IMPORTANT POINT
Third parties can seek protection of possession under CPC provisions, and courts must follow due process in such applications.

JUDGMENT :

Alok Kumar Verma, J.

The respondent had instituted an Original Suit (O.S. No.76 of 1991, “Anirudh Kumar Vs. Jyoti Prasad and Others”), seeking decree of partition. The present appellants were not party to the said Suit. The Trial Court passed a preliminary decree on 16.12.2000. The respondent-plaintiff was declared the owner of 1/3 share in the land bearing Khasra No.1601. Keshaw Dutt and Others, the defendants of the said original suit, had filed a Civil Appeal (No.05 of 2001) against the judgment and decree dated 16.12.2000. On receipt of information about the said Appeal, an Application under Order I Rule 10 of the Code of Civil Procedure, 1908 was filed by the present appellants. The said Application was dismissed by the Appellate Court and the Civil Revision, filed by the present appellants, was also dismissed by this Court.

2. The respondent-plaintiff had filed an Application (Miscellaneous Case No.44 of 2001) to execute the judgment dated 16.12.2000. The present appellants had filed an Application under Order XXI Rule 99 CPC seeking dismissal of the said Miscellaneous Case No.44 of 2001. The said Application (Miscellaneous Case No. 07 of 2017) was dismissed. The appellants had filed a Civil Appeal (No.22 of 2018) against the order dated 08.02.2018, by which the said Miscellaneous Case No. 07 of 2017 was dismissed. The said Appeal has been dismissed by the learned Vth Additional District Judge, Haridwar vide judgment dated 25.07.2023.

3. The present Second Appeal has been admitted on the following substantial questions of law:-

(i) Whether an Application under Order 21 Rule 97- 99 CPC is not maintainable at the behest of a third party to protect his possession and before actually losing possession and his remedy is only to file an Application under Order 21 Rule 97-99 CPC after actually loosing possession?

(ii) Whether in the facts and circumstances of the case, the Application under Order 21 Rule 97-99 CPC could have been dismissed without adopting the procedure like a suit viz framing of issues and permitting the parties to lead evidence?

4. Heard Mr. Piyush Garg, learned counsel for appellants and Mr. Siddhartha Singh, learned counsel for respondent.

5. Mr. Piyush Garg, Advocate, contended that the appellants are the owner in possession of the Khasra No.1273 measuring 0.1330 hectare. The area of Khasra No.1601 is only 17 biswa i.e. 18785 square feet, however, the area of Khasra No.1601 was shown more than 35000 square feet in the said Original Suit No.76 of 1991. The respondent-plaintiff of Original Suit No.76 of 1991 malafidely sought to include the area of Khasra No.1273 also within the boundary of Khasra No.1601.

6. Mr. Piyush Garg, Advocate, submitted that the appellant has also filed a Civil Suit (Original Suit No.246 of 2015, “Upendra Kumar Vs. Shashikant Mishra and Ors.”) seeking prohibitory injunction in respect of the property bearing Khasra No.1273 measuring 0.1330 hectare and an interim injunction has been granted to the appellants in the said Original Suit No.246 of 2015. A survey report has also been filed in the said Original Suit No.246 of 2015.

7. Mr. Piyush Garg, Advocate, argued that the dismissal of an Application under Order I Rule 10 CPC does not disentitle the third party to file an Application under Order XXI Rule 97-99 CPC in case the cause of action arises for that purpose. In support of his submission, he has relied upon a judgment of the Hon’ble Supreme Court passed in “Bhogadi Kannababu and Others Vs. Vuggina Pydamma and Others, (2006) 5 SCC 532”.

8. Mr. Piyush Garg, Advocate, further contended that it was incumbent upon the learned Trial Court to first frame issues and then to permit the parties to lead evidence and then to decide the rights instead of dismissing the Application, filed under Order XXI Rule 97-99 summarily.

9. On the other hand, Mr. Siddhartha Singh, Advocate, argued that by the order of the court, the possession of the property-in-question has been taken by the respondent