1. Dispossession of a third party during execution of a decree for specific performance — Application for restoration of possession under Order XXI Rules 98, 99, and 100, CPC. (Para 1 , 2 , 7 , 8 )
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2019 Supreme(SC) 2076
SUPREME COURT OF INDIA
Ashok Bhushan, Navin Sinha, JJ.
Shamsher Singh & Anr. - Appellants
Versus
Lt. Col. Nahar Singh (d) Thr. Lrs. & Ors. - Respondents
Civil Appeal No. 5632 of 2019 (Arising Out of SLP(C) No. 9665 of 2011)
Decided On : 29-07-2019
Advocates Appeared:
Mr. Joydeep Mazumdar, Advocate, Mr. Rohit Dutta, Advocate, Ms. Priyata Chakraborty, Advocate and Mr. Dipak Kumar Jena, Advocate, for the Appellant; M/S. Lex Regis Law Offices, Advocate
Mr. Joydeep Mazumdar, Advocate, Mr. Rohit Dutta, Advocate, Ms. Priyata Chakraborty, Advocate and Mr. Dipak Kumar Jena, Advocate, for the Appellant; M/S. Lex Regis Law Offices, Advocate
An applicant must establish their right, title, or interest in the property by adverse possession to be entitled to be put back into possession under Order XXI Rules 98, 99, and 100 CPC.
Headnote:
Adverse Possession - Execution of Decree - Order XXI Rules 98, 99 and 100 CPC - The court discussed the provisions of Order XXI Rules 98, 99, and 100 of the Code of Civil Procedure and the amendments made in 1976. The court emphasized that for putting back into possession, an applicant has to prove his right, title, or interest in the property. The judgment highlighted the difference in the legislative scheme before and after the 1976 amendment and emphasized the need for establishing right, title, or interest in the property for being put back in possession.
Fact of the Case:
The case involved a dispute over possession of a property originally owned by Tarapada Dutta. The respondent claimed possession of the property on the basis of adverse possession after being dispossessed by the decree holders in execution of a decree for specific performance of contract.
Finding of the Court:
The court found that the respondent failed to prove his right, title, or interest in the property by way of adverse possession. The Executing Court rightly rejected the application of the respondent under Order XXI Rules 98, 99, and 100 CPC, and the High Court erred in allowing the appeal and directing the respondent to be put back into possession.
Issues: The key issue was whether the respondent had established his right, title, or interest in the property by way of adverse possession, and whether he was entitled to be put back into possession under Order XXI Rules 98, 99, and 100 CPC.
Ratio Decidendi: The court emphasized that the respondent was obliged to establish his title to the property by adverse possession for being put back into possession. The amendments made in Order XXI Rules 97 to 103 by the Code of Civil Procedure (Amendment) Act, 1976 were discussed, and it was highlighted that all issues between the parties in the application under Order XXI Rules 99, 100, and 101 need to be examined and decided by the trial court.
Final Decision: The appeal was allowed, and the judgment of the High Court was set aside, restoring the order of the Executing Court dated 10.08.2004. Each party was directed to bear their own costs.
Legal Category Hierarchy
Table of Contents
2. Whether restoration of possession under Order XXI Rules 99 and 100 requires proof of right, title, or interest, or merely proof of prior possession. (Para 4 , 5 )
3. The 1976 Amendment to Order XXI Rule 101 mandates the executing court to determine all questions relating to right, title, or interest to resolve disputes conclusively. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 )
4. Under Order XXI Rule 101 CPC, an applicant seeking restoration of possession must establish their right, title, or interest; mere proof of prior possession is insufficient. (Para 16 , 17 , 28 )
5. Appeal allowed — High Court judgment set aside — Order of the Executing Court rejecting the application for restoration of possession restored. (Para 29 )
6. What is the effect of the 1976 Amendment on Order XXI Rule 101 of the CPC?
The amendment shifted the focus from restoring a bona fide claimant based on possession to requiring the executing court to determine all questions, including those relating to right, title, or interest in the property, to avoid the need for separate suits. (Para 10 , 11 , 13 , 14 , 16 )
7. Is proof of prior possession sufficient for restoration of possession under Order XXI Rules 99 and 100?
No. Following the 1976 Amendment, an applicant cannot be restored to possession by simply proving they were in possession prior to dispossession; they must establish their right, title, or interest in the property. (Para 16 , 17 , 28 )
8. How are orders passed under Order XXI Rules 98 or 100 treated after the 1976 Amendment?
Under the amended Rule 103, any order made upon an application adjudicated under Rule 98 or 100 has the same force and is subject to the same conditions as if it were a decree. (Para 15 , 26 )
9. Can a third party resist a decree of execution by seeking adjudication under Order XXI Rule 97?
Yes, Order XXI Rule 97 is wide enough to include any person, including strangers or tenants not bound by the decree, who may seek adjudication of their independent rights within the execution proceedings. (Para 21 , 22 )
JUDGMENT
Ashok Bhushan, J. - This appeal has been filed against the Division Bench Judgment of Calcutta High Court in FMA No. 720 of 2005, by which the appeal filed by the respondent No.1 has been allowed setting aside the order of Executing Court dated 10.08.2004 rejecting the application filed by respondent No. 1 under Order XXI Rules 98, 99 and 100 of the Code of Civil Procedure (hereinafter referred to as "CPC").
2. Brief facts of the case giving rise to this appeal are:-
2.1 One Tarapada Dutta owned premises No.15, Sahanagar Road, P.S. Tollygunge, Calcutta. An agreement for sale was executed by Anadi Dutt, who claimed to be son of Tarapada Dutta in favour of Rajvindar Singh in respect of 4 Kh. 4 Ch. and 00 sf t. of land and structures at premises No.15. Another agreement for sale was entered by Anadi Dutt with Shamsher Singh in respect of 4 Kh. 6 Ch. and 6 Sft. of land and structures of premises No.15.
2.2 The respondent had filed a T.S. No.211 of 1990 before the 3 rd Munsif at Alipore praying for decree of declaration of his right with regard to premises in question on the basis of adverse possession.
2.3 Anadi Dutt having not executed the sale deed in pursuance of agreement for sale dated 07.05.1990, two title suits being Suit No.50 of 1994 and 51 of 1994 were filed by Rajvindar Singh and Shamsher Singh, which were decreed ex-parte on 20.12.1994. In pursuance of decree of the Court, two separate Deeds of Conveyance were executed in favour of Dayal Singh (Nominee of Rajvindar Singh) and in favour of Shamsher Singh. Decree holders filed two execution cases vide Execution no. T.Ex. No.09 of 1995 and T.Ex. No. 10 of 1995 seeking delivery of possession of the suit property. First Time Court Bailiff could not succeed in delivering possession, however, subsequently the Court Bailiff with the help of police delivered Khas vacant possession of the suit premises to the Decree Holder on 12.04.1996.
2.4 After lapse of 30 days, respondent No.1 filed two Misc. cases Nos. 10 of 1996 and 11 of 1996 against Rajvindar Singh, Shamsher Singh, Dayal Singh and Asis Dutt under Order XXI Rules 98, 99 and 100 CPC before the 6 th Assistant District Judge, Alipore. In the said two Misc. cases, respondent No.1 claimed that his father Sardar Iqbal Singh was the occupier and was running his business under the name and style as Public Transport Business in the suit premises and after his death, respondent No.1 has been running a business under the name and style of Ex-Service United Coal Enterprise (P) Ltd. In the above said Misc. Case No. 10 of 1996, the respondent No.1 claimed that Anadi Dutt was not the son of Tarapada and it was Asis Kumar Dutt, who was the only son, owner and only legal heir of Late Tarapada. It was also claimed that a T.S. No.211 of 1990 was pending before 3 rd Munsiff at Alipore filed by respondent No.1, in which he claimed right and title of the suit premises on the basis of adverse possession. It was further claimed that Shamsher Singh, Rajvindar Singh and Dayal Singh had fraudulently obtained decree in collusion with Anadi Dutt and has evicted the respondent No.1 from the suit property.
2.5 In Misc. proceeding application, although, the respondent No.1 has impleaded Asis Kumar Dutt but he neither contested the Misc. application nor challenged the title of Anadi Dutt, against whom an ex-parte decree was passed. On 21.01.1999, Dayal Singh also got a deed of conveyance executed in his favour by Asis Kumar Dutt, alleged true legal heir of the Late Tarapada Dutta. Dayal Singh got his name mutated in Kolkata Municipal Corporation.
2.6 The Executing Court by order dated 10.08.2004 rejected Misc. Case No. 10 of 1996 and Misc. Case No. 11 of 1996 filed by respondent No.1. Trial court held that respondent No.1 failed to prove that he has acquired title by way of adverse possession. Against the order dated 10.08.2004 rejecting the Misc. applications filed by respondent No.1, first appeal, FMA No. 720 of 2005 was filed by respondent No
