Sunam Co-operative Marketing Society Vs. Rama Kant and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. orderhemant gupta, j.1. the challenge in the present revision petition is to the order dated 12-3-2005, passed by the learned executing court, whereby objections filed by the present petitioner in respect of execution of the decree for possession dated 27-11-1998 of the land of khasra no. 335/1 (6-0), situated in village sunam. was dismissed.2. the suit for possession was filed by the plaintiff on the basis of title, alleging therein that the defendant has taken unlawful possession of the property in dispute. the defendant appeared in the suit and asserted that since 1-6-1991, the defendant is in adverse possession of the property in dispute and the plaintiff never remained in possession since 27-12-1968. it was alleged that earlier the present petitioner was in possession. it was, thus, alleged that the possession of the defendant on the suit property exceeds the period of 12 years and thus, the defendant has become the owner of the suit property by way of adverse possession.3. the learned trial court decreed the suit for possession on 27-11-1998. in execution of the said decree, the present petitioner filed objections to the effect that the objector is in possession of the land measuring 2 marlas of khasra no. 335/1. it is alleged that the petitioner has purchased the land measuring 12 kanals 16 marlas and 5 kanals vide two separate sale deeds dated 7-1-1969. the land purchased was vacant and open land and was adjoining to khasra no. 335/1 (6-0). the petitioner has asserted that the possession of the land was given to markfed in the year 1969 and to the judgment-debtor in the year 1991. thus, the petitioner asserted adverse possession in respect of the land measuring 2 marlas of khasra no. 335/1.4. the learned executing court has dismissed the objections filed by the petitioner, on the ground that there is no document to show the possession of the objector over the property in dispute since the year 1969. it has also been found that the objector has not produced the rent note whereby the premises, allegedly constructed over the disputed property, were given on lease to the judgment-debtor. the court also considered the written statement filed by the judgment-debtor in the suit filed by the decree holder, which is to the effect that he has taken forcible possession of the property in dispute.5. learned counsel for the petitioner has vehemently argued that the learned executing court should have given an opportunity to the petitioner to produce evidence in respect of the objections raised, so as to decide the issues arising between the parties on the basis of evidence led. the dismissal of the objections without framing issues has caused manifest injustice to the petitioner. learned counsel for the petitioner has relied upon the judgments reported as : [1996]2scr763 , babulal v. raj kumar : [1997]1scr463 , brahmdeo chaudhary v. rishikesh prasad jaiswal : air2002sc251 , n.s.s. narayana sarma v. goldstone exports (p) ltd. reference is also made to the division bench judgment of this court reported as , inder singh v. piara singh.6. a perusal of the judgments relied upon by learned counsel for the petitioner, shows that the objections of the petitioner are, in fact, in terms of order 21, rule 99 of the code of civil procedure, 1908. the orders on such objections have the force of decree in terms of order 21, rule 103 of the code of civil procedure. therefore, the remedy of the petitioner is to file an appeal against the said order.7. the present revision petition is, thus, not maintainable and the same is dismissed.

Judgment:
ORDER

Hemant Gupta, J.

1. The challenge in the present revision petition is to the order dated 12-3-2005, passed by the learned Executing Court, whereby objections filed by the present petitioner in respect of execution of the decree for possession dated 27-11-1998 of the land of Khasra No. 335/1 (6-0), situated in village Sunam. was dismissed.

2. The suit for possession was filed by the plaintiff on the basis of title, alleging therein that the defendant has taken unlawful possession of the property in dispute. The defendant appeared in the suit and asserted that since 1-6-1991, the defendant is in adverse possession of the property in dispute and the plaintiff never remained in possession since 27-12-1968. It was alleged that earlier the present petitioner was in possession. It was, thus, alleged that the possession of the defendant on the suit property exceeds the period of 12 years and thus, the defendant has become the owner of the suit property by way of adverse possession.

3. The learned trial Court decreed the suit for possession on 27-11-1998. In execution of the said decree, the present petitioner filed objections to the effect that the objector is in possession of the land measuring 2 marlas of Khasra No. 335/1. It is alleged that the petitioner has purchased the land measuring 12 kanals 16 marlas and 5 kanals vide two separate sale deeds dated 7-1-1969. The land purchased was vacant and open land and was adjoining to Khasra No. 335/1 (6-0). The petitioner has asserted that the possession of the land was given to Markfed in the year 1969 and to the judgment-debtor in the year 1991. Thus, the petitioner asserted adverse possession in respect of the land measuring 2 marlas of Khasra No. 335/1.

4. The learned Executing Court has dismissed the objections filed by the petitioner, on the ground that there is no document to show the possession of the Objector over the property in dispute since the year 1969. It has also been found that the Objector has not produced the rent note whereby the premises, allegedly constructed over the disputed property, were given on lease to the judgment-debtor. The Court also considered the written statement filed by the judgment-debtor in the suit filed by the decree holder, which is to the effect that he has taken forcible possession of the property in dispute.

5. Learned Counsel for the petitioner has vehemently argued that the learned Executing Court should have given an opportunity to the petitioner to produce evidence in respect of the objections raised, so as to decide the issues arising between the parties on the basis of evidence led. The dismissal of the objections without framing issues has caused manifest injustice to the petitioner. Learned Counsel for the petitioner has relied upon the judgments reported as : [1996]2SCR763 , Babulal v. Raj Kumar : [1997]1SCR463 , Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal : AIR2002SC251 , N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd. Reference is also made to the Division Bench judgment of this Court reported as , Inder Singh v. Piara Singh.

6. A perusal of the judgments relied upon by learned Counsel for the petitioner, shows that the objections of the petitioner are, in fact, in terms of Order 21, Rule 99 of the Code of Civil Procedure, 1908. The orders on such objections have the force of decree in terms of Order 21, Rule 103 of the Code of Civil Procedure. Therefore, the remedy of the petitioner is to file an appeal against the said order.

7. The present revision petition is, thus, not maintainable and the same is dismissed.