IMPORTANT POINT
Joint tenants cannot be dispossessed without due process, and their rights devolve upon the death of the original tenant.

JUDGMENT :

Kshitij Shailendra, J.

1. The appeal is listed for admission under Order 41 Rule 11 C.P.C.

2. Heard Sri M.D. Singh Shekhar, learned Senior Counsel, assisted by Sri Vaibhav Goswami, for the appellant and Sri Bhanu Bhushan Jauhari, learned counsel for the respondent.

3. The instant second appeal arises out of adjudication of an application under Order 21 Rule 97 CPC filed by the appellant, that has been rejected by the Executing Court against which a regular civil appeal was filed, which has also been dismissed.

CONTENTION OF APPELLANT

4. Learned Senior Counsel appearing for the appellant submits that an Original Suit No. 323 of 1977 was filed by the respondent against one Prem Chandra claiming a decree for ejectment on the plea of tenancy of the defendant. The said suit was decreed by the trial court and Civil Appeal No. 139 of 1986 arising therefrom was dismissed. The defendant-Prem Chandra filed Second Appeal No.444 of 1996 which is pending before this Court. In so far as the present appellant is concerned, he was plaintiff no.2 in another Original Suit No.216 of 1996 (Nattho Devi and another Vs. Dr. Aditya Kumar Sharma) that was instituted claiming a decree for injunction restraining the defendant from interfering in possession of the plaintiffs and from dispossessing them except in accordance with law. The trial court dismissed the said suit, however, Civil Appeal No.104 of 2000 was allowed and, consequently, the suit was decreed. Second Appeal No.891 of 2002 filed by the defendant-Dr. Aditya Kumar Sharma has recently been dismissed as withdrawn by order dated 09.09.2024 and, therefore, according to Sri Shekhar, the decree has attained finality and, hence, the respondent cannot dispossess the appellant except in accordance with law.

5. As regards the judgments and decrees impugned in the instant second appeal, it is contended by Sri Shekhar that the same have been passed in execution proceedings arising out of a decree drawn against his real brother Prem Chandra in Original Suit No.323 of 1977 in which the appellant was not a party and, hence, he cannot be dispossessed from the property, particularly when he has his own independent decree against the respondent, as drawn in Original Suit No. 216 of 1996. It is further contended that when the first appellate court, at an earlier point of time, dismissed the Civil Appeal No.130 of 2013 against the order dated 06.07.2013 by which the application under Order 21 Rule 97 CPC had been rejected by the executing court, the appellant filed Second Appeal No.88 of 2014 before this Court which was allowed by order dated 06.02.2014 and it was held that the appellant having raised an independent right in the property, rejection of his objections under Order 21 Rule 97 CPC on the ground of rejection of objections filed by the judgment debtor under Section 47 CPC, was unjustified. Further submission is that the title of respondent having been dislodged in separate proceedings arising from Original Suit No.309 of 1998, he otherwise cannot dispossess the appellant. Sri Shekhar also referred to the written statement filed by the respondent in Original Suit No.216 of 1996 where he did not recognize the appellant herein as tenant in the property but asserted tenancy rights only in Prem Chandra. The submission, therefore, is that the respondent being bound by his admission, he cannot dispossess the appellant in a proceeding launched against the tenant Prem Chandra and, hence, the impugned judgments and decrees are unsustainable.

6. In support of his submissions on the point that a person, may be a trespasser, cannot be dispossessed except through due process of law, learned Senior Counsel for the appellant has placed reliance upon following authorities:-

(i) Atma Prakash Vs. Raghubir Prasad Goel: 1996 (1) JCLR 622 All); and

(ii) Krishna Ram Mahale (dead) by his LRs., Vs. Mrs. Shobha Venkat Rao: AIR 1989 SC 2097.

CONTENTION OF RESPONDENT

7. Per contra, Sri Bhanu Bhushan Jauhari, learned counsel fo