Om Veer Singh Chauhan Vs. the Learned P.O., Rent Trib. Udaipur Andor - Court Judgment

SooperKanoon Citationsooperkanoon.com/983824
CourtRajasthan Jodhpur High Court
Decided OnMay-27-2013
AppellantOm Veer Singh Chauhan
RespondentThe Learned P.O., Rent Trib. Udaipur Andor
Excerpt:
1 in the high court of judicature for rajasthan at jodhpur s.b. civil writ petition no.5394/2012 om veer singh chauhan v/s. the learned presiding officer, learned rent tribunal udaiur & ors. date of order :::27. 05.2013 hon'ble mr. justice p.k. lohra mr. vijay purohit for dr. sachin acharya for the petitioner. mr. jogaram patel ] mr. rajat dave ] for the respondents. by the instant writ petition, the petitioner-objector has called in question the impugned order dated 4th may, 2012 passed by the learned appellate rent tribunal, udaipur, whereby the learned tribunal has affirmed the order passed by the learned rent tribunal, udaipur dated 10th may, 2010 rejecting his objections under order 21 rule 97 cpc. the brief facts of the case giving rise to this writ petition are that the petitioner, while claiming his possession on a property situated at 75, sai niwas, nav ghat, udaipur (for short hereinafter referred to as the property in 2 question), on the strength of agreement to sale executed by shri s.k. singh, husband of smt. gayatri singh respondent no.3, in the capacity of her power of attorney holder, laid an application under order 21 rule 97 cpc to oppose the execution of the decree of eviction for the property in question. in his application, under order 21 rule 97 cpc, the petitioner-objector has, inter alia, averred that the execution of the decree passed in favour of third respondentlandlord, gyatri devi, and against the alleged tenant, rajendra singh, is founded on a decree which was passed by the learned tribunal due to collusion between the rival parties. according to the version of the petitioner-objector, the property is in his possession and the same was never enjoyed by rajendra singh in the capacity of a tenant. in fact, mr. rajendra singh never remained tenant of the property in question and as such he never had the possession over the property in question. with these averments, the petitioner has submitted that the possession obtained by the third respondent in execution of decree from rajendra singh is illegal and in gross violation of principles of natural justice at the cost of jeopardizing the just rights of the petitioner. the petitioner in his objections has categorically averred that the husband of third respondent, shri s.k. singh, in the capacity of her power of attorney holder has executed an agreement to sale in his favour on 29th july”2001. and handed over the possession of the property in part performance of the contract on the same day and since then he is in possession of the property and enjoying the said property. highlighting many facts and circumstances demonstrating the abortive attempts at the behest of smt. gayatri singh to dispossess the petitioner from the property in question, the petitioner has averred in the objections that the decree which was passed against rajendra singh is having no impact on the rights of the petitioner which emanate from the agreement to sale. with these averments, in his objections, the petitioner has prayed for rescinding the order dated 22nd march, 2007 and stalling the execution proceedings by way of preserving the property in question with its entire belongings. the objections submitted on behalf of the petitioner were opposed by the respondent-landlord and reply to the said objections were submitted on her behalf. while responding the averments made in the objections that the petitioner has entered in the property in question as a part performance of agreement to sale, the respondent-landlord has alleged that the petitioner was, in fact, an employee of the respondent and in the said capacity, he was allowed to have his abode in one 4 room situated at the ground floor of the property. it was also highlighted by the respondent that the alleged agreement to sale was a spurious document and after its verification by the fsl, it was revealed that the document is forged. on the strength of that report, the respondent has lodged fir against the petitioner and after investigation, a charge-sheet was submitted against the petitioner before a competent criminal court. with all these averments, the respondent has questioned the legal sanctity of alleged agreement to sale and so also the objections submitted by the petitioner which are essentially founded on the said document. the learned executing court, after hearing the rival parties and examining the matter threadbare dismissed the objections submitted on behalf of the petitioner vide its order dated 10th may, 2010. feeling disgruntled from the order dated 10th may, 2010, the petitioner laid an appeal before the learned district judge-cum-appellate rent tribunal, udaipur. however, the said attempt of the petitioner also proved to be abortive and the learned appellate court vide its order dated 4th may, 2012 dismissed the appeal. learned counsel for the petitioner, mr. vijay purohit, has strenuously urged that the learned executing 5 court has not examined the objections of the petitioner in right perspective in the light of provisions contained under order 21 rule 97 cpc and the learned appellate court while concurring with the findings and conclusions of the learned executing court has committed same folly and that being so both these impugned orders are not sustainable. the learned counsel for the petitioner would urge that the objections submitted under order 21 rule 97 cpc are required to be adjudicated in accordance with the procedure contained under rules 98 to 103 of order 21 cpc. however, according to the learned counsel for the petitioner, in the instant case, the said procedure has not been adhered to by the learned executing court and as such the order passed by the learned executing court suffers from serious irregularity which is apparent on the face of record. learned counsel has further contended that this serious omission on the part of the learned executing court was not appreciated by the learned appellate court, and therefore, both these orders are required to be interfered with in exercise of supervisory certiorari jurisdiction of this court. learned counsel for the petitioner has vehemently argued that the petitioner is in possession of the property in question on the strength of agreement to sale, which was executed by the power of attorney holder of smt. gayatri singh, inasmuch as possession was handed over to him in part performance of the 6 contract, and therefore, execution of decree against the alleged tenant at the cost of rights of the petitioner is not tenable. learned counsel would urge that regarding the property in question, the petitioner is having independent right and as such by virtue of rule 102 of order 21 cpc he is well within his right to put resistance or obstruction in execution of a decree for the possession of immovable property. in support of his contentions, the learned counsel for the petitioner has placed reliance on the following verdicts :- (i) ram chandra verma v/s. jagat singh singhfi & ors. [(1996) 8 scc 47.; and (ii) niyamat ali mohlla v/s. sonargon housing cooperative soceity ltd. & ors [(2007) 3 scc 421]. in ram chandra verma's case (supra), the apex court, while dealing with a compromise decree for eviction, between the rival parties dehors conditions for eviction, has held that an incumbent in possession over the immovable property is entitled to obstruct the execution for defending his illegal dispossession in the execution proceedings. the apex court held in par 5 as infra :”5. in the compromise decree, ultimately, the high court granted possession of the premises in occupation of the appellant. the appellant having been found in possession, he is entitled to obstruct execution defending his illegal dispossession in execution proceedings and he is also independently entitled to file application under order 21 rule 97 claiming his possession. in view of the fact that he was found to be in possession, the finding recorded by the executing court as upheld by the high court that he is a licensee on behalf of harkesh rai agarwal is clearly illegal. we, therefore, hold that the appellant cannot be ejected from the premises in his possession except in accordance with law. as regards the execution of the compromise decree is concerned, it would be open to the respondent to proceed against harkesh rai agarwal in accordance with law. in niyamat ali mohlla's case (supra), the apex court while recognizing the right of an incumbent who is in possession of the immovable property, has held that a decree passed for declaration and possession of the property, wherein the said incumbent is not party, is not binding on him and he is well within his rights to avail remedy under order 21 rules 97 and 99 cpc. the apex court has made following observations in the background of facts of that case in para 27 as infra:- 27. this appeal and the application for impleadment are dismissed accordingly. it would however, be for the executing court to consider at the time of execution of the decree to ascertain whether there exists any difficulty in executing the decree or 8 not. in the facts and circumstances of the case, however, there shall be no order as to costs. per contra, learned counsel for the respondent- landlord has vehemently argued that both the courts below have recorded a concurrent finding of fact that objections submitted on behalf of the petitioner are not tenable and as such in exercise of supervisory jurisdiction of this court, no interference is called for. learned counsel for the respondent, mr. j.r. patel, would urge that this court while exercising supervisory jurisdiction is not obliged to re-appreciate the facts and materials on record because the supervisory jurisdiction is to be exercised with great care and circumspection. learned counsel for the respondent submits that this court in exercise of its certiorari supervisory jurisdiction is primarily concerned with the decision making process of the learned courts below and not to examine the legality of the impugned order, as according to the learned counsel it is beyond the scope of article 227 of the constitution of india. mr. patel, the learned counsel for the respondent, would urge that the alleged agreement to sale, which is edifice of the entire objections of the petitioner, is a spurious document and the petitioner is facing criminal prosecution for preparation of such document. therefore, according to the learned counsel for the respondent, the bona 9 fides and credentials of the petitioner are under serious clouds and in these circumstances no indulgence can be granted to the petitioner. mr. patel, learned counsel for the respondent, has strenuously urged that the alleged agreement to sale is inadmissible in evidence inasmuch as it is neither properly stamped, nor it is registered and both the courts below while taking note of these facts have thwarted the objections of the petitioner under order 21 rule 97 cpc. the learned counsel for the respondent has argued that for the same premises during execution proceedings objections were submitted by sanjay kumar singh under order 21 rule 97 cpc for putting resistance and obstruction against the execution of the decree and these objections were rejected by the executing court and upheld by the appellate court. being aggrieved from the order of the learned appellate court, a writ petition was laid by sanjay kumar before this court, which was registered as s.b. civil writ petition no.12499/2012, wherein it was alleged that the respondent-landlord is not owner of the property and as such she cannot be permitted to execute the decree for possession of the immovable property. the said writ petition was dismissed by this court vide its order dated 22nd february, 2013, and therefore, this de-novo attempt at the behest of the petitioner with same objections is not at all tenable. this court in s.b. civil writ petition no.12499/2012 decided on 22nd 10 february, 2013, while considering the powers of the executing court under order 21 rule 97 cpc has made following observations in para 9 of the verdict :- 9. it is not the law that in all cases where any person has filed objections resisting the decree for the possession of the immovable property, the executing court is under an obligation to stay the execution of the decree as a matter of course. unless on the basis of material on record, it is prima facie established that the objector is in possession of the disputed property, the question of protecting his possession pending disposal of the objections raised does not arise. further elaborating the powers of the executing court under order 21 rule 97 cpc, a court has made following observations in paras 11 & 12 of the verdict :- 11. as noticed above, the objections raised by shri om veer singh, resisting the execution of certificate for recovery of possession, who is alleged to have been put into possession of the property in question by the petitioner by way of agreement to sell already stand rejected by the rent tribunal and aggrieved thereby, an appeal preferred by him also stands dismissed by the appellate rent tribunal.12. thus, on the facts and in the circumstances of the case, viewed from any angle, the finding arrived at by the rent tribunal that the petitioner has no prima facie case in his favour cannot be said to be capricious or perverse so as to warrant interference by this court in 11 exercise of its supervisory jurisdiction under article 227 of the constitution of india. learned counsel for the respondent has placed reliance on a division bench of this court in case of sajjan kumar agarwal & ors. v/s. rent control appellate tribunal & ors. [2011 (3) wlc (raj.) 441]. in this case, the division bench of this court, while examining the scope of interference under supervisory jurisdiction vis-a-vis the orders passed by the rent tribunals, made following observations in para 22 of the said verdict :- 22. we have considered the submissions raised by the learned counsel for the appellants on merits. however, we place on record the decision relied upon by the learned counsel for the respondents in respect of scope of interference in such matter in ashok kumar & ors v/s. sita ram (2001) wlc (sc) civil 468 : (2001) 4 scc478) wherein it has been laid down by the apex court that rent control appellate authority is a statutory quasi-judicial authority and when order passed by such authority is challenged before the high court, the role of high court is supervisory and corrective. the high court would only have jurisdiction to interfere with the order passed by such authority, if it suffers from manifest error or if it would lead to perpetuation of grave injustice if not set aside. in such matter, the high court is not to act as another appellate court. a finding of fact should not ordinarily be interfered with by the high court in exercise of writ jurisdiction unless it is found that the finding was vitiated by 12 manifest error of law or is patently perverse. the high court should not interfere with the findings of fact simply because it felt persuaded to take different view on the material on record. in the instant case, we have examined the case on merits and we find no illegality or infirmity or perversity in the findings of fact recorded by the courts below so as to warrant interference in extra-ordinary writ jurisdiction, that too in intra-court appeal. learned counsel for the respondent has also placed reliance on the judgment of avinash kumar chauhan v/s. vijay krishna mishra [air 200.sc 1489.wherein while examining a deed of sale which was not adequately stamped, the apex court has held in clear and unequivocal terms that the said document is inadmissible in evidence even for collateral purposes in terms of section 35 of the stamp act, 1899. the court made following observations in that context in paras 18 & 19 of the verdict :- 18. the unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. adequate stamp duty admittedly was not paid. the court, therefore, was empowered to pass an order in terms of section 35 of the act.19. the contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. in bondar singh (supra) this court was not concerned with the provisions of the act. only interpretation of the provisions of the registration act, 1908 was in question. it was opined :- 13 the main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. the sale deed dated 9-5-1931 by fakir chand, father of the defendants in favour of tola singh, the predecessor-in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. the only defence set up agaisnt the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favaour of plaintiffs. under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. however, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. in the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. the sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized... in this case, by reason of the statutory interdict, no transfer at all is permissible. even transfer of possession is also not permissible. (see pandey oraon v. ram chander sahu, 1992 supp (2) scc 7.and amrendra pratap singh v. tej bahadur prajapati and others, (2004) 10 scc 65]. the learned counsel for the respondent has also taken shelter of the case of suraj lamp & industries pvt. 14 ltd. v/s. state of haryana & anr. [2011 dnj (sc) 1058.], wherein the apex court has concluded with clarity and precision that in case of sale of immovable property and agreement to sale does not create any interest in or charge on such property. the court made following observations in this behalf in para 11 & 12 of the verdict :- 11. section 54 of tp act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge of such property. this court in narandas karsondas vs. s.a. kamtam & anr., (1977) 3 scc 247.observed : a contract of sale does not of itself create any interest in, or charge on, the property. this is expressly declared in section 54 of the transfer of property act. [see rambaran prosad vs. ram mohit hazara, [1967] 1 scr 293]. the fiduciary character of the personal obligation created by a contract for sale is recognised in section 3 of the specific relief act, 1963, and in section 91 of the trusts act. the personal obligation created by a contract of sale is described in section 40 of the transfer of property act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest of easement therein. in india, the word 'transfer' is defined with reference to the word 'convey'. the word 'conveys' in section 5 of transfer of property 15 act is used in the wider sense of conveying ownership..... that only on execution of conveyance ownership passes from one party to another.... in rambhau namdeo gajre vs. narayan bapuji dhotra, (2004) 8 scc 61.this court held: protection provided under section 53a of the act to the proposed transferee is a shield only against the transferor. it disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. it has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. it is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). in the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.12. any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of tp act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53a of tp act). according to tp act, an 16 agreement of sale, whether with possession or without possession, is not a conveyance. section 54 of tp act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. i have heard the learned counsel for the parties and perused the materials on record. on close scrutiny in the backdrop of the facts and circumstances of the instant case, it is amply clear that a certificate of eviction was issued against the fourth respondent-tenant and for executing the said certificate, the third respondent has laid the execution proceedings. from a bare perusal of the order passed by the rent tribunal, it is crystal clear that while rejecting the objections of the petitioner, the learned rent tribunal has examined the matter in its entirety. moreover, the learned tribunal has also recorded a definite finding that genuineness of the alleged agreement to sale is under serious clouds inasmuch as for the said agreement to sale, the petitioner is facing criminal prosecution. that apart, the learned rent tribunal has also recorded a finding of fact that the alleged agreement to sale has not conferred any right whatsoever qua the petitioner for property in question. the learned tribunal has also observed 17 that the alleged agreement to sale is of 2001 and no endeavour is made by the petitioner to seek specific performance of the said agreement within the prescribed period of limitation, and even for five years from the date of agreement the petitioner has not made efforts for its specific performance are the material facts which are sufficient to discredit the said agreement to sale. after examining the matter threadbare, the learned tribunal has also concluded in clear and unequivocal terms that the alleged agreement to sale, prima facie, establishes nexus between the petitioner and sanjay singh, husband of the respondent-landlord, and collusion between them. the learned tribunal has drawn this inference while taking cognizance of the fact that there is a serious acrimony between the third respondent and her husband, sanjay singh, and matrimonial disputes are pending between them. the learned tribunal has also recorded a definite finding that execution of the alleged agreement to sale itself is suspicious, and therefore, same cannot be relied upon. the learned appellate court has also concurred with the findings of the learned tribunal that looking to the strained relationship between the third respondent and her husband, and the fact that respondent no.3 is the owner of the property, the objection submitted by the petitioner are not tenable. the learned appellate court has also concluded that 18 the objections of the petitioner are founded on the said agreement to sale executed by sanjay kumar singh which was executed under suspicious circumstances and on the face of it its genuineness is doubtful, the objections at the behest of the petitioner are not sustainable. in my opinion, such concurrent finding of fact is not liable to be interfered with while exercising limited power of judicial review under article 227 of the constitution of india. reliance in this behalf can profitably be made to a verdict in case of surya dev rai v/s. ram chander rai & ors. [(2003) 6 scc 675], wherein the apex court while considering the scope of judicial review under article 227 of the constitution of india, has made following observations in para 24 of the judgment:- 24. the difference between articles 226 and 227 of the constitution was well brought out in umaji keshao meshram and ors. vs. smt. radhikabai, (1986) supp. scc 401.proceedings under article 226 are in exercise of the original jurisdiction of the high court while proceedings under article 227 of the constitution are not original but only supervisory. article 227 substantially reproduces the provisions of section 107 of the government of india act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. though the power is akin to that of an ordinary court of appeal, yet the power under articl”19. is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. the power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. while summarizing its conclusions in nutshell, the apex court has laid down certain parameters for exercising supervisory jurisdiction in sub-paras (4) to (8) of para 38 as infra :- (4) supervisory jurisdiction under article 227 of the constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. when a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the high court may step in to exercise its supervisory jurisdiction. (5) be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the 20 provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) a patent error is an error which is self- evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) the power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the high court dictates it to act lest a gross failure of justice or grave injustice should occasion. care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of high court would obstruct the smooth flow and/or early disposal of the suit or proceedings. the high court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) the high court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 21 thus, applying the parameters set out by the apex court for exercising of supervisory jurisdiction of this court and a critical analysis of the facts and circumstances of the instant case, this court is of the opinion that the impugned order passed by the learned appellate court affirming the order passed by the learned rent tribunal is neither perverse, nor the same is infirm on account of an error apparent on the face of record. moreover, in the factual background of the present case, the order impugned has also not occasioned failure of justice. that apart, prima facie, conduct of the petitioner is also under serious cloud and as such his quest for justice under supervisory equitable jurisdiction of this court is wholly untenable. this court while examining the question about entertainment of objections under order 21 rule 97 cpc in case of tara chand & ors. v/s. mahendra kumar & anr. [2013 (2) wlc (raj.) 475] has deprecated the practice of entertaining frivolous objections and made following observations in this behalf in para 24 of the said verdict :- 24. before parting, i may hasten to add that the executing court must show promptness in rejection of such indiscreet objections at the instance of unscrupulous 22 obstructionists to facilitate expeditious execution of a decree. therefore, viewed from any angle, i find no merit in the present petition and the same is accordingly dismissed. no order as to costs. (p.k. lohra), j.a.asopa/-
Judgment:

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CIVIL WRIT PETITION No.5394/2012 Om Veer Singh Chauhan V/s. The learned Presiding Officer, learned Rent Tribunal Udaiur & Ors. Date of Order :::

27. 05.2013 HON'BLE MR. JUSTICE P.K. LOHRA Mr. Vijay Purohit for Dr. Sachin Acharya for the petitioner. Mr. Jogaram Patel ] Mr. Rajat Dave ] for the respondents. By the instant writ petition, the petitioner-objector has called in question the impugned order dated 4th May, 2012 passed by the learned Appellate Rent Tribunal, Udaipur, whereby the learned Tribunal has affirmed the order passed by the learned Rent Tribunal, Udaipur dated 10th May, 2010 rejecting his objections under Order 21 Rule 97 CPC. The brief facts of the case giving rise to this writ petition are that the petitioner, while claiming his possession on a property situated at 75, Sai Niwas, Nav Ghat, Udaipur (for short hereinafter referred to as the property in 2 question), on the strength of agreement to sale executed by Shri S.K. Singh, husband of Smt. Gayatri Singh respondent No.3, in the capacity of her power of attorney holder, laid an application under Order 21 Rule 97 CPC to oppose the execution of the decree of eviction for the property in question. In his application, under order 21 Rule 97 CPC, the petitioner-objector has, inter alia, averred that the execution of the decree passed in favour of third respondentlandlord, Gyatri Devi, and against the alleged tenant, Rajendra Singh, is founded on a decree which was passed by the learned Tribunal due to collusion between the rival parties. According to the version of the petitioner-objector, the property is in his possession and the same was never enjoyed by Rajendra Singh in the capacity of a tenant. In fact, Mr. Rajendra Singh never remained tenant of the property in question and as such he never had the possession over the property in question. With these averments, the petitioner has submitted that the possession obtained by the third respondent in execution of decree from Rajendra Singh is illegal and in gross violation of principles of natural justice at the cost of jeopardizing the just rights of the petitioner. The petitioner in his objections has categorically averred that the husband of third respondent, Shri S.K. Singh, in the capacity of her power of attorney holder has executed an agreement to sale in his favour on 29th July”

2001. and handed over the possession of the property in part performance of the contract on the same day and since then he is in possession of the property and enjoying the said property. Highlighting many facts and circumstances demonstrating the abortive attempts at the behest of Smt. Gayatri Singh to dispossess the petitioner from the property in question, the petitioner has averred in the objections that the decree which was passed against Rajendra Singh is having no impact on the rights of the petitioner which emanate from the agreement to sale. With these averments, in his objections, the petitioner has prayed for rescinding the order dated 22nd March, 2007 and stalling the execution proceedings by way of preserving the property in question with its entire belongings. The objections submitted on behalf of the petitioner were opposed by the respondent-landlord and reply to the said objections were submitted on her behalf. While responding the averments made in the objections that the petitioner has entered in the property in question as a part performance of agreement to sale, the respondent-landlord has alleged that the petitioner was, in fact, an employee of the respondent and in the said capacity, he was allowed to have his abode in one 4 room situated at the ground floor of the property. It was also highlighted by the respondent that the alleged agreement to sale was a spurious document and after its verification by the FSL, it was revealed that the document is forged. On the strength of that report, the respondent has lodged FIR against the petitioner and after investigation, a charge-sheet was submitted against the petitioner before a competent criminal court. With all these averments, the respondent has questioned the legal sanctity of alleged agreement to sale and so also the objections submitted by the petitioner which are essentially founded on the said document. The learned executing Court, after hearing the rival parties and examining the matter threadbare dismissed the objections submitted on behalf of the petitioner vide its order dated 10th May, 2010. Feeling disgruntled from the order dated 10th May, 2010, the petitioner laid an appeal before the learned District Judge-cum-Appellate Rent Tribunal, Udaipur. However, the said attempt of the petitioner also proved to be abortive and the learned appellate Court vide its order dated 4th May, 2012 dismissed the appeal. Learned counsel for the petitioner, Mr. Vijay Purohit, has strenuously urged that the learned executing 5 court has not examined the objections of the petitioner in right perspective in the light of provisions contained under order 21 Rule 97 CPC and the learned appellate Court while concurring with the findings and conclusions of the learned executing Court has committed same folly and that being so both these impugned orders are not sustainable. The learned counsel for the petitioner would urge that the objections submitted under order 21 Rule 97 CPC are required to be adjudicated in accordance with the procedure contained under Rules 98 to 103 of Order 21 CPC. However, according to the learned counsel for the petitioner, in the instant case, the said procedure has not been adhered to by the learned executing Court and as such the order passed by the learned executing Court suffers from serious irregularity which is apparent on the face of record. Learned counsel has further contended that this serious omission on the part of the learned executing Court was not appreciated by the learned appellate Court, and therefore, both these orders are required to be interfered with in exercise of supervisory certiorari jurisdiction of this Court. Learned counsel for the petitioner has vehemently argued that the petitioner is in possession of the property in question on the strength of agreement to sale, which was executed by the power of attorney holder of Smt. Gayatri Singh, inasmuch as possession was handed over to him in part performance of the 6 contract, and therefore, execution of decree against the alleged tenant at the cost of rights of the petitioner is not tenable. Learned counsel would urge that regarding the property in question, the petitioner is having independent right and as such by virtue of Rule 102 of Order 21 CPC he is well within his right to put resistance or obstruction in execution of a decree for the possession of immovable property. In support of his contentions, the learned counsel for the petitioner has placed reliance on the following verdicts :- (i) Ram Chandra Verma V/s. Jagat Singh Singhfi & ors. [(1996) 8 SCC 47.; and (ii) Niyamat Ali Mohlla V/s. Sonargon Housing Cooperative Soceity Ltd. & Ors [(2007) 3 SCC 421]. In Ram Chandra Verma's case (supra), the Apex court, while dealing with a compromise decree for eviction, between the rival parties dehors conditions for eviction, has held that an incumbent in possession over the immovable property is entitled to obstruct the execution for defending his illegal dispossession in the execution proceedings. The Apex Court held in par 5 as infra :”

5. In the compromise decree, ultimately, the High Court granted possession of the premises in occupation of the appellant. The appellant having been found in possession, he is entitled to obstruct execution defending his illegal dispossession in execution proceedings and he is also independently entitled to file application under Order 21 Rule 97 claiming his possession. In view of the fact that he was found to be in possession, the finding recorded by the Executing Court as upheld by the High Court that he is a licensee on behalf of Harkesh Rai Agarwal is clearly illegal. We, therefore, hold that the appellant cannot be ejected from the premises in his possession except in accordance with law. As regards the execution of the compromise decree is concerned, it would be open to the respondent to proceed against Harkesh Rai Agarwal in accordance with law. In Niyamat Ali Mohlla's case (supra), the Apex Court while recognizing the right of an incumbent who is in possession of the immovable property, has held that a decree passed for declaration and possession of the property, wherein the said incumbent is not party, is not binding on him and he is well within his rights to avail remedy under Order 21 Rules 97 and 99 CPC. The Apex Court has made following observations in the background of facts of that case in para 27 as infra:- 27. This appeal and the application for impleadment are dismissed accordingly. It would however, be for the executing court to consider at the time of execution of the decree to ascertain whether there exists any difficulty in executing the decree or 8 not. In the facts and circumstances of the case, however, there shall be no order as to costs. Per contra, learned counsel for the respondent- landlord has vehemently argued that both the courts below have recorded a concurrent finding of fact that objections submitted on behalf of the petitioner are not tenable and as such in exercise of supervisory jurisdiction of this court, no interference is called for. Learned counsel for the respondent, Mr. J.R. Patel, would urge that this Court while exercising supervisory jurisdiction is not obliged to re-appreciate the facts and materials on record because the supervisory jurisdiction is to be exercised with great care and circumspection. Learned counsel for the respondent submits that this Court in exercise of its certiorari supervisory jurisdiction is primarily concerned with the decision making process of the learned courts below and not to examine the legality of the impugned order, as according to the learned counsel it is beyond the scope of Article 227 of the Constitution of India. Mr. Patel, the learned counsel for the respondent, would urge that the alleged agreement to sale, which is edifice of the entire objections of the petitioner, is a spurious document and the petitioner is facing criminal prosecution for preparation of such document. Therefore, according to the learned counsel for the respondent, the bona 9 fides and credentials of the petitioner are under serious clouds and in these circumstances no indulgence can be granted to the petitioner. Mr. Patel, learned counsel for the respondent, has strenuously urged that the alleged agreement to sale is inadmissible in evidence inasmuch as it is neither properly stamped, nor it is registered and both the courts below while taking note of these facts have thwarted the objections of the petitioner under Order 21 Rule 97 CPC. The learned counsel for the respondent has argued that for the same premises during execution proceedings objections were submitted by Sanjay Kumar Singh under Order 21 Rule 97 CPC for putting resistance and obstruction against the execution of the decree and these objections were rejected by the executing Court and upheld by the appellate Court. Being aggrieved from the order of the learned appellate Court, a writ petition was laid by Sanjay Kumar before this Court, which was registered as S.B. Civil Writ Petition No.12499/2012, wherein it was alleged that the respondent-landlord is not owner of the property and as such she cannot be permitted to execute the decree for possession of the immovable property. The said writ petition was dismissed by this Court vide its order dated 22nd February, 2013, and therefore, this de-novo attempt at the behest of the petitioner with same objections is not at all tenable. This Court in S.B. Civil Writ Petition No.12499/2012 decided on 22nd 10 February, 2013, while considering the powers of the executing Court under Order 21 Rule 97 CPC has made following observations in para 9 of the verdict :- 9. It is not the law that in all cases where any person has filed objections resisting the decree for the possession of the immovable property, the executing court is under an obligation to stay the execution of the decree as a matter of course. Unless on the basis of material on record, it is prima facie established that the objector is in possession of the disputed property, the question of protecting his possession pending disposal of the objections raised does not arise. Further elaborating the powers of the executing Court under Order 21 Rule 97 CPC, a Court has made following observations in paras 11 & 12 of the verdict :- 11. As noticed above, the objections raised by Shri Om Veer Singh, resisting the execution of certificate for recovery of possession, who is alleged to have been put into possession of the property in question by the petitioner by way of agreement to sell already stand rejected by the Rent Tribunal and aggrieved thereby, an appeal preferred by him also stands dismissed by the Appellate Rent Tribunal.

12. Thus, on the facts and in the circumstances of the case, viewed from any angle, the finding arrived at by the Rent Tribunal that the petitioner has no prima facie case in his favour cannot be said to be capricious or perverse so as to warrant interference by this Court in 11 exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. Learned counsel for the respondent has placed reliance on a Division Bench of this Court in case of Sajjan Kumar Agarwal & Ors. V/s. Rent Control Appellate Tribunal & Ors. [2011 (3) WLC (Raj.) 441]. In this case, the Division Bench of this Court, while examining the scope of interference under supervisory jurisdiction vis-a-vis the orders passed by the Rent Tribunals, made following observations in para 22 of the said verdict :- 22. We have considered the submissions raised by the learned counsel for the appellants on merits. However, we place on record the decision relied upon by the learned counsel for the respondents in respect of scope of interference in such matter in Ashok Kumar & Ors V/s. Sita Ram (2001) WLC (SC) Civil 468 : (2001) 4 SCC

478) wherein it has been laid down by the Apex Court that Rent Control Appellate Authority is a statutory quasi-judicial authority and when order passed by such authority is challenged before the High Court, the role of High Court is supervisory and corrective. The High Court would only have jurisdiction to interfere with the order passed by such authority, if it suffers from manifest error or if it would lead to perpetuation of grave injustice if not set aside. In such matter, the High Court is not to act as another appellate court. A finding of fact should not ordinarily be interfered with by the High Court in exercise of writ jurisdiction unless it is found that the finding was vitiated by 12 manifest error of law or is patently perverse. The High Court should not interfere with the findings of fact simply because it felt persuaded to take different view on the material on record. In the instant case, we have examined the case on merits and we find no illegality or infirmity or perversity in the findings of fact recorded by the courts below so as to warrant interference in extra-ordinary writ jurisdiction, that too in intra-court appeal. Learned counsel for the respondent has also placed reliance on the judgment of Avinash Kumar Chauhan V/s. Vijay Krishna Mishra [AIR 200.SC 1489.wherein while examining a deed of sale which was not adequately stamped, the Apex Court has held in clear and unequivocal terms that the said document is inadmissible in evidence even for collateral purposes in terms of Section 35 of the Stamp Act, 1899. The Court made following observations in that context in paras 18 & 19 of the verdict :- 18. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the act.

19. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In Bondar Singh (supra) this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question. It was opined :- 13 the main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor-in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up agaisnt the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favaour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized... In this case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. (see Pandey Oraon v. Ram Chander Sahu, 1992 Supp (2) SCC 7.and Amrendra Pratap Singh v. Tej Bahadur Prajapati and others, (2004) 10 SCC 65]. The learned counsel for the respondent has also taken shelter of the case of Suraj Lamp & Industries Pvt. 14 Ltd. V/s. State of Haryana & Anr. [2011 DNJ (SC) 1058.], wherein the Apex Court has concluded with clarity and precision that in case of sale of immovable property and agreement to sale does not create any interest in or charge on such property. The Court made following observations in this behalf in para 11 & 12 of the verdict :- 11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge of such property. This Court in Narandas Karsondas Vs. S.A. Kamtam & Anr., (1977) 3 SCC 247.observed : A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the transfer of Property Act. [See Rambaran Prosad Vs. Ram Mohit Hazara, [1967] 1 SCR 293]. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest of easement therein. In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in Section 5 of Transfer of Property 15 Act is used in the wider sense of conveying ownership..... that only on execution of conveyance ownership passes from one party to another.... In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra, (2004) 8 SCC 61.this Court held: Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.

12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of TP Act). According to TP Act, an 16 agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. I have heard the learned counsel for the parties and perused the materials on record. On close scrutiny in the backdrop of the facts and circumstances of the instant case, it is amply clear that a certificate of eviction was issued against the fourth respondent-tenant and for executing the said certificate, the third respondent has laid the execution proceedings. From a bare perusal of the order passed by the Rent Tribunal, it is crystal clear that while rejecting the objections of the petitioner, the learned Rent Tribunal has examined the matter in its entirety. Moreover, the learned Tribunal has also recorded a definite finding that genuineness of the alleged agreement to sale is under serious clouds inasmuch as for the said agreement to sale, the petitioner is facing criminal prosecution. That apart, the learned Rent Tribunal has also recorded a finding of fact that the alleged agreement to sale has not conferred any right whatsoever qua the petitioner for property in question. The learned Tribunal has also observed 17 that the alleged agreement to sale is of 2001 and no endeavour is made by the petitioner to seek specific performance of the said agreement within the prescribed period of limitation, and even for five years from the date of agreement the petitioner has not made efforts for its specific performance are the material facts which are sufficient to discredit the said agreement to sale. After examining the matter threadbare, the learned Tribunal has also concluded in clear and unequivocal terms that the alleged agreement to sale, prima facie, establishes nexus between the petitioner and Sanjay Singh, husband of the respondent-landlord, and collusion between them. The learned Tribunal has drawn this inference while taking cognizance of the fact that there is a serious acrimony between the third respondent and her husband, Sanjay Singh, and matrimonial disputes are pending between them. The learned Tribunal has also recorded a definite finding that execution of the alleged agreement to sale itself is suspicious, and therefore, same cannot be relied upon. The learned appellate Court has also concurred with the findings of the learned Tribunal that looking to the strained relationship between the third respondent and her husband, and the fact that respondent No.3 is the owner of the property, the objection submitted by the petitioner are not tenable. The learned Appellate Court has also concluded that 18 the objections of the petitioner are founded on the said agreement to sale executed by Sanjay Kumar Singh which was executed under suspicious circumstances and on the face of it its genuineness is doubtful, the objections at the behest of the petitioner are not sustainable. In my opinion, such concurrent finding of fact is not liable to be interfered with while exercising limited power of judicial review under Article 227 of the Constitution of India. Reliance in this behalf can profitably be made to a verdict in case of Surya Dev Rai V/s. Ram Chander Rai & Ors. [(2003) 6 SCC 675], wherein the Apex Court while considering the scope of judicial review under Article 227 of the Constitution of India, has made following observations in para 24 of the judgment:- 24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai, (1986) Supp. SCC 401.Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Articl”

19. is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. While summarizing its conclusions in nutshell, the Apex Court has laid down certain parameters for exercising supervisory jurisdiction in sub-paras (4) to (8) of para 38 as infra :- (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the 20 provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self- evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 21 Thus, applying the parameters set out by the Apex Court for exercising of supervisory jurisdiction of this Court and a critical analysis of the facts and circumstances of the instant case, this Court is of the opinion that the impugned order passed by the learned appellate Court affirming the order passed by the learned Rent Tribunal is neither perverse, nor the same is infirm on account of an error apparent on the face of record. Moreover, in the factual background of the present case, the order impugned has also not occasioned failure of justice. That apart, prima facie, conduct of the petitioner is also under serious cloud and as such his quest for justice under supervisory equitable jurisdiction of this Court is wholly untenable. This court while examining the question about entertainment of objections under Order 21 Rule 97 CPC in case of Tara Chand & ors. V/s. Mahendra Kumar & anr. [2013 (2) WLC (Raj.) 475] has deprecated the practice of entertaining frivolous objections and made following observations in this behalf in para 24 of the said verdict :- 24. Before parting, I may hasten to add that the executing court must show promptness in rejection of such indiscreet objections at the instance of unscrupulous 22 obstructionists to facilitate expeditious execution of a decree. Therefore, viewed from any angle, I find no merit in the present petition and the same is accordingly dismissed. No order as to costs. (P.K. LOHRA), J.

a.asopa/-