Shri Raghunandan Sharma vs Smt. Jai Kumari (Deceased) & Anr.
2016 Latest Caselaw 6248 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RSA No. 239/2015

%                                                       27th September, 2016

SHRI RAGHUNANDAN SHARMA                           ..... Appellant
                Through: Ms. Mala Goel, Advocate.

                          versus


SMT. JAI KUMARI (DECEASED) & ANR.                             ..... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by the appellant/defendant no.1 against the

impugned Judgment of the First Appellate Court dated 7.1.2015. The First

Appellate Court by the impugned Judgment dated 7.1.2015 reversed the

Judgment of the Trial Court dated 25.8.2012 dismissing the suit, and thus has

decreed the suit filed by the respondent nos. 1(a) to 1(c)/plaintiffs for

declaration and injunction holding that the Judgment and Decree dated

17.8.1961 passed by the Civil Judge in suit no. 405/120 of 59/61, titled as Ram

Prasad Vs. Bhudev Sharma and Ors with respect to the suit property bearing

MCD no. A-122/2, Ashok Nagar, Delhi-110093, as not binding on the

respondent nos. 1(a) to 1(c)/plaintiffs. It was further declared that respondent

nos. 1(a) to 1(c)/plaintiffs had right, title and interest in the suit property by

virtue of the various documents executed in their favour dated 25.6.1985 being

the Agreement to Sell, General Power of Attorney, Will, etc. Decree for

permanent injunction was also passed in favour of respondent nos. 1(a) to

1(c)/plaintiffs restraining the appellant/defendant no.1 from interfering in the

peaceful possession of the suit property of respondent nos.1(a) to 1(c)/plaintiffs.

I may note that the suit was originally filed by one Smt. Jai Kumari who expired

pendente lite and is now therefore represented by respondent nos. 1(a) to 1(c).

2. The suit plaint shows that the plaintiff filed a suit claiming rights in

the suit property admeasuring 200 sq. yards and bearing MCD no. A-122/2,

Ashok Nagar, Delhi-110093 stating that rights of purchase in the same were

from Sh. Shish Pal Singh vide usual documentation dated 25.6.1985 being the

Agreement to Sell, Power of Attorney, Will, etc. Sh. Shish Pal Singh had

purchased the suit property from Sh. Kanta Prasad by a registered Sale Deed

dated 25.10.1971. Plaintiff claims that she was in possession of the suit

property since 1985 and that she was paying house tax since then and also that

there was an electricity connection and a water connection in her name in the

suit premises. It was pleaded that the appellant/defendant no.1 sought to

dispossess the plaintiff from the suit property in terms of the Judgment dated

17.8.1961 of the Civil Judge, but that Judgment dated 17.8.1961 was illegal and

not binding upon the plaintiff. Plaintiff also claims ownership of the suit

property on the ground of adverse possession being in continuous possession

since 1985. Hence in the suit, the following reliefs were prayed:-

"(a) That a decree for declaration may be passed in favour of Plaintiff and against the Defendants whereby it may be declared that the Judgment/Decree in suit No. 405/120 of 59/61, titled Ram Pershad V/S Bhudev Sharma & Others passed by the Court of Shri. B.K. Agnihotri PC Sub-Judge Delhi vide Judgment/Decree dt. 17-8-1961 is not binding on the Plaintiff and the same is null and void in respect of suit property which bears MCD No. A-122/2, Ashok Nagar, Delhi - 110093 as shown in Red Colour in the site plan.

(b) That a decree for declaration may be passed in favour of Plaintiff and against the Defendants whereby it may be declared that the Plaintiff is the owner/occupant of the premises which bearing MCD No. No. A-122/2, Ashok Nagar, Delhi - 110093 as shown in Red Colour in the site plan by Adverse possession as well as by virtue of title documents and the Defendants have no right title interest claim whatsoever vested the suit property in any manner.

(c) That a decree for permanent injunction may be passed in favour of Plaintiff and against the Defendants whereby the Defendants, their agent and associates etc. etc. may be restraint permanently and forever from interfering the plaintiff in her peaceful possession of premises which bearing MCD No. A-122/2, Ashok Nagar, Delhi - 110093 as shown in Red Colour in the site plan.

(d) That the entire costs of the suit may be awarded in favour of Plaintiff and against the Defendants.

(e) That any other relief which may deem fit and proper under the circumstances of the case may be awarded in favour of Plaintiff and against the Defendants."

3. Appellant, and the respondent no. 2 in this appeal, were the

defendants in the suit. Respondent no. 2/defendant no.2 did not contest the suit

and stated that he had no interest in the suit property. It is only the

appellant/defendant no. 1, namely, Sh. Raghunandan Sharma who contested the

suit. It was pleaded by the appellant/defendant no. 1 in the written statement

that the rights claimed by the plaintiff in the suit property were hit by the

doctrine of lis pendens, inasmuch as, the Decree dated 17.8.1961 was taken up

in appeal and the first appellate court decided the first appeal against Sh.

Bhudev Sharma by confirming the decree of the suit property in favour of Sh.

Ram Prasad vide its Judgment dated 28.10.1971. It was therefore pleaded that

the Sale Deed dated 25.10.1971 executed by Sh. Kanta Prasad in favour of Sh.

Shish Pal Singh was hit by the doctrine of lis pendens noting that Sh. Kanta

Prasad had himself purchased the suit property from the defendant Sh. Bhudev

Sharma during the pendency of the suit titled as Ram Prasad Vs. Bhudev

Sharma & Ors which was decreed on 17.8.1961. It was further pleaded that a

transferee pendent lilte had no rights in view of Order XXI Rule 102 CPC and

that execution proceedings are already going on in which objections have been

filed by different persons to harass the appellant/defendant no.1 (decree holder

under the Decree dated 17.8.1961). Counsel for the appellant/defendant no.1

states that one set of objections stands dismissed right till the Supreme Court.

Counsel for the appellant/defendant no.1 states that execution proceedings with

respect to the Judgment and Decree dated 17.8.1961 as confirmed by the first

appellate court by its Judgment dated 28.10.1971 are still pending before the

executing court with respect to the suit property.

4. I may note that the appellant/defendant no.1 in this case has really

not argued on the most crucial aspect with respect to the non-maintainability of

the suit, inasmuch as, filing of a suit to question a decree and claim rights in the

suit property would be barred by Order XXI Rule 101 CPC. Order XXI Rule

101 CPC reads as under:-

"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."

5. Civil Procedure Code was amended by Act 104 of 1976 whereby

various provisions were brought in so as to bring about finality to the rights

under a decree for immovable property in the execution proceedings itself and

the objections of a person against the decree holder were to be decided as a suit

by virtue of Order XXI Rule 101 CPC because the filing of a fresh suit of an

objector seeking rights in the property which is the subject matter of a decree

was barred.

6. For the purpose of disposal of this Regular Second Appeal, the

following substantial question of law is framed:-

"Whether the filing of the suit by the plaintiff/predecessor-in-interest of respondent nos. 1(a) to 1(c) was not barred by virtue of Order XXI Rule 101 CPC and that whether all aspects of claims of the plaintiff in the suit

property had not to be dealt with in the suit by a civil court but could only be determined by the executing court executing the Judgment and Decree dated 17.8.1961 in the suit titled as Ram Prasad Vs. Bhudev Sharma and Ors. in suit no. 405/120 of 59/61."

7. I have allowed counsel for the appellant/defendant no. 1 to argue

this aspect framed above as the substantial question of law because not only this

plea is purely a legal plea, as it arises out of admitted facts and pleadings, the

issue goes actually to the root of the matter being the lack of jurisdiction of the

civil court to entertain the subject suit which has been decreed by the First

Appellate Court vide its impugned Judgment dated 7.1.2015. Section 9 CPC

provides that a suit cannot be entertained if there is an express or implied bar to

the filing of the suit. Rule 101 of Order XXI is an express bar to filing of a suit

to claim rights in a property which is a subject matter of a decree because all

rights which are claimed by a person have to be decided by filing objections and

with respect to which a complete procedure is provided from Rule 97 to Rule

106 of Order XXI CPC. Admittedly, the subject suit is filed by the

respondent/plaintiff who is tracing title from the defendant in suit no.405/120 of

59/61 Sh. Bhudev Sharma because Sh. Bhudev Sharma transferred his rights to

Sh. Kanta Prasad and Sh. Kanta Prasad transferred his rights to Sh. Shish Pal

Singh and from Sh. Shish Pal Singh the plaintiff claims rights by virtue of

documents dated 25.6.1985. When documents were executed in favour of Sh.

Kanta Prasad by Sh. Bhudev Sharma the earlier judicial proceedings in the suit

titled as Ram Prasad Vs. Bhudev Sharma and Ors were pending, inasmuch as,

the Decree dated 17.8.1961 was passed by the Civil Judge and the same was

taken up in appeal and the appeal was decided only on 28.10.1971. It may be

noted that Sh. Kanta Prasad who purchased from Sh. Bhudev Sharma himself

transferred the suit property to Sh. Shish Pal Singh by a Sale Deed which is

dated 25.10.1971, i.e just three days before passing of the Decree by the

appellate court on 28.10.1971. Therefore, there does not remain any doubt that

whatever rights are claimed by the plaintiff in the present suit, are effectively

rights in an immovable property which is already a subject matter of the decree

of the civil court, and rights in the said property can only be decided by means

of filing of objections under the procedure provided under Order XXI Rules 97

to 106 CPC and a suit cannot be filed in view of the express bar contained in

Rule 101 of Order XXI CPC.

8. In view of the above, the substantial question of law is answered in

favour of the appellant/defendant no.1 and it is held that the suit filed by the

plaintiff, now represented by respondent nos. 1(a) to 1(c), is barred under Order

XXI Rule 101 CPC and whatever rights the plaintiff may have can only be

agitated in the execution proceedings of the Decree dated 17.8.1961 in the suit

Ram Prasad Vs. Bhudev Sharma and Ors in suit no. 405/120 of 59/61, and in

which proceedings at the request of counsel for the appellant/defendant no.1 it

is noted that the appellant/defendant no.1 will be entitled to take the benefit of

Order XXI Rule 102 CPC which provides that a transferee pendente lite can

claim no rights in a property which is a subject matter of a decree.

9. The Regular Second Appeal is accordingly allowed and disposed

of in terms of the aforesaid discussion, leaving the parties to bear their own

costs.

SEPTEMBER 27, 2016                                     VALMIKI J. MEHTA, J
AK