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1965 Supreme(Pat) 96
PATNA HIGH COURT
Anant Singh, J.
Abdul Gafoor
Versus
Wahidan Bibi
Civil Revision No. 502 of 1963 ;
Decided On : SEPTEMBER 13, 1965
In a claim case under Order XXI, Rule 58, C. P. C., the court's decision must be based on possession, not merely on interest in the property.
Headnote:
ORDER XXI, RULE 58, C. P. C. - CLAIM CASE - POSSESSION - INTEREST - JURISDICTION - SALE DEED - MONEY ORDER RECEIPTS - RES JUDICATA - ADDITION OF PARTY - INHERENT JURISDICTION - REVISION APPLICATION - LIMITATION - The court's decision in a claim case under Order XXI, Rule 58, C. P. C. must be based on possession, not merely on interest in the property. The court erred in allowing the claim without considering the question of possession.
Fact of the Case:
The case arose from an execution proceeding where the judgment debtors' wives filed a claim under Order XXI, Rule 58, C. P. C., asserting their ownership of the house in dispute based on a sale deed executed by the minor son of the original owner. The decree holders, who purchased the house from the original owner's son, challenged the validity of the sale deed and claimed possession of the house.
Finding of the Court:
The court held that the trial court erred in allowing the claim without considering the question of possession. The court found that the claimants failed to establish their possession of the house and that the sale deed was executed after the judgment debtors had acknowledged the decree holders' title in their written statement in the original suit. The court also held that the money order receipts, showing payment of rent by the judgment debtors to the claimants, were created to lend color to the claim.
Issues: 1. Whether the court erred in allowing the claim without considering the question of possession? 2. Whether the claimants established their possession of the house? 3. Whether the sale deed executed by the minor son of the original owner was valid? 4. Whether the money order receipts, showing payment of rent by the judgment debtors to the claimants, were genuine?
Ratio Decidendi: 1. The court's decision in a claim case under Order XXI, Rule 58, C. P. C. must be based on possession, not merely on interest in the property. The court erred in allowing the claim without considering the question of possession. 2. The claimants failed to establish their possession of the house. 3. The sale deed executed by the minor son of the original owner was not valid as it was executed after the judgment debtors had acknowledged the decree holders' title in their written statement in the original suit. 4. The money order receipts, showing payment of rent by the judgment debtors to the claimants, were created to lend color to the claim.
Final Decision: The court set aside the impugned order of the trial court and allowed the revision application with costs.
Anant Singh, J.
1. This application in revision is directed against an order dated the 6th February 1963, passed by the Additional Munsif of Dhanbad in Miscellaneous Case No. 35 of 1962 filed in Execution Case No. 47 of 1961 whereby the claim of the three opposite parties under Order 21, Rule 58 of the Code of Civil Procedure has been allowed.
2. The execution case arose out of a decree passed in Title Suit No. 27 of 1959 filed by two persons, Abdul Gafoor and Tahir Hussain, and the suit was filed under the Bihar Buildings (Lease, Rent and Eviction) Control Act for the eviction from a house of the three tenants, Nurul Hussain, Md. Yunus and Akbar Hussain, who are respectively the husbands of Mosst. Wahidan Bibi (opposite party No. 1), Mosst. Asiban Bibi (opposite party No. 2) and Mosst. Jubcdan Khatoon (opposite party No. 3). The house in respect of which the eviction suit was filed is situate in the town of Jharia and bears plot No, 2455 under Khata No. 433. It formerly belonged to one Ishfak Hussain who, according to the plaintiffs in the suit, had given the whole house by a will to his only surviving son Md. Qayum. After Ishafaks death, the house devolved upon Md. Qayum, and it is said that the two plaintiffs purchased the whole house from Md. Qayum by a registered sale deed on 29-7-1957. At that time, the house was in possession of the three husbands of the three opposite parties as tenants from the time of Md. Qayum.
On notice by the plaintiffs, the three tenants vacated half portion of the house on the north, but they continued possessing the southern half, saying that they would vacate it later. Since, however, they did not vacate that portion of the house, the aforesaid title suit was filed on 5-3-1959 for their eviction on various grounds. The three tenants-defendants filed written statements on 24-6-1959 acknowledging the plaintiffs as their landlords in respect of the house. But they had resisted the plaintiffs claim for eviction on other grounds. On 15-7-1960, the tenants-defendants filed an additional written statement with an averment that their wives had since purchased the whole house by a registered sale deed dated 8-6-1960 executed by Abu Muhammad as guardian for his minor son Matiur Rahman, son of one Sueba Khatun, who was stated to be the daughter of Ishfak Hussain to whom the house had first belonged. It was pleaded that on the death of Ishfak Hussain, there was a private partition between the surviving son Md. Qayum and his daughter Sueba Khatun, and the whole house was allotted to Sueba Khatun as a result thereof, and that Md. Qayum had no interest in the house. There was, however, an order made in the title suit for depositing the arrears of rent under Sec.11(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act.
The deposit having not been made, the defence of the tenants-defendants was struck off. The three opposite party also filed an application in the suit to be impleaded as parties, but their prayer was rejected on 19-6-1961. They came up in revision to the High Court in "Civil Revn. No. 283 of 1961 (Pat), but that was also dismissed. The suit was eventually decreed in favour of both the plaintiffs on 4-8-1961 making an order for eviction of the three tenants defendants. The decree was then put in execution by both the plaintiffs-decree holders. There was an objection filed under Sec. 47 of the Code of Civil Procedure by the three judgment debtors that the decree was not executable. But that was also dismissed on 21-7-1962. It was thereafter that the present claim case under Order 21, Rule 58 was filed by the present opposite parties on 20-8-1962. Their claim is that the alleged predecessor-in-interest, Md. Qayum, of the decree-holders had no interest or share in the house since on the death of Ishafak Hussain, as a result of private partition between Md. Qayum on the one hand and Sueba Khatun the surviving daughter of Ishfak on the other, the whole house fell to her share, and
