1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE18H DAY OF OCTOBER, 2021 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A No.385/2017 BETWEEN: SRI. M. VENKATACHALAM AGED ABOUT53YEARS S/O. LATE G. MUNIYAPPA NO.30/1, ANANDRAO CIRCLE SESHADRI ROAD, BENGALURU-560 009. ...APPELLANT (BY SRI. VIJAYA SAI, ADVOCATE) AND:
1. SRI. MUKESH GUPTA S/O. G.S. GUPTA AGED ABOUT55YEARS C/O ASHA GEET SRI KRISHNA COMPLEX NO.32, SESHADRI ROAD BENGALURU-560 009.
2. SRI. ABDUL GAFOOR S/O. LATE ABDUL AZEEZ AGED ABOUT55YEARS PROPRIETOR, JABBAR TRAVELS NO.14, SRI KRISHNA COMPLEX, 2 NO.32, SESHADRI ROAD, BENGALURU-560 009. …RESPONDENTS (BY SRI.K.N.SHIVA REDDY, ADVOCATE FOR RESPONDENT-1) THIS R.F.A IS FILED UNDER ORDER
43RULE1C.P.C. AGAINST THE ORDER
DATED0608.2016 PASSED ON I.A.NOs.7 TO11IN EX.NO.1863/2015 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-20) DISMISSING THE I.A.NOs.7 TO11FOR DECLARATION. THIS R.F.A COMING ON FOR ORDER
S THE COURT DELIVERED THE FOLLOWING: JUDGMENT
Though this matter is listed today for orders, the same is taken up for final disposal having regard to the facts and circumstance of the case.
2. This Regular First Appeal is filed by the appellant under Order 43 Rule 1 of C.P.C., against order dated 06.08.2016 passed on I.A.Nos.7 to 11 in Ex.No.1863/2015 by the learned I Additional City Civil Judge and Sessions Judge, Bangalore City (CCH-20). 3
3. In order to avoid confusion and over-lapping, parties are addressed in accordance with their ranks as stood before the executing Court and the other parties who come in the course of this judgment are addressed by their name.
4. This appeal is preferred by objector in execution proceedings No.1863/2015-M.Venkatachalam as his applications filed Under order 21 Rule 97 to 101 of CPC., in I.A.No.7 to 11 came to be dismissed by the learned Judge in the execution proceedings. The execution proceedings came into existence because of decreeing of the suit in O.S.No.2781/2001 filed by the decree holder (in the capacity of the plaintiff) Mr.Mukesh Gupta seeking for eviction of one Jabbar Travels and Abdul Gafoor who is stated to be representing Jabbar Travels as well. 4
5. The objector in this case claims possession of the schedule property which is stated to be commercial shop premises independently having acquired the same from M/s. Sri. Krishna Enterprises who is stated to be the owner of the schedule property.
6. M/s. Sri. Krishna Enterprises is stated to have leased out the schedule property to the plaintiff-Mukesh Guptha under a lease deed dated 26.02.1987 for a period of 26 years and two months. The objector claims that he is inducted into possession in his independent capacity without any parties.
7. In this connection Sri. A. Vijaya Sai, learned counsel for the appellant submits that the learned judge in the execution proceedings committed serious error and irregularity by relying on Section 52 of the Transfer of Property Act, which covers doctrine of lis-Pendency. It is further submitted that the rights acquired by the 5 objector for the possession of the property is subject to the disposal of the suit for eviction filed by Sri. Krishna Enterprises against Mukesh Gupta in O.S.No.6028/2016. Thus the decree holder cannot question the stay of the objector with the help of the decree which is stated to have been obtained in his favour in O.S.No.2781/2001. The learned counsel submits that the execution proceedings can be proceeded with only in respect of the decree passed on the subject matter directly involved between the parties or person claiming under them. Thus, independent possession of the objector can not be disturbed by the decree holder in execution proceedings No.1863/2015.
8. Sri. K.N.Shiva Reddy, learned counsel for the respondent No.1/plaintiff submits that originally, the suit was filed by Mukesh Gupta against one Abdul Gafoor/defendant who is representing Jabbar Travels in respect of the schedule property. The said original suit 6 came to be decreed on 25.06.2005 against which the said Abdul Gafoor/defendant in the said suit filed an application under Order XI Rule 13 of CPC seeking to set-aside the exparte decree against him in respect of the subject matter. The application in Miscellaneous No.6545/2015 for setting-aside the ex-parte decree filed by Abdul Gafoor came to be dismissed on 29.06.2015 against which he preferred Miscellaneous First Appeal No.5411/2015, which also came to be dismissed on 22.09.2015.
9. Thus the decree passed against Abdul Gafoor has become final and binding with the dismissal of the Miscellaneous First Appeal No.5411/2015. The learned counsel further submitted that, thereafter the said defendant/Abdul Gafoor/judgment debtor undertook before the executing court on 11.11.2015 to deliver the possession of the property to the decree holder on or before 01.04.2016, but he failed to do the same. In the 7 meanwhile he filed another application on 31.04.2016 seeking for extension of time limit to vacate the schedule property by another three months which came to be dismissed by the executing Court on the same date and it was further submitted that the executing Court issued delivery warrant in respect of the schedule property in favour of the decree holder and against the judgment debtor-Abdul Gafoor-Jabbar Travels. Under the said circumstances the objector has filed an application marked as I.A.No.7 which came to be dismissed.
10. In the context and circumstances of the case it was brought to my notice that earlier, Miscellaneous First Appeal No.5650/2016 was filed. However on objections being raised, on the request of the objector, it was converted into Regular First Appeal on 14.12.2016 by this Court. 8
11. In the meanwhile it was brought to my notice that another Regular First Appeal was preferred by the same objector in RFA No.98/2017.
12. Sri. A.Vijaya Sai., learned counsel for the appellant has brought to my notice that said Regular First Appeal was dismissed on 11.03.2019. To void conflict of proceedings, now the present Regular First Appeal has been preferred against the order passed on I.A.No.7 to 11 in Execution No.1863/2015.
13. The application is stated to be have been filed under Order XXI Rule 97 to 101 of CPC. It is necessary to extract said provisions of law which are as under :- Order XXI Rule 97 of CPC Resistance or obstruction to possession of immovable property (1) Where the holder of decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or 9 obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance of obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Order XXI Rule 98 of CPC Order for 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 occasions without any just case 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 10 during the pendency of the suit or execution proceedings, 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. Order XXI Rule 99 of CPC Dispossession by decree-holder or purchaser (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of 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 may 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. 11 Order XXI Rule 100 of CPC 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 such 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. Order XXI Rule 101 of CPC Question to be determined All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceedings 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 applicant, 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. 12
14. In so far as the provisions relating to Order XXI Rule 97 of CPC is concerned, it is regarding resistance or obstruction by third parties in respect of possession of immovable properties or otherwise. It contemplates that where the holder of decree for the possession of immovable properties is resisted by any person obtaining possession of the properties, the said decree holder may make an application to the Court complaining of such resistance or obstruction.
15. Thus the scope of the present application filed under Order XXI Rule 97 of CPC is by the decree holder complaining resistance or obstruction. Sub- section (2) of the said provision is clear that, it is incumbent that the executing Court shall proceed to adjudicate upon the application complaining resistance or obstruction in accordance with the provisions laid down there under. Thus, the fact of the matter relating 13 to the point of law is complaining resistance or obstruction by the decree holder.
16. In so far as the application under Order XXI Rule 98 of CPC is concerned, it is adjudicating power of the Court i.e., more enabling legal provisions relating to the procedure. Order XXI Rule 99 of CPC relates to the dispossession of the purchaser by the decree holder or otherwise.
17. The guidelines are laid down in the decision rendered by the Apex Court in the case of Silver-line Form Pvt. Ltd. V. Rajiv Trust reported in AIR1998SC1754 18. It is never depending on the execution proceedings. In terms of the Order XXI Rule 99 of CPC, there is no bar to make an application after delivery of the possession made in the execution. Under the circumstances mentioned therein, the said provision is 14 against the illegal dispossession of the decree holder. In this connection the legal principle would not bar making an application even after delivery of the possession.
19. Further there is no doubt about the independents rights of persons claiming through or under the judgment-debtor. In so far as right regarding remaining in possession of the property is concerned, the matter would arise in respect of the individual rights. The provisions of law relating to the said aspects are laid down by the Hon’ble Apex Court in the case of H.Seshadri v. K.R. Natarajan, 2003 (1) SCW2145 2003 (10) SCC449 AIR2003SC3524 20. In so far as Order XXI Rule 100 of CPC is concerned, it is also an enabling provision wherein the Court shall determine the application so filed under Order XXI Rule 101 of CPC. Order XXI Rule 101 of CPC empowers the Court to decide the question including the 15 resisting of the title or interest in the properties arising between the parties in accordance with law.
21. Under Order XXI Rule 97 to 99 of CPC the matter has to be dealt with.
22. Phrase used in that dispute shall be determined by the Court by dealing with the application and not by separate suit. The contentions of the learned counsel for the appellant that he has acquired interest in respect of the property as he was permitted to continue in possession by inducting him into the possession by the owner and he is also permitted to continue in possession.
23. Here, It is necessary to mention Section 52 of Transfer of Property Act which reads as under :- 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 16 beyond such limits]. by [ the Central Government 44 [* * *]., of [any]. suit or proceedings [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 proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
24. There is no blanket bank to enter into transaction in respect of the subject matter of the property under the said provision. However, any such disposal transaction or contract shall not go against the final out come of the case.
25. However, in this connection what is important is when the owners themselves have permitted him to take in possession the decree holder cannot evict objector from possession or there is no previty of the contract. 17
26. Another contention of the learned counsel for the objector is that enquiry was held by the execution Court and matter ought to have been decided by the executing Court with detailed analysis of the documents and the rights. In this connection adjudication of the suit is made in accordance with provision of the procedural law. Order VII Rule 11 of CPC prescribe for rejection of the plaint. The said provision reads as under :- "The plaint shall be rejected in the following case:- (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is written upon paper insufficient stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a 18 time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate;]. (f) Where the plaintiff fails to comply with the provisions of rule ;]. [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.].
27. Under Order VII Rule 11 of CPC rejection of the plaint is deemed to be a decree and appealable, but it cannot be in all the cases enquiry may be necessary. 19
28. Further, in so far as question of law is concerned, there is no necessity for enquiry when answer is straight away available from the judicial decision and statute. The question of law does not require a discussion when the available set of the facts which are un-disputed. In this connection the first set of the transaction is the lease deed stated to have been executed by M/s. Sri. Krishna Enterprises in favour of Mukesh Gupta which is for a period of 26 years two months from 26.02.1987 and expired on 01.03.2013.
29. The contentions of the learned counsel for the objector is that the lessee-Mukesh Gupta who is decree holder lost all and every right to remain in possession or claim the possession or recovery of the possession of the schedule property beyond that date.
30. In this connection it was submitted that said M/s. Sri Krishna Enterprises had filed suit against 20 Mukesh Gupta-decree holder for the recovery of the possession in O.S.No.6028/2016 and the matter is pending and examination of the parties is yet to be commenced. Further contentions of the objector is that he has been permitted by the said M/s. Sri. Krishna Enterprises owners to stay in possession till the disposal of the said suit filed by M/s. Sri. Krishna Enterprises against Mukesh Gupta, as such, he is claiming lawful possession and the independent source beyond domain of the decree passed against the Abdul Gafoor.
31. Sri. Shiva Reddy, learned counsel for the respondent No.1 submits that the objector received possession from the judgment debtor at one stretch under lease agreement dated 10.01.2015 by the judgment debtor-Abdul Gafoor and however has shifted the stand for convenience. Now objector is claiming possession having been permitted from owner M/s. Sri. Krishna Enterprises. 21
32. Thus the learned counsel for the respondent No.1 submits that present objector is claiming possession from two diagonally opposite form as a matter of fact both are unlawful and cannot be claimed.
33. It is stated that lease between M/s. Sri. Krishna Enteprises and Mukesh Gupta with reference to O.S.No.6028/2016 pertains to the lease deed dated 26.02.1987.
34. Sri. A. Vijaya Sai, learned counsel for the appellant submits that said lease deed executed in favour of the plaintiff-decree holder is not a registered deed, however, this Court is not adjudicating the eviction based on the lease deed.
35. In the circumstances, the scope of the matter is amply clear with the help of the following points. 22 * Lessee is M/s. Sri. Krishna Enterprises and it is not disputed by the parties, * The lease deed is stated have been entered between M/s. Sri. Krishna Enteprises and Mukesh Gupta, * M/s. Sri. Krishna Enterprises chose to file a suit in the year 2016 in O.S.No.6028/2016 and the matter has to adjudicate in the said suit and which is stated to be pending.
36. In so far as giving possession through lease deed by the judgment debtor to the objector or even M/s. Sri. Krishna Enterprises to the objector would depend on the legal nature of the claim not on the basis admitted facts and circumstances. It is necessary to mention that as per the statute a lease gets expired by efflux of the time even in case legally entered into the lease, but practically it is not that landlords/lessee gets interest in the property and the expiration of the lease. Fact of the matter is, suit for eviction invariably is necessary on the termination due to efflux of the time. 23
37. Possession is actual defacto possession and cannot be transacted based on the period mentioned in the lease. However, at the end, every relationship comes to an end when the possession of lease hold property come to an end and the possession of the same has been delivered back to the lessor.
38. In this connection, point to be examined is, whether lessor-M/s. Sri. Krishna Enterprises has leased out the property and inducted the plaintiff-Mukesh Gupta-lessee into possession of the property, if the answer is "yes", whether possession of the schedule property has been given back by the lessee-Mukesh Gupta to M/s. Sri Krishna Enterprises. Because M/s. Sri. Krishna Enterprises have initiated proceedings against Mukesh Gupta for eviction and the matter is still to be adjudicated and due for examination. 24
39. The expiry of the lease period by itself concluded the delivery of possession of the leased property. On the other hand it is a gentle and voluntary act by the lessee or recovery of possession through separate legal procedure and the order of the Court.
40. The judgment-debtor-Jabbar Travels-Abdul Gafoor was inducted by Mukesh Gupta who initiated proceedings for eviction on the basis of the jural relationship.
41. In the circumstances, originally, suit for eviction was filed by Mukesh Gupta against the Jabbar Travels and decree was passed in the manner stated above which has become final and binding in execution proceedings wherein he filed an affidavit of undertaking and thereafter it was not complied. Application was filed for extension of time and that came to be rejected. The present objector claims of having received possession 25 from the judgment debtor and in the another circumstance claims that he has entered into lease with the judgment debtor.
42. In the whole set of circumstances, in the light of the admitted facts and provisions of the law, it is crystal clear that the objector has no independent right to maintain claim, possession or obstruct, to resist the possession or process of law under the execution proceedings, but no documents are filed. Further the owner M/s. Sri. Krishna Enterprises is yet to decide the possession and they have filed suit for eviction against Gupta which is pending. The appeal is devoid of merits and liable to be rejected at this stage itself with costs, accordingly it is rejected. Sd/- JUDGE hd