosen not to appear before this Court.
12. I have heard learned counsel for the appellant and perused
the records.
13. From the record it appears that during the course of execution
proceedings the appellant had earlier filed an application
under Order XXVI Rule 9 of the Code of Civil Procedure
seeking appointment of a Commissioner for spot inspection.
On the said application, the Executing Court had already
called for a report from the Revenue Inspector, Gaurela and
on the basis of the said report, the application under Order
XXI Rule 98, 99, 100 & 101 read with Section 151 of the CPC
had been decided. The Revenue Inspector, Gaurela, along
with the Halka Patwari, had inspected the disputed land
bearing Khasra No. 327 of village Gaurela in the presence of
both the parties, village Kotwar and other villagers and
thereafter submitted a report dated 12.02.2011 along with a
map showing the present possession of the parties over the
disputed land.
14. In the said report it was not mentioned that the decree
holder had taken possession of any land in violation of the
decree, nor was it found that the decree holder had taken
possession over the portion marked as प, छ, ह, द and म, ग, द, न
belonging to the appellant. Despite the said report, the
appellant again moved an application seeking appointment of
a Commissioner for the same purpose, which was rightly
rejected by the Executing Court.
15. At this juncture it would be appropriate to quote Order XXI
Rules 98, 99, 100 and 101 read with Section 151 of the CPC:-
XXI Execution of decrees and orders (payment under
decree)
xxx xxx xxx
98. Orders after adjudication-(1) Upon the determination
of the questions referred to in rule 101, the Court shall, in
accordance with such determination and subject to the
provisions of sub-rule (2),-
(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.
(2) Where, 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.
99. Dispossession by by decree-holder or purchaser. -
(1) Where any person other than the judgment-debtor is
dispossessed of immovable property by the holder or a
decree for the possession of such property or, where such
property has been sold in execution of a decree, by the
purchaser thereof, he make an application to the Court
complaining of such dispossession.
(2) Where any such application is made, the Court shall
proceed to adjudicate upon the application in accordance
with the provisions herein contained.]
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
[101. Question to be determined. All questions (including
questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an
application under rule 97 or rule 99 or their representatives,
and relevant to the adjudication of the application, shall be
determined by the Court dealing with the application, and
not by a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any
other law for the time being in force, be deemed to have
jurisdiction to decide such questions.]
16. The gist of the aforesaid said provisions broadly provide that
where resistance or obstruction is caused in execution of a
decree for possession, or where any person other than the
judgment debtor complains of dispossession by the decree
holder or purchaser in execution, such person may approach
the Executing Court by filing an appropriate application. Upon
such application being filed, the Executing Court is required to
adjudicate all questions arising between the parties to the
proceeding, including questions relating to right, title or
interest in the property, and thereafter pass appropriate orders
in accordance with such determination.
17. From the material available on record, it is evident that the
land from which the appellant claims to have been
dispossessed does not form part of the property covered
under the execution proceedings and the same is also not
reflected in the execution map. In terms of Order XXI Rule 99
of the Code of Civil Procedure, an application complaining of
dispossession is maintainable only where a person other than
the judgment debtor is dispossessed of immovable property
by the decree holder or purchaser in execution of a decree for
possession of such property. In the present case, since the
land alleged to have been dispossessed is not the land
covered by the decree or the execution proceedings, the
application filed by the appellant under Order XXI Rules 98,
99, 100 and 101 read with Section 151 of the Code of Civil
Procedure was not maintainable & the provisions of the Order
XXI Rule 98, 99, 100 & 101 read with Section 151 of the CPC
was not at all applicable into the grievance of the appellant
herein.
18. It is further observed that under Order XXI Rules 100 and 101
of the Code of Civil Procedure, the Court is required to
adjudicate questions relating to possession, right, title or
interest in the property only when such questions arise
between the parties in respect of the property forming the
subject matter of execution. Since the appellant's grievance
pertains to land which is not part of the decree or the execution
proceedings, such claim cannot be adjudicated in the present
execution proceedings. If the appellant is of the view that the
decree holder has taken possession of land in excess of what
has been decreed, it would be open for him to pursue such
grievance by initiating appropriate independent civil
proceedings before the competent Court.
19. The decision of the Supreme Court in Jini Dhanrajgir
(supra) as also the decision of High court of Madhya Pradesh
in Rajkumar (supra), cited by the appellant, are only
regarding the procedure how to deal with the application under
Order XXI Rule 98, 99, 100 & 101 of the CPC. The said
decisions are not relevant herein because in the preceding
paragraphs of this judgment, this court has held that the
provisions of Order XXI Rule 98, 99, 100 & 101 of the CPC will
not attract in the present case.
20. In such circumstances, the objections raised by the
appellant/judgment debtor appear to be nothing but an
attempt to reopen issues which have already been attained
finality under the decree. It is well settled that the Executing
Court cannot travel beyond the decree, and is bound to
execute the decree as it stands. Therefore, the Executing
Court has not committed any illegality in rejecting the
application filed by the appellant under Order XXI Rules 98,
99, 100 and 101 read with Section 151 of the Code of Civil
Procedure vide order dated 01.10.2015, and the learned First
Appellate Court has rightly affirmed the said order. The
findings recorded by both the Courts are based on proper
appreciation of the material available on record and do not
suffer from any perversity so as to warrant interference in this
second appeal. Even no substantial question of law arises for
consideration in the present second appeal.
21. Accordingly, the second appeal, being devoid of merit, is
dismissed. However, liberty is granted to the appellant/
judgment debtor to avail such remedy as may be available to
him in accordance with law before the appropriate forum, if so
advised. Sd/-
(Bibhu Datta Guru)
Judge
Jyoti/ Gowri
