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IN THE HIGH COURT OF ORISSA
Misra, J.
RAJENDRA NARAYAN DAS AND OTHERS - APPELLANT
Versus
MINATUNNISA BIBI - RESPONDENT
Civil Revision No. 178 of 1965
Decided On : 26-04-1966
POSSESSION - RESTORATION - ORDER 21, RULES 100 AND 101, CPC - APPLICANT IN POSSESSION ON DATE OF DELIVERY OF POSSESSION - ENTITLED TO BE RESTORED TO POSSESSION - APPLICANT IN POSSESSION OF UNDIVIDED SHARE - ENTITLED TO BE RESTORED TO ACTUAL PHYSICAL POSSESSION OF ENTIRE PROPERTY - DECREE-HOLDER ENTITLED TO JOINT POSSESSION OF UNDIVIDED SHARE - TO BE EFFECTED BY SYMBOLICAL DELIVERY OF POSSESSION.
Fact of the Case:
Petitioners filed a suit for partition of joint family properties including a disputed house. During the pendency of the suit, Rajkrushna, one of the co-owners, sold the disputed house to Bharat Industrial Bank. The bank was impleaded as a party to the partition suit. The suit was dismissed by the trial court, but on appeal, a preliminary decree for partition was passed. Rajkrushna then entered into an agreement for sale of the disputed house with the opposite party. The opposite party filed an application under Order 21, Rule 58, CPC, which was dismissed. She then filed a suit under Order 21, Rule 63, CPC, which was also dismissed. The opposite party then took a sale deed from Rajkrushna and filed a suit for recovery of possession, which was decreed on terms of compromise. The Petitioners filed an application under Order 21, Rule 100, CPC, claiming restoration of possession, which was allowed by the trial court. The opposite party filed a revision petition against this order.
Finding of the Court:
The court held that the Petitioners were entitled to be restored to possession of the entire disputed house, as they were in exclusive possession on the date of delivery of possession. The court further held that the opposite party was entitled to joint possession of an undivided half share in the disputed house, which could be effected by symbolical delivery of possession.
Issues: Whether the Petitioners were entitled to be restored to possession of the entire disputed house.
Ratio Decidendi: The court held that the Petitioners were entitled to be restored to possession of the entire disputed house, as they were in exclusive possession on the date of delivery of possession. The court further held that the opposite party was entitled to joint possession of an undivided half share in the disputed house, which could be effected by symbolical delivery of possession. The court relied on the provisions of Order 21, Rules 100 and 101, CPC, and the decisions in Govinda Nair v. Kesavan, Radha Gobinda Missir v. Raghnnath Missir, Indubhushan Das Vs. Haricharan Mandal, Chhaterdhari Mahto and Others Vs. Nasib Singh and Others, and Pera Naidu and Another Vs. Soundaravalli Ammal.
Final Decision: The court set aside the order of the trial court and remanded the case for a finding on the question of possession on the date of delivery of possession. The court directed that if the Petitioners were found to be in possession on that date, they should be restored to physical possession of the entire house. If Rajkrushna was found to be in possession on that date, the Petitioners' application under Order 21, Rule 100, CPC, would be allowed in the manner indicated in the impugned order, i.e., they would be put into joint possession which would be symbolical one.
JUDGMENT :
Misra, J. - One Balakrushna Das had 2 sons, deceased Girish Chandra Das and Rajkrushna Das. The five Petitioners are the sons of Girish Chandra. On 12th of August, 1946, the Petitioners filed T.S. No. 32 of 1946 in the Court of Subordinate Judge, Cuttack for partition of all their joint family properties including the disputed house which is situate in Choudhury Bazar in Cuttack town claiming - /8/ - annas interest in the entire property. On 30th of October, 1946, Rajkrushna sold the entire disputed house to Bharat Industrial Bank which was impleaded as a party to the partition suit. The suit was dismissed by the Additional Subordinate Judge on 22nd of December, 1948. On 5-7-1955, the First Appeal No. 18 of 1949 filed by the Petitioners was allowed and a preliminary decree for partition was passed. It may incidentally be stated that the judgment of the be High Court was confirmed by the Supreme Court on 7-5-1964 dismissing Rajkrushna's appeal No final decree has yet been passed. During the pendency of the First Appeal, Rajkrushna entered into an agreement for sale 24-4-1951 in respect of the disputed house with Minatunnisa Bibi (Opposite party). It may be noted that Rajkrushna had no interest by that time as he had sold the house to' Bharat Industrial Bank on 30-10-1946. Sometime in 1951, one Sridhar Panigrahi in execution of a decree against the Bharat Industrial Bank brought to sale -/8/ - annas interest in the disputed house. The opposite party filed an application under Order 21, Rule 58, CPC on 1-2-1954 on the basis of the agreement for sale dated 24-4-1951. This application was dismiss on 3-2-1954. On 22-5-1954, opposite party filed T.S. No. 18/37 of 1957/54 in the Court of the Subordinate Judge, Cuttack under Order 21, Rule 63, CPC Code. In that suit, Sridhar Panigrahi, Bharat Industrial Bank and Rajkrushna were made parties. Petitioners were, however, not made parties to the suit. On 22-6-1954, the opposite party took a sale deed from Rajkrushna in accordance with the agreement dated 24-4-1951. T.S. NO',18/.37 of 1957 /54 ws dismissed on 0-1-1958.F. No. 43 of 1958 filed by Opposite party ended In a compare on 13-12-1961. Under the compare Bharat Industrial Bank and Sridhar Panigrahi abandoned their claim to the disputed house in favour of the opposite party on payment of certain amount. As the Petitioners were not parties to the suit, they were also not parties to the compare. On 22-2-1962, the opposite party filed T.S. 16 of 1962 against Rajkrushna for recovery of possession. This suit was decreed on terms of compare on 16-4-1962. The Petitioners assert that they were forcibly dispossessed from the entire disputed house which was in exclusive possession of themselves and their tenants in execution of the aforesaid decree on 1-6-1'3(12. They filed miscellaneous Case No. 106 of 1962 on 19-6-1962 under Order 21, Rule 100, CPC Code. The tenants also filed certain miscellaneous Cases which do not constitute the subject matter of this application. The learned Subordinate Judge allowed the application under Order 21, Rule 100, CPC with the following direction:
The claimants Rajendra Narayan Das and others in miscellaneous Case No. 106 of 1962 shall be put in joint possession of their house in respect of their -/8/ - annas share in the manner provided in Order 2, Rule 35(2), CPC Code.
It is against this order that the Petitioners have filed this civil revision.
2. Mr. Mohapatra for the Petitioners contents that the Petitioners were in exclusive possession of the disputed house through themselves and through the tenants and that though Rajkrushna had -/8/ - annas interest in the disputed house, he not being in physical possession of any portion of the house, the opposite party was entitled to symbolic possession under Order 21, Rule 35(2), CPC in execution of the decree in T.S. No. 16/62 and that the Petitioner was entitled to be restored to the possession of the entire house under Order 21, Rules 100 and 101, CPC Code.
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