Court No. - 10
Case :- MATTERS UNDER ARTICLE 227 No. - 9866 of 2019
Petitioner :- Prakash Chand
Respondent :- Shanker Singh And 61 Others Counsel for Petitioner :- Rama Goel Bansal,Manish Kumar Nigam
Counsel for Respondent :- Raghwendra Prasad Mishra
Hon'ble Mrs. Sangeeta Chandra,J.
(1) Vakalatnama filed today by Shri Ishir Sripat, on behalf of the Respondent nos.2/2 and 3/2 is taken on record. Supplementary affidavit filed today is also taken on record.
(2) Heard Shri Manish Kumar Nigam, counsel for the petitioner assisted by Smt. Rama Goel Bansal, and Shri Rahul Sripat assisted by Mr. Ishir Sripat for the Respondent nos.2/2 and 3/2 and Mr. A.N. Tripathi, assisted by Shri R.P. Mishra, for the Respondent nos.1/1 to 1/3.
(3) The petitioner has challenged the order dated 18.11.2019 passed by the learned Civil Judge (Junior Division), Chhata, District Mathura, in Execution Case No.1 of 2012 and the order dated 12.12.2019 passed by the learned District Judge, Mathura, in Civil Revision No.127 of 2019.
(4) It has been submitted by the learned counsel for the petitioner that a Suit was filed for eviction of one Ram Prakash Son of Faggumal Punjabi, by Late Shanker Singh, the respondent no.1 (now deceased). The Suit was allowed by the learned Trial Court by an order dated 10.11.1980, the defendants to the Suit including the petitioner who claimed Title from the Defendant no.1 filed a First Appeal which Appeal was allowed by the order dated 23.02.1992 and the Original Suit was dismissed with the observation by the learned Trial Court that the plaintiff could not establish his Title over the property in question, therefore, there was no question of giving a decree for eviction of the tenants.
(5) Aggrieved by the order dated 23.02.1982, two Second Appeals were filed before this Court; one against the present petitioner and the another against Ram Prakash, the defendant no.1 to the Original Suit. These Second Appeal Nos.1690 of 1982 and 1693 of 1982, were clubbed together and heard by this Court and were disposed of on the basis of a compromise entered into between the original plaintiffs and the original defendant no.1 Ram Prakash, thus prejudicing the petitioner.
(6) The judgment and order dated 17.05.2012 passed by the High Court was challenged in Special Leave Petition before the Hon'ble Supreme Court by the petitioner in which notices were issued and further proceedings were stayed by the order dated 06.08.2012. The Special Leave Petition was later on, dismissed on 13.10.2015 by making an observation that the Suit filed by the petitioner against the defendant no.1 be decided on its own merits. The Suit that the Hon'ble Supreme Court was referring in its order dated 13.10.2015 had been filed by the petitioner seeking a decree for permanent injunction against Ram Prakash numbered as Original Suit No.456 of 1985. The learned Trial Court in Original Suit No. 456 of 1985 had passed an interim injunction which interim injunction was confirmed on 06.09.1995 was to continue till further orders. When the respondent nos.1 to 4 claiming through the original plaintiff filed the Execution Proceedings, the petitioner filed an Application under Order 21 Rule 29 before the Executing Court.
(7) The Order 21 Rule 29 has been read out by the learned counsel for the petitioner before this Court which is being quoted hereinbelow:-
"29. Stay of execution suit between decree-holder and judgement, debtor--Where a suit is pending in any Court against the holder of a decree of such Court (or of a decree which is being executed by such Court), on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided:
[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.]"
(8) It has been submitted by the learned counsel for the petitioner that the Executing Court rejected the application of the petitioner without application of mind only on the ground that the High Court had made an observation in the matter under Article 227 No.1316 of 2019 [Om Prakash Vs. Civil Judge (Junior Division), Mathura]. The order has been passed on 26.03.2019 directing the Executing Court to decide the Execution case expeditiously.
(9) The petitioner being aggrieved filed a Civil Revision which Civil Revision has been dismissed by the learned Additional District Judge, Court No.3, Mathura, by the order impugned again without application of mind and arbitrary, only referring to the order passed by the Hon'ble Supreme Court on 13.10.2015 dismissing his Special Leave Petition No.21389-21390/2012 observing that the Supreme Court had made no observation with regard to the stay of Execution Proceedings till the disposal of Original Suit No.456 of 1985.
(10) Learned counsel for the respondents nos.1/1 to 1/3, 2/2 and 3/2 have submitted before this Court that the Executing Court had passed a well reasoned order by observing that once the Suit was decreed and the Appellate Court in First Appeal had set aside the decree by making certain observations in the judgment and order dated 23.02.1982. Such observations regarding the ownership of the property in question could not be said to be existing as on date as the order passed by the Appellate Court has been set aside by this Court in its judgment and order dated 17.05.2012 in Second Appeal No.1690-1693/1982.
(11) Since the Supreme Court did not find any merit in the Special Leave Petition filed by the petitioner, it was dismissed. It may have been argued by the learned counsel for the petitioner before the Supreme Court that an Original Suit regarding the same property is pending since 1985, and therefore, the observation of the Hon'ble Supreme Court in its order dated 13.10.2015 could only be said to be taken in the context in which the submission was made before it regarding the pendency of the said Suit for the past 30 years before the Trial Court.
(12) Learned counsel for the respondents has also read out the observations made by the High Court in its judgment and order dated 17.05.2012 in Second Appeal Nos.1690-1693 of 1982. The Court has framed the substantial questions of law and thereafter, considered the said questions mainly Question no.E in great detail and held that the defendant no.1 who was the original tenant Ram Prakash, could have transferred a Title better than what he actually possessed to the defendants nos.2 to 5 (one of them being the petitioner herein). The observations made by the High Court in its judgment and order dated 17.05.2012 are being quoted hereinbelow:-
"Questions posed as question Nos. No. (a), (b), (c) and (e) are substantial questions of law."
The said questions are quoted below:
"(a) Whether in the instant case, Paper No.84-ga was proved and could be relied upon?
(b) Whether the aforesaid Paper No.84-ga was inadmissible in evidence for want of registration?
(c) Whether the notice under Section 106 of Transfer of Property Act sent on behalf of the appellants only was invalid?
(e) Whether the respondents No.2 to 6 being licensee and respondents No.7 & 8 being sub-tenants were liable to ejectment?"
The questions of law are word by word identical in both the appeals.
Defendants respondents No.2 to 5 set up the case that they had purchased superstructure from defendant No.1. Defendant No.1 was admittedly the tenant. If defendants No.2 to 5 are held to be licencees of defendant No.1 they are bound to be evicted under the decree against the defendant No.1 and they cannot prevent defendant No.1 from entering into compromise with the plaintiffs. Firstly defendant No.1 could not transfer a better title to defendants No.2 to 5 than what he himself had got. Secondly, defendants No.2 to 5 merely by purchasing malwa cannot claim any right over the land beneath the superstructure merely on the basis of purchase of malwa.
The case taken up by the defendants No.2 to 5 was that in fact they were owners hence just to end/ settle the dispute they purchased superstructure which had been raised by defendant No.1 and resumed the land beneath the superstructures as true owner/ paramount title holder. Firstly, defendants No.2 to 5 have not been able to establish their ownership title/ paramount title. Secondly, defendant No.1 did not admit or attorn in the paramount title of defendants No.2 to 5. There is not even an allegation by defendants No.2 to 5 that defendant No.1 admitted them or attorned in their favour as true owner/ paramount title holder. Defendant No.1 was in possession of the property which he had taken from town area since March, 1964. Defendants No.2 to 5 did not assert any right or title for a very long period. Litigation against town area and defendant No.1 was also initiated by the plaintiff.
Under certain circumstances a person who has forcibly been evicted may forcibly take back the possession from the trespasser before the trespasser has matured his title on the basis of prescription. However, in the instant case neither there is any such allegation nor evidence. When defendants No.2 to 5 purchased the superstructure from defendant No.1 it clearly amounted to their admission of the right of defendant No.1 which he had driven from the plaintiffs. There is no such allegation that defendant No.1 while transferring the superstructure to defendants No.2 to 5 also delivered possession of the land beneath that admitting the defendants No.2 to 5 to be the owners of the same. Even if it is so, still it will not confer any right upon defendants No.2 to 5 as they had no clear title. There is no such allegation that there was any threat of eviction of defendant No.1 by defendants No.2 to 5.
The Supreme Court in Vashudeo Vs. Bal Kishan, AIR 2002 SC 569 has discussed in detail the theory of paramount title holder and attornment of tenancy in his favour by the tenant. Para-12 of the said authority is quoted below:
"12. To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence."
The said authority was followed in Om Prakash Gupta Vs.
R.B. Goyal, AIR 2002 SC 665, para-9 of which is quoted below:
"9. In Vashu Dev's case (supra) the landlord-owner of the tenancy premises was a Trust. The Trust had let out the premises to a tenant and the tenant had inducted a sub-tenant in the premises. The Trust had instituted a suit for eviction against the tenant subsequent to the institution of the suit by tenant against sub-tenant claiming arrears of rent and eviction of the latter. Immediately on institutions of suit by the principal owner, i.e. the Trust, the sub-tenant had voluntarily attorned in favour of the principal owner and without the consent of the tenant. Suit by the principal owner against the tenant was still pending. This Court noticed the provisions of local rent control law whereunder entitlement of the tenant to hold the suit premises as tenant would not come to an end unless a decree for eviction against him was passed by a court of law in a suit for eviction institution by the principal owner against the tenant and then held-'till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondent-tenant does not have any defence nor can he lawfully resist the suit filed by the owner Trust. The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent, in possession of the premises in view of the latter's entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end. The plea of eviction by paramount title is not available to the appellant for three reasons; firstly, it cannot be said that the Trust is armed with a legal process for eviction which cannot be lawfully resisted by the tenant-respondent or to which he has no defence; secondly, the attornment by the appellant in favour of the Trust is voluntary and not under any compulsion; and thirdly, it cannot be said that the Trust has such good and present title against the tenant-respondent so as to hold the appellant liable to be evicted against his will."
Accordingly, the argument that after purchasing malwa defendants No.2 to 5 resumed possession as owner is utterly fallacious. They cannot claim any independent title hence they cannot question compromise between plaintiffs and defendant No.1 As defendant No.1 has entered into compromise with plaintiffs, hence questions No.(a), (b) and (c) do not require decision.
As far as question No.(e) is concerned, in view of the above discussion and in view of legal position that a licensee and a sub-tenant, both are liable under the decree against the main tenant, it is decided in favour of the appellants. Accordingly, both the appeals are allowed on the basis of compromise against defendant No.1 and on merit against the other defendants. Judgment and decrees passed by the lower appellate court are set aside and the decree passed by the trial court is restored."
(emphasis supplied)."
(13) This Court has perused the order passed by the learned Executing Court, it had referred to an order passed by the High Court on 26.03.2019 in a matter under Article 227 No.1316/2019 Om Prakash Vs. Civil Judge (Supra). It appears that initially the Om Prakash had filed one matter under Article 227 No.6122 of 2016 which was disposed of by this Court on 26.08.2016, with a direction to the learned Civil Judge (Junior Division), Chhata, to decide the Execution Case No.1 of 2012 most expeditiously, preferably within a period of one year from the date of production of certified copy of the order before the court below, in accordance with law, after hearing the parties, without granting unnecessary adjournments to either of the parties, in case the Proceedings the aforesaid case is not stayed by any Court. The Proceedings of the Execution Case were not stayed by any Competent Court but they were not being decided, therefore, Om Prakash again approached this Court in a matter under Article 227 No.1316 of 2019 as aforesaid.
This Court asked for a report from the Presiding Officer of the Execution Court on 26.02.2019. In the comments sent by the Presiding Officer, it was mentioned that he had only recently be taken over charge as Civil Judge (Junior Division), and that he was making serious effort to decide the Execution case in compliance of the directions issued by this Court earlier on 26.08.2016. This Court disposed of the petition on 26.03.2019 directing the Presiding Officer to make all efforts to decide the Execution Case expeditiously and after Execution case is decided he was to submit a report to the Court through Registrar General in respect of complaints made by him.
(14) Although Shri Manish Kumar Nigam, has said before this Court, thereafter he has filed a Recall Application against the judgment and order dated 26.03.2019 he has not stated before this Court that he has made any such application for Recall of the original direction issued by this Court on 26.08.2016, in earlier matter under Article 227 No.6122 of 2016 filed by Om Prakash.
(15) Learned Trial Court while disposing of the application made by the petitioner under Order 21 Rule 29 of the CPC has observed that it is the discretion of the Executing Court to also allow such an application which has to be exercised in the facts and circumstances of the case, and it was evident from the facts and circumstances of the case that the decree dated 10.11.1980 passed in Original Suit No. 25 of 1974 (Shanker Singh Vs. Ram Prakash) had been affirmed by the High Court orders dated 17.05.2012, and by the dismissal of the Special Leave Petition by the Supreme Court on 13.10.2015. In such facts and circumstances of the case, there was no good reason to continue to adjourn the matter till the Original Suit No.456 of 1985 was decided.
(16) The Revisional Court after referring to the Limited jurisdiction it exercised under Section 115 of the C.P.C. also referred to the judgment of the Hon'ble Supreme Court in AIR 1982 SCC 686 (Krishna Vs. Mathura) that an application under Order 21 Rule 29 of the CPC can be considered against the decree holder after taking into account the circumstances of the case, and keeping in mind that the decree holder is not deprived of the benefit of the decree unnecessarily.
(17) This Court finds no legal infirmity in the order impugned in this petition to show any interference. Since this Court has repeatedly passed the orders on 26.08.2016 and 26.03.2019 directing the Executing Court to decide the matter at the earliest. It is expected that the Executing Court shall proceed with the matter with all expedition at its command so that the benefit of the decree dated 10.11.1980 in Original Suit No.25 of 1974 can be given to the legal heirs and representatives of the original plaintiff.
(18) The petition is dismissed. Order Date :- 18.12.2019 PAL