Noorduddin
Vs. Dr. K.L. Anand [1994] INSC 515 (6 October 1994)
Ramaswamy,
K. Ramaswamy, K. Venkatachala N. (J)
CITATION:
1995 SCC (1) 242 JT 1994 (7) 652 1994 SCALE (4)960
ACT:
HEAD NOTE:
ORDER
1.
Leave granted.
2. The
appellant's father Nanu, Rehmatullah and Wazu are brothers. Munshi and Banda
were their cousins. Munshi and Banda had migrated to Pakistan and their properties were declared
as evacuee properties. By proceedings dated 12-3- 1956, the competent authority
had passed an order separating the respective shares held by the evacuees, Munshi
and Banda as well as the father of the appellant, Rehmatullah and Wazu and
allotted specific items to Nanu. At an auction held on 14-4-1967 of the evacuee
+ From the Judgment and Order dated 11 -7-1994 of' the Delhi High Court in
C.R.P. No. 574 of 1994 244 properties, the respondent Dr K.L. Anand had become
the highest bidder and sale certificates issued on 26-9-1968, are as follows:
"CERTIFICATE
OF SALE (FREEHOLD PROPERTIES) Rule 90(15) This is to certify that Shri K.L. Anand,
s/o Shri Parshotam Dass Anand having given the highest bid of Rs 4250 (Rupees
Four thousand two hundred and fifty only) at sale by public auction held in
pursuance of the powers conferred upon me under Section 20 of the Displaced
Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) on 14-4-1967
of the property described in the Schedule and his bid having been accepted and
the value thereof having been paid by him in cash/by adjustment of compensation
due on his and his associate(s) claim(s) has been declared the purchaser of the
said property in shares as mentioned below with effect from 14-6-1968.
Given
under my hand and seal of my office this day of September 26, 1968.
Schedule
Shares Property Khasra Sakni No. 13 Full
Village Kalu Sarai, New Delhi.
bounded
as under:
East :
Mosque Gali West : House of Shri Rehmatullah North: Khasra Sakni No. 14 South: Gali Sd/- Signature
Designation: Managing Officer/Asst Custodian, New Delhi.
Shri
K.L. Anand, S/o Shri Parshotam Dass Anand Shop No. 176, Vinay Nagar, New Delhi.
Copies
to:
1.
Sub-Registrar, Kashmere Gate, Delhi.
2.
Assistant Accounts Officer, 3. Central Board of Revenues, New Delhi.
4.
Municipal Corporation of Delhi.
Signature
Designation.
245
CERTIFICATE OF SALE (FREEHOLD PROPERTIES) Rule 90(15) This is to certify that Shri
K.L. Anand, s/o Shri Parshotam Dass having given the highest bid of Rs 6050
(Rupees Six thousand and fifty only) at sale by public auction held in
pursuance of the powers conferred upon me under Section 20 of the Displaced
Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) on 14-4-1967
of the property described in the Schedule and his bid having been accepted and
the value thereof having been paid by him in cash/by adjustment of compensation
due on his and his associate(s) claim(s) has been declared the purchaser of the
said property in shares as mentioned below with effect from 14-6- 1968.
Given
under my hand and seal of my office this day of September 26, 1968.
Schedule
Shares Property Khasra Sakni No. 14 Full
Village Kalu Sarai, New Delhi.
bounded
asunder:
East
Mosque and Gali West House of Shri Wazu North Agricultural land South Khasra Sakni
No. 13 Sd/- M.L. Vij Signature 26-9-1968 Designation:Managing
Officer/Asstt. Custodian, Office of the Regional Settlement Commissioner, New Delhi.
To Shri
K.L. Anand Shop No. 176, Vinay Nagar, New Delhi.
No. RSCD(MO)/Auc/PN/Khasra
No. 13/Kalu Sarai/ D/5 178 Govt.. of India, Ministry of Labour, Employment and Rehabilitation, Office of Regional
Settlement Commissioner (MW), Jamnagar
House, New Delhi.
Corrigendum
25-10-1969 Subject:Regarding Khasra Sakni No.
13, 246 Village Kalu Sarai, New Delhi.
In the
certificate of sale executed on 26-9-1968 in favour of Shri K.L. Anand, s/o Shri
Parshotam Dass in respect of Khasra Sakni No. 13, Village Kalu Saral, New
Delhi, the boundaries may be read as under:
East :
House of Shri Rehmatullah West : Mosque and Gali North : Khasra Sakni No. 14
South : Gali Given under my hand and seal of my office this day 24-10- 1969.
Sd/-
M.L. Vij Managing Officer/Asstt. Custodian TO, Shri K.L. Anand, son of Shri Parshotam
Dass Shop No. 176, Vinay Nagar, New Delhi.
Copy
to: Sub-Registrar, Asaf
Ali Road, New Delhi.
(Managing
Officer) No. RSCD/MO(AUC)/PN/Kh.No. 14/Kalu Sarai/ D/5180 Govt. of India,
Ministry of Labour, Employment and Rehabilitation, Office of Regional
Settlement Commissioner (MW), Jamnagar House, New Delhi.
Corrigendum
25-10-1969 Subject:Regarding Khasra Sakni No.
14, Village Kalu Sarai, New
Delhi.
In the
certificate of sale executed on 26-9-1968 in favour of Shri K.L. Anand son of Shri Parshotam Das in respect of Khasra
Sakni No. 14, Village Kalu Sarai, New Delhi, the boundaries may be read as under:
East
House of Shri Wazu West Mosque and Gali North Agricultural land South Khasra Sakni
No. 13 Given under my hand and seal of my office this day of October 24, 1969.
Sd/-
M.L. Vij Managing Officer TO, Shri K.L. Anand, Shop No. 176, Vinay Nagar, New Delhi.
247 COPY
to: Sub-Registrar, Asaf
Ali Road, New Delhi.
(Managing
Officer)"
3.
Thus, the properties bearing Khasra Sakni Nos. 13 and 14 were confirmed in favour
of the respondent. Rehmatullah and Wazu challenged the said sales in WP No. 960
of 1969 in Delhi High Court contending that the properties sold pursuant to the
declaration of those properties being evacuee on 6-2-1956 were not, in fact,
correct; they had interest in the sold properties and that, therefore, the sale
made in favour of the respondent was illegal. The writ petition came to be
dismissed by the learned Single Judge which was affirmed by the Division Bench
in LPA No. 95 of 1978 by order dated 14-9-1982. That order had become final.
Therein,
though Nanu was impleaded as 5th respondent, no relief of any sort was claimed
against him nor any finding adverse to him in that behalf was recorded. In the
meanwhile, the respondent had filed Suit No. 270 of 1970 in the District Court,
Delhi, against Rehmatullah and Wazu for
possession of the properties bearing Khasra Sakni Nos. 13 and 14 as indicated
hereinbefore. Though the suit was dismissed, on appeal in RFA No. 305 of 1986,
the Division Bench of the Delhi High Court decreed the suit for possession and
the decree had become final.
4.Therefore,
now in execution, the respondent sought to take possession of the properties in
Khasra Sakni Nos. 13 and 14. Resisting the execution and delivery of
possession, the appellant made an application under Order 21, Rules 97 and 98
read with Section 151 of CPC contending that his father and members of his
family had not migrated to Pakistan though the Custodian had declared certain
ancestral properties to be evacuee properties of Munshi and Banda which were
later sold to the respondent under Khasra Sakni Nos. 13 and 14; Dr Anand has
obtained collusive decree against others; the land was not demarcated; the land
bears Khasra No. 179 and in accordance with the Chijra Akshi, it is in his
possession as an owner by virtue of his share in the ancestral property
separated by the competent authority which never vested in the Custodian nor
was it sold to the respondent.
5.The
executing court dismissed the application on the ground that the dispute was
adjudicated by the High Court in RFA No. 305 of 1986 and that, therefore, the
claim is no longer tenable. On revision, in the impugned order dated 11-7-1994, the learned Single Judge dismissed the revision
holding that the controversy was concluded in WP No. 960 of 1969 wherein the
appellant's father was arrayed as respondent and that, therefore, he cannot
make the objections. Hence this appeal.
6.The
question, therefore, is whether the executing court and the High Court had
properly appreciated the scheme under Order 21, Rule 97 and declined to
entertain and adjudicate the claim of the appellant?
7.
Order 21, Rules 97, 98, 100, 101, 103 and 104 provide thus:
248
"97.
Resistance or obstruction to possession of immovable property.- (1) Where the
holder of a decree for the possession of immovable property or the purchaser of
any such property sold in execution of a decree is resisted or obstructed by
any person in obtaining possession of the property, he may make an application
to the court complaining of such resistance or 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.
98.
Orders after adjudication.- (1) Upon the determination of the questions
referred to in Rule 101, the court shall, in accordance with such determination
and subject to the provisions of sub-rule (2);- (a) make an order allowing the
application and directing that the applicant be put into the possession of the
property or dismissing the application; or (b) pass such other order as, in the
circumstances of the case, it may deem fit.
(2)Where,
upon such determination, the court is satisfied that the resistance or
obstruction was occasioned without any just cause by the judgment-debtor or by
some other person at his instigation or on his behalf, or by any transferee,
where such transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into possession of the
property, and where the applicant is still resisted or obstructed in obtaining
possession, the court may also, at the instance of the applicant, order the
judgment-debtor or any person acting at his instigation or on his behalf, to be
detained in the civil prison for a term which may extend to thirty days.
100.
Order to be passed upon application complaining of dispossession.- Upon the
determination of the questions referred to in Rule 101, the court shall, in
accordance with such determination,- (a) make an order allowing the application
and directing that the applicant be put into the possession of the property or
dismissing the application; or (b) pass such other order as, in the
circumstances of the case, it may deem fit.
101.Question
to be determined.- All questions (including questions relating to right, title
or interest in the property) arising between the parties to a proceeding on an
application under Rule 97 or Rule 99 or their representatives, and relevant to
the adjudication of the application, shall be determined by the court dealing
with the application and not by a separate suit and for this purpose, the court
shall, notwithstanding anything to the contrary contained in any other law for
the time being in force, be deemed to have jurisdiction to decide such
questions.
249
103.
Orders to be treated as decrees.- Where any application has been adjudicated
upon under Rule 98 or Rule 100, the order made thereon shall have the same
force and be subject to the same conditions as to an appeal or otherwise as is
if it were a decree.
104.
Order under Rule 101 or Rule 103 to be subject to the result of pending suit.-
Every order made under Rule 101 or Rule 103 shall be subject to the result of
any suit that may be pending on the date of commencement of the proceeding in
which such order is made, if in such suit the party against whom tile order
under Rule 101 or Rule 103 is made has sought to establish a right which he
claims to the present possession of the property."
8.Thus,
the scheme of the Code clearly adumbrates that when an application has been
made under Order 21, Rule 97, the court is enjoined to adjudicate upon the
right, title and interest claimed in the property arising between the parties
to a proceeding or between the decree-holder and the person claiming
independent right, title or Interest in the immovable property and an order in
that behalf be made. The determination shall be conclusive between the parties
as if it was a decree subject to right of appeal and not a matter to be
agitated by a separate suit. In other words, no other proceedings were allowed
to be taken. It has to be remembered that preceding Civil Procedure Code
Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was
available which has been now taken away. By necessary implication, the
legislature relegated the parties to an adjudication of right, title or
interest in the immovable property under execution and finality has been
accorded to it. Thus, the scheme of the Code appears to be to put an end to the
protraction of the execution and to shorten the litigation between the parties
or persons claiming right, title and interest in the immovable property in
execution.
9.Adjudication
before execution is an efficacious remedy to prevent fraud, oppression, abuse
of the process of the court or miscarriage of justice. The object of law is to
mete out justice. Right to the right, title or interest of a party in the
immovable property is a substantive right.
But
the right to an adjudication of the dispute in that behalf is a procedural
right to which no one has a vested right. The faith of the people in the
efficacy of law is the saviour and succour for the sustenance of the rule of
law. Any weakening like in the judicial process would rip apart the edifice of
justice and create a feeling of disillusionment in the minds of the people of
the very law and courts. The rules of procedure have been devised as a channel
or a means to render substantive or at best substantial justice which is the
highest interest of man and almameter (sic) for the mankind. It is a foundation
for orderly human relations. Equally the judicial process should never become
an instrument of oppression or abuse or a means in the process of the court to
subvert justice. The court has, therefore, to 250 wisely evolve its process to
aid expeditious adjudication and would preserve the possession of the property
in the interregnum based on factual situation. Adjudication under Order 21,
Rules 98, 1 00 and 1 0 1 and its successive rules is sine qua non to a finality
of the adjudication of the right, title or interest in the immovable property
under execution.
10.The
question is whether the executing court was right in dismissing the application
on the ground that the dispute was adjudicated in RFA No. 305 of 1986 or as
held by the High Court that the dispute was decided in the writ proceedings
referred to earlier. The execution court is enjoined to adjudicate the claim or
the objection or the claim to resistance. As seen, Rule 97 enables such a
person to make an application which must be independent of the judgment-debtor
or a person having derivate right from the judgment-debtor. The applicant in
his own right must be in possession of the property. Admittedly, neither the
appellant nor his father was a party to the suit or appeal.
Therefore,
the decree per force does not bind him. In the writ proceedings, though Nanu
was impleaded as 5th respondent, no relief was claimed against him nor a
finding adverse to him has been recorded. Thereby, there is no adverse finding
recorded either in the suit or in the writ proceedings against the appellant or
his father. Under these circumstances, when the appellant has been claiming
right, title and interest in Khasra No. 179 from which he is now sought to be
dispossessed in execution of the decree by the respondent in respect of Khasra Sakni
Nos. 13 and 14, the executing court necessarily has to go into the question
whether the property in Khasra No. 179 is part of Khasra Sakni Nos. 13 and 14
and if so, whether the respondent while executing the decree trenched upon his
property and sought to dispossess him. The appellant's possession, pending
adjudication, needs to be protected by interim orders.
Unfortunately,
the courts below had not adverted to these crucial aspects of the matter. When
the appellant claimed independent right, title and interest and resisted the
execution, the decree-holder or the appellant should make an application under
Rule 97(1) and the court, in that event, is enjoined to adjudicate the claim
and record a finding, allowing or rejecting the claim. It should be remembered
that Parliament intended to shorten the litigation and to give effect to it, a
simplified procedure was devised for adjudication. On the basis of the fact
situation and the nature of the controversy, the claim has to be adjudicated
expeditiously in a period not exceeding six months and preferably on day to day
basis by putting an end to the tendentious conduct of prolonging the
proceedings by suitable orders.
11.The
orders of the courts below are accordingly set aside. The matter is remitted to
the executing court to go into the question raised by the appellant. In the
nature of the dispute, a Commissioner may be appointed by the court by issuing
a warrant to demarcate the respective properties in Khasra Sakni Nos. 13 and 14
and Khasra No. 179 as claimed 251 by the appellant, to find whether Khasra No.
179 is part of the Khasra Sakni Nos. 13 and 14 or independent of the latter.
From the averments in the SLP as well as in the petition filed before the
executing court, the appellant had not made any claim in respect of the Khasra Sakni
Nos. 13 and 14. Therefore, the question of going into the boundaries and the
extent of the land covered by sale certificates which have become final cannot
arise. As stated earlier, the only limited question is whether Khasra No. 179
is part of Khasra Sakni Nos. 13 and 14 and if not, whether in executing the
decree the respondent is entitled to take possession of Khasra Survey No. 179.
12.In
this view, it may be open to the respondent to make an application to the
executing court to appoint a Commissioner for demarcating the respective
properties and for submitting a report and plan in that behalf according to
rules. The executing court is directed to dispose of this application within a
period of six months from the date of the receipt of this order.
13.The
appeal is accordingly allowed, but in the circumstances without costs.
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