SRIMATI MALI BAI Vs. DEVENDER KUMAR MOOL CHAND

JUDGEMENT

(1.) THE present appeal filed by the appellant-original defendant arises out of the judgment and decree dated 8.7.2008, passed by Additional District Judge No. 1, Ajmer City, Ajmer,(hereinafter referred to as the appellate court), in Civil Appeal No. 99/2005, whereby the appellate court has dismissed the said appeal and confirmed the judgment and decree dated 22.1.2002, passed by the Additional Civil Judge(JD)Kishangarh, Ajmer, (hereinafter referred to as the trial court) in Civil Suit No. 181/93.

(2.) THE short facts, giving rise to the present appeal are that the respondent-plaintiff filed the suit against the appellant-defendant before the trial court seeking eviction of the Quarter No.21(hereinafter referred to as the suit premises),and seeking damages. It was alleged in the said suit that the respondent-plaintiff had purchased the suit property in the execution proceedings of a decree passed against one Mazdoor Vastra Utpadak Sahakari Samiti Ltd., (judgment-debtor, hereinafter referred to as "the Society ") and the sale certificate was also issued in that regard by the Executing Court in favour of the respondent-plaintiff on 5.10.1972. It was further alleged that the suit premises was allotted by the said Society to the appellant-defendant on hire purchase basis as she was the member of the Society. It was further alleged that pursuant to the order passed by the Executing Court in an application filed by the respondent-plaintiff, under Or. XXI Rule 96 C.P.C. for handing over symbolic possession of the suit premises, the respondent-plaintiff had given notice of attornment to the appellant-defendant, however, the appellant-defendant failed to attorn the plaintiff as the landlord and also failed to pay any rent in respect of the said premises. THE respondent-plaintiff again gave notice by registered post to the appellant defendant calling upon the appellant to attorn the plaintiff as landlord, which was replied to by the appellant-defendant claiming her title/ownership over the said premises. THE respondent-plaintiff, therefore, filed the suit against the appellant-defendant seeking possession of the suit premises, which was the Quarter No. 21 and also for recovery of damages.

(3.) THERE is also no substance in the submissions made by the learned counsel for the appellant that the respondent could not have filed the suit seeking recovery/possession,as all the questions were required to be decided by the Executing Court under Or. XXI Rule 101 of C.P.C. The appellant having failed to challenge the orders of the Executing Court, confirming the sale of the suit premises in favour of the respondent, issuing the sale certificate in favour of the respondent and handing over symbolic possession of the suit premises to the respondent, the appellant can not be permitted to challenge the legality and validity of said orders in the present suit proceedings filed by the respondent-plaintiff. It is also pertinent to note that Rule 101 of Or. XXI would come in to play where any application under Rule 97 or Rule 99 is filed by the objector. In the instant case, the Executing Court had handed over symbolic possession of the suit premises to the respondent in the application filed by the respondent under Rule 96 , and therefore, there was no occasion for the Executing Court to decide any question under Rule 101, on any application under Rule 97 or Rule 99 of O. XXI. As rightly submitted by Mr. Ranjan, the respondent having been handed over only the symbolic possession in respect of the suit premises, which was in possession of the appellant, the respondent had filed the separate suits for recovery of possession, against all such members of the Society, who were in possession of their respective part of the property of the said Society purchased by the respondent. The learned counsel for the appellant has also failed to point out any question of law much less substantial question of law involved in this appeal and therefore, also the present appeal does not deserve any consideration.