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Madhya Pradesh High Court · body

2015 DAILYLAW 55 (MP)

Shobha Shinde v. Shushila Bai (dead) through LRs

2015-01-14

ROHIT ARYA

body2015
JUDGMENT 1. This appeal by objector under section 100 CPC is preferred against the concurring order dated 10.2.2005 in Miscellaneous Appeal No.49/2004 confirming the order dated 25.10.2004 in Case No.2A/90X04. The appellant-objector’s objection under Order XXI rules 97 and 104 and 105 CPC has been rejected. 2. The relevant facts necessary for disposal of this appeal are to the effect that respondent No.1 Smt. Shushilabai had filed a suit for eviction of tenant/respondent No.2 Ghanshyam s/o Parsadi and respondent No.3/sub-tenant-Sampatrao as landlady/owner of the suit premises on 25.4.1989. Tenancy started from 1.5.1986 between Smt. Shushila and Ganshyam, who unauthorizedly had sublet the same to respondent No.3. On notice, both respondents-defendants appeared and resisted the suit for eviction. Parties led evidence. The trial Court on proper evaluation of the evidence on record, decreed the suit under section 12(1)(a), (b) and (c) of the M.P. Accommodation Control Act on 9.11.2000 holding inter alia that respondent No.2 was tenant and respondent No.3 was sub-tenant inducted by respondent No.2 unauthorizedly and consequently decreed the suit for eviction of respondents No.2 and 3. First appeal preferred by both the respondents was dismissed on 30.4.2004. While the decree was put to execution, appellant Shobha Shinde wife of respondent No.3 Sampatrao; sub-tenant, filed an objection under Order XXI rule 97 CPC inter alia contending that the suit property was purchased by her from Parsadi father of respondent No.2 Ganshyam; tenant, on 24.4.1990. She being in possession of the suit property resisted the execution claiming that she is not bound by the decree for not being the party to the eviction suit. Trial Court rejected the objection as not maintainable in view of Order XXI rule 102 CPC as the alleged sale-deed dated 24.4.1990 in respect of the suit property was executed after institution of the suit of eviction in respect of the suit property on 25.4.1989. Being aggrieved thereby, the appellant filed miscellaneous appeal. The same was dismissed on 10.2.2005 against which the instant second appeal has arisen. 3. Few more facts relevant to be stated are to the effect that appellant-Shobha Shinde during pendency of aforesaid proceedings had also filed a Civil Suit No.4-A/2001 against respondent-Shushila; decree holder, for declaration of title based on the alleged sale deed dated 24.4.1990 on 19.3.2001. The civil suit was dismissed for want of prosecution on 30.1.2004. 3. Few more facts relevant to be stated are to the effect that appellant-Shobha Shinde during pendency of aforesaid proceedings had also filed a Civil Suit No.4-A/2001 against respondent-Shushila; decree holder, for declaration of title based on the alleged sale deed dated 24.4.1990 on 19.3.2001. The civil suit was dismissed for want of prosecution on 30.1.2004. The application under Order IX rule 9 CPC filed by her was rejected on 24.8.2004. With the aforesaid factual matrix on record the substantial question of law framed by this Court while admitting the appeal on 10.2.2009 is to the following effect : “Whether impugned order passed by the Courts below are sustainable in law in absence of enquiry contemplated under Order 21 rule 97 of CPC?” 4. Before adverting to the contentions advanced by the parties, it is considered apposite to refer to the judgment of Hon’ble Supreme Court in the case of Shreenath and another v. Rajesh and others [ (1998)4 SCC 543 ]. Factual matrix in the said case are that a suit for redemption of mortgage filed by A against B was decreed. Decree directed delivery of vacant possession of the mortgaged property to A. Objector C was not party to the suit, but was in possession of the suit shop as tenant from the year 1952, much before execution of the mortgage, which was in the year 1962. The objector C had resisted the execution of decree and for protection of his possession in the suit shop. He filed an application under Order XXI rule 97 CPC with the contention that the decree holder A cannot be delivered possession and only can be given symbolic possession. He further contended that he cannot be dispossessed in terms of the decree as neither was he party to the said suit nor did he derive any right and title through the judgment debtor. He claimed separate, independent legal right not affected either by the mortgage or redemption of mortgage. The aforesaid objection filed under Order XXI rule 97 CPC to the decree in execution was rejected in the light of the Full Bench decision of this Court in Usha Jain v. Manmohan Bajaj [ AIR 1980 M.P. 146 ]. He claimed separate, independent legal right not affected either by the mortgage or redemption of mortgage. The aforesaid objection filed under Order XXI rule 97 CPC to the decree in execution was rejected in the light of the Full Bench decision of this Court in Usha Jain v. Manmohan Bajaj [ AIR 1980 M.P. 146 ]. The Full Bench ruled as under : “The executing Court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree- holder/aution-purchaser under 0.21, rule 97. This rule is merely permissive and not mandatory so that the decree-holder/aution-purchaser not resort to it against his will and may even apply for fresh warrant under 0.21, R.35, CPC. Executing Court is not bound to stay its hands the moment a third party files an objection to the execution nor the stay would continue till an unwilling decree-holder/auction purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. If the executing Court were to stay its hands till investigation into a third party’s claim is not finally decided then it would result in depriving the decree-holder of his possession by filing repeated spurious claims. No enquiry into the title or possession of a third party is contemplated at any rate at his instance either under rules 35 and 36 or rules 95 and 96 of Order, 21, CPC when the decree-holder or the auction-purchase applies for obtaining possession. Subsequently when the decree-holder or auction-purchaser is met with obstruction or resistancee in obtaining possession, one of the options open to him is to apply under rule 97 but that provision is merely permissive and not mandatory and it is open to the decree-holder/auction-purchaser apply instead for a fresh warrant of possession. an enquiry at the instance of a third party in possession is contemplated only under 0.21, R100 after he was dispossessed and not before it. The omission by the executing Court to investigate into the objection filed by a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his title judicially investigated brief to his dispossession his only remedy then being under Order 21, rule 100 after dispossession. It cannot be said that he would have no remedy to protect his possession and have his title judicially investigated brief to his dispossession his only remedy then being under Order 21, rule 100 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injunction to protect his possession.” The Honb’le apex Court in the context of aforesaid facts examined the judgment of Full Bench. The apex Court has overruled the aforesaid judgment and while interpreting Order XXI rule 97 read with rule 101 CPC has held that words “any person” used in Order XXI rule 97 CPC includes all persons resisting delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. Therefore, at the instance of any person under Order XXI rule 97 CPC the decree for possession of immovable property can be resisted and questions as enumerated under rule 101 are required to be determined by the Court dealing with such an application and not by the separate suit. This judgment has also been followed in subsequent judgments in the case of Har Vilas v. Mahendra Nath and others [(2011)15 SCC 377]. 5. Relying upon the aforesaid judgments, learned counsel for the appellant contended that courts below have committed grave error of law and fact while rejecting the application under Order XXI rule 97 CPC, hence, the substantial question of law deserves to be answered in negative and in favour of appellant-objector. 6. Learned counsel for respondent No.1 supported the order passed by Courts below and prayed for dismissal of the appeal. 7. Heard counsel for parties. 8. The trial Court as well as first appellate court while rejecting the application under Order XXI Rule 97 CPC have recored findings as regards distinguishing features of the facts of the case to the following effect : (i) The suit for eviction and arrears of rent was filed on 24.4.1989 by Smt. Shushila; landlady, against tenant Ghanshyam and sub-tenant Sampat. (ii) On notice, Ghanshyam and Sampat have contested the suit. (iii) During pendency of the suit the objector Shobha Shinde filed suit and claimed to have purchased the suit property by a sale-deed dated 24.4.1990 from father of Ghanshyam, namely, Parsadi. (ii) On notice, Ghanshyam and Sampat have contested the suit. (iii) During pendency of the suit the objector Shobha Shinde filed suit and claimed to have purchased the suit property by a sale-deed dated 24.4.1990 from father of Ghanshyam, namely, Parsadi. (iv) The eviction suit was decreed on 9.11.2000 and confirmed by the first appellate Court on 30.4.2004. (v) The objector-appellant, though is wife of sub-tenant Sampat, never objected to the eviction proceedings on the strength of alleged sale-deed dated 24.4.1990 by filing appropriate application in the said suit. (vi) Even the sub-tenant did not raise the plea that his wife-Shobha Shinde has purchased the suit property on 24.4.1990 while Sampat and his wife Shobha Shinde with their family were residing in the suit premises, instead he participated in the suit and suffered a decree of eviction. (vii) Father of tenant Ghanshyam, respondent No.2, himself has been tendering rent and receiving the receipt of payment and has signed on the overleaf portion thereof. Those rent receipts have been proved in the eviction suit. Therefore, the person, who has tendered rent, obtained receipt and signed thereon, is claimed to have been the owner of the suit premises through whom the objector-appellant; wife of sub-tenant Sampat, claims to have purchased the suit property on 24.4.1990 subsequent to filing of suit on 25.4.1989. Suit filed by appellant for declaration was dismissed for want of prosecution on 30.1.2004. The application under Order IX rule 9 CPC was dismissed on 24.8.2004. No further steps were taken for restoration of suit. (viii) The trial Court in the eviction suit framed the issue; ‘as to whether the plaintiff is the owner and in possession of the suit house’, and answered the issue in favour of plaintiff. While answering said question the sale-deed dated 17.4.1986 executed in favour of plaintiff by its original owner Meharchand Jain and Smt. Ratanbai was also examined. The factum of ownership of the suit property has been discussed in detail in paras 10 and 11 of the trial Court order dated 9.11.2000 decreeing the suit for eviction. (ix) Nothing is on record to show source of title of Parsadi to the suit property to justify the alleged claim of sale by Parsadi in respect of suit property in favour of objector/appellant on 24.4.1990. (ix) Nothing is on record to show source of title of Parsadi to the suit property to justify the alleged claim of sale by Parsadi in respect of suit property in favour of objector/appellant on 24.4.1990. In view of the aforesaid facts on record the trial Court and the first appellate Court has found that in fact and in effect by force of Order XXI rule 102 the application filed under Order XXI rule 97 CPC was not maintainable. Order XXI rule 102 reads as under : “Order XXI : Execution of Decrees and Orders -- 102. Rules not applicable to transferee pendente lite -- Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation : In this rule, “transfer” includes a transfer by operation of law.” 9. With the aforesaid factual matrix on record both the Courts below have held that in fact the alleged objection under Order XXI rule 97 CPC is an outcome of collusion and connivance of original tenant Ghanshyam and sub-tenant Sampat with the objector-appellant; wife of sub-tenant Sampat, to scuttle the execution of decree of eviction obtained as far back as on 9.11.2000 when the suit for eviction was decreed under section 12(1)(a), (b) and (c) of the M.P. Accommodation Control Act. With the aforesaid conclusion, both the Courts below rejected the application under Order XXI rule 97 CPC. 10. With the aforesaid conclusion, both the Courts below rejected the application under Order XXI rule 97 CPC. 10. Having gone through the impugned orders of Courts below, this Court is of the view that the dictum laid down in Shreenath and another (supra), wherein while giving interpretation to words “any person”, as contained in Order XXI rule 97 CPC, the apex Court has held that all persons resisting possession and claiming right to the property of their own including stranger can maintain the objection and the said judgment is in context of objection under Order XXI rule 97 CPC by tenant in the suit shop resisting delivery of possession to a decree-holder in execution of a decree of redemption of mortgage on the premise that tenant was not party to the suit and tenancy had started about ten years before the execution of mortgage, therefore, the law declared by the Hon’ble Supreme Court as regards inclusive meaning to words “any person” used in Order XXI rule 97 CPC is required to be applied to bona fide objections to be raised under Order XXI rule 97 CPC by any person resisting delivery of possession to the decree-holder and to relieve him from filing a fresh suit seeking protection of possession. The law so declared by the apex Court cannot be pressed into service to rescue such objectors who in collusion and connivance with judgment-debtors raise the objection resisting delivery of possession to in fact and in effect protect the judgment-debtors and act as a shield against execution of decree for delivery of possession to the decree-holder. 11. Considering the facts in hand, it is apparent that the objector is none else than the wife of the judgment-debtor: a sub-tenant, who has suffered eviction decree in a suit filed against him, decreed and confirmed by the first appellate Court, the objector/wife since the date of institution of eviction proceedings i.e. 25.4.1989 had full knowledge of the eviction proceedings going on against her husband, wherein he was described as sub-tenant of the suit premises, but did not raise any objection during pendency of the proceedings either by becoming party to it or through her husband bringing on record the alleged claim of purchase of suit property by sale-deed dated 24.4.1990 and allowed the decree to be passed on 9.11.2000 confirmed by the first appellate Court on 30.4.2004. The title suit filed by objector-appellant on 19.4.2001 against respondent No.3 suffered dismissal on 30.1.2004 under Order IX rule 7 CPC. The application under Order IX rule 9 CPC filed by the objector/appellant for restoration of civil suit was dismissed on 24.8.2007, but no action was taken for revival of the suit. As late as on 22.6.2004 application under Order XXI rule 97 CPC was filed. Besides, the objector-appellant claims to have purchased the suit property from Parsadi, father of the original tenant Ghanshyam, who was having no title of the suit property, as the suit property was originally owned by Meharchand Jain and Smt. Ratanbai and by registered sale deed dated 17.4.1986 the same was transferred in the name of plaintiff. The fact of aforesaid sale-deed was very much there in the eviction proceedings as pleaded in the plaint, however, no dispute or denial to the aforesaid sale-deed was made, with the claim as regards alleged sale-deed dated 24.4.1990 in the eviction proceedings. That apart, Parsadi, the claimed vendor and father of original tenant Ghanshyam himself has been found to have tendered the rent, obtained receipt with acknowledgment on the overleaf portion thereof as held by the trial court in the judgment decreeing the eviction suit. As such, Parsadi; the claimed vendor, as well as the objector-appellant had full knowledge of eviction proceedings against original tenant Ghanshyam and sub-tenant Sampat, but no such claim as regards title to the suit property claimed on the strength of alleged sale-deed dated 24.4.1990 was made and as late as on 22.6.2004 the aforesaid claim is made by the objector only to scuttle the execution of decree of eviction against her husband; sub-tenant, and for delivery of possession. 12. The Hon’ble Supreme Court in the case of Nagubai Ammal and others v. B. Shama Rao and others [ AIR 1956 SC 593 ], has lucidly explained proceeding, which is collusive and one which is fraudulent. Relevant para thereof is reproduced herein below : “15. Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. “Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose”. (Wharton’s Law Lexicon, 14th Edition, page 212). Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. “Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose”. (Wharton’s Law Lexicon, 14th Edition, page 212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, -what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the Court in his favour and against his opponent by practising fraud on the Court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest....” 13. Now turning to the factual matrix in hand, what culls out from the record, the suit property was transferred to the respondent/landlady vide registered sale-deed dated 17.4.1986 by Meharchand Jain and Smt. Ratanbai and she accordingly held the title thereof. The fact of her ownership was well pleaded in the plaint. The issue as to whether the suit property is of the ownership of respondent-plaintiff has also been discussed well in detail by the trial Court and recorded positive findings in favour of plaintiff. The father of defendant No.1, who himself tendered the rent and also endorsed signature over the overleaf portion of the rent receipt and defendant No.1 having contested the suit on merits never brought on record the fact of alleged property being of the ownership of his father by placing the documents on record. That apart, the fact of alleged sale-deed in favour of the wife of defendant No.2 sub-tenant has never been brought on record during pendency of the suit or even in subsequent appellate proceedings. The appellant also never made any efforts to be impleaded in the suit proceedings with the aforesaid assertion of holding title of the suit property. That apart, the fact of alleged sale-deed in favour of the wife of defendant No.2 sub-tenant has never been brought on record during pendency of the suit or even in subsequent appellate proceedings. The appellant also never made any efforts to be impleaded in the suit proceedings with the aforesaid assertion of holding title of the suit property. The appellant being the wife of sub-tenant can definitely be presumed to have the knowledge of the eviction proceedings. That apart, even the suit allegedly filed by her on the strength of the alleged sale deed was dismissed for want of prosecution. An application for setting aside the same after having been dismissed, no further proceeding was undertaken to assail the same. These facts go to show that in fact the alleged sale deed was a sham transaction, only to obstruct or scuttle the execution proceedings initiated by respondent-plaintiff: a well calculated arrangement. The suit was fictitious, the contest over it was unreal and the decree sought to be procured was a mere mask to have symbolic determination and worn by the parties thereto with the object to confounding third party i.e. respondent-plaintiff. Therefore, it was a mere collusion between the two against the respondent-plaintiff. Under such circumstances, filing of application under Order XXI rule 97 CPC with the claim of title of the suit property in fact and in effect is based on mere sham transaction and apparent collusion between the appellant, tenant and sub-tenant to obstruct or scuttle the execution proceedings. 14. In view of the aforesaid facts and circumstances, in the opinion of this Court, such an objection raised by the appellant-objector do not merit consideration and has rightly been rejected by the Courts below. That apart, this Court is of the opinion that the Courts below were justified having applied rule 102 CPC to hold that even otherwise the objection under Order XXI rule 97 CPC was not maintainable as the suit for eviction was filed on 25.4.1989 and sale-deed is said to have been executed on 24.4.1990. That apart, suit for eviction was filed on 25.4.1989, decreed on 9.11.2000, still the decree-holder/plaintiff has not been able to reap the fruits of decree. Accordingly, the appeal sans merits and is hereby dismissed. ............