1 2026:CGHC:13282 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 718 of 2018 Rajendra Katiyar S/o Chhotelal Katiyar Aged About 63 Years R/o Baikunthpur,raigarh, Tahsil And District Raigarh, Chhattisgarh. ...........Defendant., District : Raigarh, Chhattisgarh ... Appellant versus Tikam Prasad Mishra S/o Degreelal Mishra Aged About 60 Years Occupation Retired, R/o Baikunthpur, Raigarh, Tahsil And District Raigarh, Chhattisgarh. ..........Plainti*., District : Raigarh, Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For Appellant : Shri Harishankar Patel, Advocate. For Respondent : Shri Anurag Agrawal & Shri Md. Ruhul Ameen, Advocates on behalf of Shri Abhijeet Mishra, Advocate Hon'ble Justice Shri Bibhu Datta Guru Judgment on Board SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2026.03.20 10:27:04 +0530 2 19.03.2026 1. The instant appeal has been preferred by the appellant/defendant against the judgment and decree dated 08.02.2018 passed by the Second Additional District Judge Raigarh in Civil Appeal No. 46/2017 (Tikam Prasad Mishra v. Rajendra Katiyar) arising out of order dated 28.10.2017 passed by the First Civil Judge Class-II, Raigarh in Execution case No. 53A/2013. 2. The plainti* <led a suit for eviction and arrears of rent in respect of house constructed on Khasra No. 182 area 0.396 Hectare situated at P.H. No 13 Mohalla Baikunthpur, Tahsil- Baikunthpur, District Koriya (C.G.). 3. The case of the plainti* before the trial Court was that he is the landlord and the defendant is the tenant of the suit property. Monthly rent of Rs. 75/-. The defendant failed to pay the rent. Despite several request made by the plainti* for vacating the premises, the defendant failed to vacate the same. Hence the suit <led by the plainti*. 4. The defendant submitted a written statement and denied relationship of landlord & tenant and has speci<cally deposed that he has constructed house over the nazul plot and the 3 respondent is not owner of the property. 5. After hearing the parties, leaned trial Court decreed the suit bearing No.53-A/94 on the ground that the plainti* is the owner of the property, although he has failed to prove relationship of landlord tenant. Against the same the defendant <led the civil appeal wherein the judgment and decree of the trial Court has been aCrmed by the appellate Court by judgment and decree dated 19.09.1997 passed in Civil Appeal No. 8-A/96. 6. Thereagainst the defendant approached this Court by <ling Second Appeal No. 86/98, which was admitted on the following substantial question of law:- (i) Whether the decree passed by the lower appellate Court can be sustained in the eyes of law in view of its "nding that there was no relationship of land lord and tenant? (ii) Whether the lower appellate Court was wrong in treating the suit based on relationship of landlord and tenant as a suit based on title? 7. Subsequently after hearing the parties this Court allowed the appeal <led by the defendant by judgment dated 07.11.2012. 4 In the said judgment this Court observed as under: 7. Undisputedly, suit was for eviction on the basis of landlord & tenant relationship. The respondent has "led suit on the ground that he was landlord and the appellant was tenant. Inter alia, possession of the appellant was permissive in nature. But he has failed to prove such relation or nature of possession. In absence of any contra pleading by the respondent, the appellant was not under obligation to plead the nature of his possession or he has disputed the identity of accommodation and right and ownership of the respondent. In absence of any claim or pleading of dispossession/eviction from the suit property on the basis of any right and cause other than the relationship of landlord & tenant, both the Courts below have committed illegality by decreeing the suit for possession on the ground of title. 8. Undisputedly, it is not the title suit and that was a summary suit for eviction. In case of summary suit for eviction, parties were not under obligation to prove or dispute the title and the Court was also not 5 under obligation to decide the title of the parties. Therefore, by decreeing the suit on the basis of title not claimed or "led by the respondent without claim of relief and pleading, both the Courts below have committed illegality. 9. Consequently, substantial question of law No.(i) is decided as negative and No.(ii) is decided as positive. 10. On the basis of decision on the substantial questions of law formulated for the decision of this appeal, the appeal deserves to be allowed and it is hereby allowed. Judgments & decrees passed by both the Courts below are hereby set aside. Parties shall bear the cost of this appeal. 8. Subsequently the defendant <led the Execution case before the learned trial Court and in the said proceedings the plainti* failed to appear and as such by order dated 25.07.2014, the learned trial Court proceeded ex-parte proceedings against the plainti*. The plainti* <led the application under Section 151 of CPC for setting aside the ex-parte proceeding and vide order dated 24.11.2016, the learned trial Court set aside the ex-parte proceeding and thereafter on appreciating the 6 contentions raised by the parties vide order dated 28.10.2017 passed in Execution Case No. 53A/94 has ordered for issuance of possession warrant in favour of the defendant. 9. Being aggrieved by the said order, the plainti* preferred an appeal before the learned <rst appellate Court, who vide the impugned judgment and decree dated 08.02.2018 has set aside the order dated 28.10.2017 holding therein that the same has been passed contrary to law, as the respondent had never <led any application under Section 144 CPC for restitution, yet the Trial Court erroneously granted such relief by treating an application under Order 21 Rule 11 CPC as one under Section 144 CPC, which is impermissible. It was further found that possession of the suit house had already been delivered to the plainti* on 12/04/1996 in execution proceedings, and thereafter the property was validly sold in 1998 to a third-party purchaser who obtained vacant and lawful possession and continues to occupy the same; hence, restoration of possession to the defendant is not legally possible, particularly in absence of any landlord–tenant relationship with the present owner. The Court also observed that the High Court vide judgment dated 07/11/2012 merely 7 set aside the earlier decree and did not direct restoration of possession, and therefore not executable for restitution purposes. In view of these <ndings, the learned Appellate Court allowed the appeal and set aside the order passed by the learned Executing Court. Hence this appeal <led by the defendant. 10. (a) Learned counsel for the appellant/defendant submits that the impugned judgment and decree dated 08.02.2018 passed by the learned appellate court is wholly illegal, perverse and contrary to the material available on record, and is therefore liable to be set aside. It is contended that the appellate court has erred in setting aside the well-reasoned order passed in execution proceedings, without proper appreciation of facts and law. The <nding that the suit property had been sold by the plainti* to Bhupeshwar Prasad Pandey vide sale deed dated 22.07.1998 is also assailed as erroneous, as the said sale deed is alleged to be forged and fabricated, and merely an eye wash, with no actual transfer of possession having taken place. (b) It is further submitted that the appellate court failed to consider that during pendency of the second appeal, no 8 objection regarding such alleged sale was ever raised by the plainti*, and moreover, in view of the protection order dated 29.01.1998 passed by this Court, any subsequent sale is null and void ab initio. It is also argued that the appellate court has committed a serious error in holding that the judgment and decree dated 07.11.2012 passed by this Court is not executable, despite the fact that the said order e*ectively set aside the earlier decree, thereby entitling the appellant to restoration of possession. Thus, it is contended that the <ndings recorded by the appellate court are perverse, illegal and unsustainable in law, and the same deserve to be quashed, restoring the judgment and decree passed by the trial court. 11. On the other hand learned counsel for the respondent/plainti* would support the impugned judgment and decree. He would submit that after appreciating the entire facts and circumstances of the case in its true perspective the appellate Court has rightly passed the judgment and decree, which warrants no interference of this Court. 9 12. I have heard learned counsel appearing for the parties and perused the material available on record. 13. Having heard learned counsel for the parties and perused the record, this Court <nds that the impugned judgment and decree dated 08.02.2018 passed by the learned appellate court does not su*er from any illegality or perversity. The appellate court has rightly held that no application under Section 144 CPC was <led by the plainti* for restitution, and therefore, the executing Court committed an error in granting such relief by treating an application under Order 21 Rule 11 CPC as one under Section 144 CPC. 14. It is further evident from the record that possession of the suit property had already been delivered in execution proceedings in the year 1996 and thereafter the property was transferred to a third party by registered sale deed dated 22.07.1998, who is in possession of the property. In such circumstances, restoration of possession is not legally feasible, particularly in absence of any subsisting relationship between the parties. The appellate court has also correctly appreciated that the judgment dated 07.11.2012 passed by this Court merely set aside the earlier decrees and did not 10 direct restoration of possession, and therefore, the same was not executable for the purpose of restitution. 15. The <ndings recorded by the appellate court are based on proper appreciation of facts and law and cannot be said to be perverse or contrary to the record. No substantial question of law arises for consideration in this appeal. 16. Accordingly, the present Second Appeal, being devoid of merit, is hereby dismissed. SD/- (Bibhu Datta Guru) Judge Shoaib