JASBIR SINGH Vs. JIYORJINA CHIU

JUDGEMENT

(1.) THIS is a case where a landlord even after winning from the Hon'ble Supreme Court could not get possession of the premises in question and now has been dragged to the Court by another person. The Hon'ble Supreme Court in the matter of Maria Margarida Sequeria Femandes and Others Vs. Erasmo Jack de Sequeria (dead) through L.Rs., ( : 2012 (2) ARC 325), observed in the following manner:

(2.) FACTS giving rise to the present revision are that a Small Cause Suit was instituted by one Km. Patricia Francis against Shri Ghanshyam Dogra before the Court of Judge Small Cause Court/District Judge, Dehradun, for his eviction and recovery of rent, which was registered as SCC Suit No. 53 of 1990 "Km. Patricia Francis Vs. Ghanshyam Dogra". In the said suit, it was alleged that Shri Ghanshyam Dogra was the tenant in premises in question and after terminating his tenancy, suit for eviction was filed. On the other hand, Shri Ghanshyam Dogra denied relationship of landlord and tenant. Vide judgment and decree dated 27.07.2004, the learned Judge SCC/District Judge, Dehradun dismissed SCC Suit No. 53 of 1990. Km. Patricia Francis, feeling aggrieved from the judgment and decree dated 27.07.2004, filed Civil Revision No. 50 of 2004 before this Court. In the meantime, Km. Patricia Francis passed away and was substituted by her legal representatives. This Court allowed Civil Revision No. 50 of 2004 on 06.04.2010 and set aside the judgment and decree dated 27.07.2004, and decreed SCC Suit No. 53 of 1990 in favour of landlord, directing eviction of tenant Ghanshyam Dogra. Against the said judgment, Shri Ghanshyam Dogra preferred Special Leave Petition No. 17086 of 2010 before the Hon'ble Supreme Court and the same was dismissed summarily vide order dated 05.08.2011. Shri Ghanshyam Dogra thereafter, preferred review petition for reviewing the judgment and decree dated 06.04.2010 before this Court. Same was dismissed on 01.09.2011 against which Special Leave Petition was preferred before Hon'ble Supreme Court, which also met the same fate and consequently, was dismissed vide order dated 08.11.2011. Thereafter, decree holder filed Execution Case No. 1 of 2011 "Jiyorjina Chiu Vs. Ghanshyam Dogra" before the Court of Judge SCC/District Judge, Dehradun, in which notices were issued and thereafter, execution proceeded. On 15.02.2012, revisionist came to know about filing of the aforesaid SCC Execution Case when in the absence of revisionist some person from the Court came to his property and thereafter, he made inquiries by engaging a counsel who on 15.02.2012 inspected the file of execution case and came to know about the proceedings of SCC Suit No. 53 of 1990, its decision, judgment of this Court and orders of the Hon'ble Supreme Court. It is alleged that at that moment, revisionist came to know about filing of the proceedings and its contest by Sri Ghanshyam Dogra, his real brother and till then he was not having any knowledge of the aforesaid proceedings. Thereafter, the revisionist filed his objections under Order 21 Rule 97 Code of Civil Procedure 1908 read with Section 17 of Provincial Small Cause Court Act 1887 before the Court of Judge SCC/District Judge, Dehradun against Execution Case No. 1 of 2011, which was registered as SCC Misc. Case 1 of 2012 "Jasbir Singh Vs. Jiyorjina Chiu". Revisionist contended before the Court below that his father initially took the premises in question on rent for 11 months from Smt. Maryle Francis through her attorney holder Smt. Patricia Francis and on 22.10.1987, his father Babu Ram vacated the premises under his tenancy. On 01.01.1989, revisionist's father Sri Babu Ram, well within the knowledge of Smt. Maryle Francis and her sister attorney holder Smt. Patricia Francis, entered into property in question as owner against the wishes of Smt. Maryle Francis and Patricia Francis well within the knowledge of entire world and maintained his possession and during his life time, no proceedings were initiated for his eviction by Smt. Maryle Francis and he perfected his title over the property in question by way of adverse possession. Revisionist was residing in the premises in question with his father and after his death on 11.10.2003, revisionist became the owner of the property in question. Revisionist brother Ghanshyam Dogra was not residing in premises in question and was not the tenant and he was residing in THDC, Dehradun and he was in collusion with decree holder and was having strained relationship with him because of which he colluded with decree holder and consequently, prayed that it may be declared that decree passed in SCC suit No. 53/1990 is not binding upon him and cannot be executed against him.

(3.) MR . Neeraj Garg, Advocate for the revisionist submitted that the impugned judgment and decree dated 18.05.2012 passed by learned District Judge, Dehradun is not according to law, since he dismissed the objection filed by the revisionist without framing point for determination which was mandatory requirement by SCC Court prior to passing a judgment, amounting to a decree, the impugned judgment and decree is not a judgment within the meaning of Section 2(9) of Code of Civil Procedure and neither the decree within the meaning of Section 2(2) Code of Civil Procedure. He argued that the impugned judgment and decree is wholly without jurisdiction and not according to law, inasmuch as, while dismissing the objections under Order 21 Rule 97 C.P.C. of revisionist, it was imperative on the part of learned Court below to have recorded a specific finding on the point that revisionist/objector have no independent right or title over the property in question and he stands under the shoes of judgment debtor and is claiming his right through judgment debtor and as such, decree is binding upon him, inasmuch as, against the judgment debtor. In the absence of such specific finding, impugned judgment and decree is illegal and without jurisdiction. He argued that objection under Order 21 Rule 97 are a substitute for a suit and legislature in its wisdom while incorporating amendments in Code of Civil Procedure 1908 in the year 1976 keeping in mind the multiplicity of litigation by filing separate suit by a third party claiming his right over property, inserted the provision that objections under Order 21 Rule 97 will amount to a suit, it will be tried as a suit and its adjudication will amount to a decree. He submitted that bare perusal of Order 21 Rule 97, 98, 99, 100, 101, 102 & 103 of the aforesaid provisions reveals that a person in possession of a decree can object the execution of a decree by filing objection under Order 21 Rule 97 C.P.C. He submitted that the Hon'ble Supreme Court in the case of Srinath Vs. Rajesh, reported in, AIR 1998 Supreme Court weekly page 1619, Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal & another, reported in, AIR 1987 Supreme Court weekly 685, Tanzeem -E -Sufia Vs. B.B. Haliman and others, reported in : 2002 (3) Civil Court Cases page 391 and Orissa High Court in case of Sasmita Pattnaik & others Vs. Sunanda Patnaik, reported in, 2009 (4) Civil Court Cases page 793, clarified the intention and import of provisions of Order 21 Rule 97 CPC and held that it is not necessary that a person after losing possession can only maintain the objections under Order 21 Rule 97, but he can file the same being in possession stating that he is claiming his right independent irrespective of that of judgment debtor and the Court is bound to adjudicate the same. Objections filed under Order 21 Rule 97 leads to an adjudication which is being done under Rule 101 of Order 21 in which all questions including question relating to right, title or interest in the property arising between the parties to proceedings and relevant to the adjudication of the application shall be determined by the Court and the Court shall be deemed to have jurisdiction to decide such question. Order 21 Rule 103 reveals that an adjudication/determination done by the Court on objections filed under Order 21 Rule 97 C.P.C., under Order 21 Rule 101 C.P.C., have the same force as if it were a decree and subject to the same condition as to an appeal. He submitted that from a bare perusal of provisions of Order 21 Rule 97 to 103 C.P.C., a clear legal position emerges out that objection under Order 21 Rule 97 are a substitute for a suit and are to be tried as a suit and determination made thereon amounts to a decree. For the purpose of adjudication and determination, it is incumbent upon the Court dealing with the objection under Order 21 Rule 97 C.P.C. to frame point for determination if adjudicating Court is a SCC Court, and issues in case adjudication Court is original civil Court. But the fact remains that adjudication has to be made after framing point for determination. He further submitted that the legal position is further clarified from reading the definition of judgment given in Section 2(9) C.P.C. and definition of decree given Section 2(2) C.P.C. He submitted that from perusal of the definition of judgment, it reveals that judgment means statement given by a Judge on grounds of decree or order and decree means formal expression of adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy.