The main legal point established in the judgment is the requirement to establish possession and the admissibility of evidence under Order XXI, Rule 97, C.P.C. in cases of execution of decrees.

JUDGMENT :

Surya Prakash Kesarwani, J.

1. Heard Sri Ajay Kumar Singh, learned counsel for the applicant-revisionist-petitioner and Sri Rahul Sahai, learned counsel for the plaintiff-decree holder-respondent No. 1.

2. Briefly stated facts of the present case are that House No. C.K. 1/13, Patni Tola, Bhosale Mandir, Ward Chowk, City Varanasi (hereinafter referred to as 'the disputed property'), was owned by Raje Raghuji Rao A. Bhosale son of late Raja Ajit Singh A. Bhosale, Mahal Nagpur (Maharashtra). The petitioner claims that one Vishwanath Pandey (Power of Attorney of the aforesaid Raje Raghuji A. Bhosale) executed an unregistered agreement to sell dated 15.5.2013 in favour of the petitioner to sell the aforesaid disputed property. However, a registered lease deed dated 25.6.2014 was executed by the aforesaid Raje Raghuji Bhosale through his power of attorney Vishwanath Pandey in favour of the plaintiff-decree holder-respondent No. 1 on accepting a premium of Rs.24,00,000 and monthly rent of Rs. 200. Lease rent Rs. 6,00,000 was received in advance to be adjustable towards the monthly rent. As per Clause 5 of the lease deed, the aforesaid owner of the disputed building/lessor put in actual physical possession to the plaintiff-decree holder-respondent No. 1. Thereafter, the plaintiff-decree holder-respondent No. 1 filed S.C.C. Suit No. 18 of 2015 for eviction of the defendant-judgment debtor/respondent Nos. 2 and 3.

3. In the aforesaid S.C.C. Suit No. 18 of 2015, petitioner herein filed an impleadment application under Order I, Rule 10, C.P.C. on the ground that he has an unregistered agreement to sell in his favour with respect to the disputed property, and therefore, he is a necessary party. This application being paper No. 22-Ga was rejected by the Judge, Small Cause Court by order dated 23.12.2015. This order has attained finality. In the meantime, the petitioner herein also filed Suit No. 1190 of 2015 seeking various relief’s including injunction and declaratory relief. The plaint was rejected by the Civil Judge (S.D.), Varanasi by order dated 18.2.2016 due to non-payment of appropriate court fees and not amending the valuation. Thereafter, the petitioner herein filed First Appeal No. 170 of 2016 praying to set aside the aforesaid judgment and order of the Civil Judge (S.D.), Varanasi, dated 18.2.2016. The first appeal was disposed of by a Division Bench of this court by order dated 20.4.2016 and the judgment and order dated 18.2.2016 passed by Civil Judge (S.D.), Varanasi, rejecting the plaint, was upheld. But liberty was granted to the petitioner herein to file a fresh suit. This court specifically asked learned counsel for the petitioner herein as to whether any suit has been filed pursuant to the liberty granted by the Division Bench? In reply, learned counsel for the petitioner herein stated that no suit has been filed by the petitioner.

4. The aforesaid S.C.C. Suit No. 18 of 2015 [M/s. Avantika Agro Services Pvt. Ltd. v. Chandrabhan and Padma Devi) filed by the respondent No. 1 for eviction of tenants (respondent Nos. 2 and 3) was decreed by judgment dated 19.5.2016. The defendant-respondent Nos. 2 and 3 herein, were directed to be evicted. Therefore, the plaintiff-decree holder-respondent No. 1 filed Execution Case No. 8 of 2016. In the aforesaid execution case, the petitioner herein filed an application under Order XXI, Rule 97, C.P.C. claiming himself to be in possession of the disputed property on the basis of the aforesaid unregistered agreement to sell dated 15.5.2013. The aforesaid application being paper No. 4-Ga was registered as Misc. Case No. 96 of 2018. It was rejected by the Judge, Small Cause Court, Varanasi by the impugned order dated 10.12.2018 on the ground that no evidence could be produced by the petitioner to show that he is in possession of the disputed room of the disputed property on the basis of unregistered agreement to sell and that unregistered agreement to sell is not even admissible in evidenc