Heard learned counsel for the petitioner and learned counsel for the respondent-landlord. By order dated 17.1.2019, service of summons upon respondent no.2 was dispensed with, as counsel for the parties agreed that in the instant petition, the contest is not with respondent no.2 but only with respondent no.1.
The brief facts are that Shri Krishna (since deceased) filed an application under Section 21 (1) (a) of U.P. Act No.13 of 1972 against Ram Naresh seeking release of a house alleged to be in his tenancy. The release application was allowed on basis of a compromise dated 18.12.2012. In the compromise, respondent no.2 admitted the need of Shri Krishna, the landlord (deceased) as pressing and bonafide and agreed to vacate the premises within 15 days from the date of compromise. The Prescribed Authority passed an order deciding the release application in terms of the compromise on the same date. The landlord filed an application under Section 23 for execution of the release order asserting that respondent no.2, despite having agreed to vacate the demised premises within 15 days under the compromise, had failed to vacate the same, therefore, possession be delivered to him through police force by executing the release order. It seems that in the said proceedings, writ of possession was issued for being executed with the aid of police force.
The specific case of the petitioner, who is real brother of Ram Naresh, is that in fact it is he, who is in possession of the demised premises and that his brother had not been in possession of the same. He had built his own house at Rae Bareilly and is residing there alongwith his family. It was also his specific case that initially his father Late Bulaki was tenant. The original owner of the premises Birju died issue-less. He executed a Will in favour of his father but since it was an unregistered Will, therefore, the Municipal authorities declined to mutate his name on basis of the said Will. He also pleaded that Gauri Shanker Verma, who has allegedly sold the disputed premises to the landlord, was not heir of Late Birju nor had any right to sell the property. The petitioner was also not served with any notice regarding purchase of the disputed house by the respondent-landlord. The petitioner is on enimical terms with his brother. His brother colluded with the landlord and entered into a compromise with him. Accordingly, he applied for recall of the release order dated 18.12.2012. The application filed by the petitioner purporting to be under Order 9 Rule 13 read with Section 151 CPC has been rejected by impugned order dated 10.2.2014 on the ground that a person not party to the proceedings cannot maintain such an application. It was followed by orders 31.10.2013 and 15.2.2014 issuing writ of possession and for delivery of possession to the landlord by breaking open the locks of the premises.
Learned counsel for the petitioner submitted that the release order was obtained by respondent no.1 in collusion with respondent no.2, who, in fact was not occupying the premises on the date of filing of the release application. He has referred to the written statement filed by respondent no.2 in which he admitted that he had not been living in the disputed house from some times back and also the fact that his other brothers and their families are living in the same. It is urged that from the above stand taken in written statement, it is apparent that the release order obtained on basis of compromise, without the petitioner being brought on record, was a result of fraud and collusion. The Prescribed Authority should have allowed the application filed by the petitioner in exercise of power under Section 151 CPC. It is also urged that the objection filed by the petitioner would amount to resistance offered to execution of release order, consequently, without deciding the same, the Prescribed Authority erred in directing for delivery of possession by breaking open the locks. The submission is that the petitioner not being party to the release order was not bound by the order passed against his brother, who, according to the petitioner, was not in possession of the premises in dispute and thus ceased to be tenant, but had colluded with the landlord in enabling him to procure a release order by abusing the process of court.
On the other hand, learned counsel appearing on behalf of heirs of respondent no.1, who have been duly substituted after his death, urged that the boundaries of the premises in respect of which release was sought, is different from the one which the petitioner claims to be in his possession. He submitted that the petitioner being not party to the release application, the application filed by him under Order 9 Rule 13 CPC has been rightly rejected.
As noted above, the specific case of the petitioner in his application was that he was in possession of the premises in dispute since before the date of filing of the release application. The original tenant of the premises was his father. His brother respondent no.2, against whom release application was filed, has built his own house at Rae Barielly and was residing there. He had relinquished his tenancy long back. It is for the said reason that he collusively entered into compromise with the landlord. It is noteworthy that despite respondent no.2 having entered into compromise with respondent no.1 undertaking to vacate the demised premises within 15 days, still respondent no.1 had to file execution application for executing the release order. The report submitted by the police dated 2.1.2014, which went on the spot to execute the release order, specifically mentions that the petitioner was found living in the disputed house alongwith his family. Although it is observed in the said report that the petitioner had been residing since last four years, but the said observation in the report is not based on any material. On the contrary, the specific case of the petitioner is that he had been residing in the premises in dispute since the time of his father, the original tenant. The aforesaid facts lends credence to the stand taken by the petitioner that respondent no.2 was not in possession of the demised premises, but was living elsewhere.
This Court in Suraj Deo Vs Board of Revenue, AIR 1982 Alld. 23 has held that even if a stranger, not party to suit, approaches the court alleging that he is adversely affected by the decree passed and that the decree is a result of fraud and collusion, the court is competent to exercise its inherent power under Section 151 CPC even if Order 9 Rule 13 may not specifically apply, in examining the claim of such a party and can also in a fit and appropriate case, set aside the decree, if it comes to the conclusion that the same was a result of fraud.
Again, in Tara Shanker Vs. Madan Mohan Pathak, 1993 (2) ARC 156, this Court has taken a similar view, following the judgement in Suraj Deo (supra).
Apart from the said aspect, it is noteworthy that the Prescribed Authority, which was executing the release order, was aware of the resistance offered by the petitioner to the delivery of possession, claiming not bound by the release order passed against his brother. The resistance offered by the petitioner would fall within the ambit of Order 21 Rule 97 CPC. Although provisions of Order 21 Rule 97 do not specifically apply to release proceedings but this Court has applied the principles of the said provisions to Section 23 of the Act, where a third party offers resistance claiming independent right and not bound by the release order. His rights are then required to be decided under Section 23 of the Act before the release order is executed.
In Chhaki Lal Vs. IIIrd Additional District Judge, AIR 1977 Alld. 8, this Court has held that:-
"In my opinion, in proceedings under Section 23 for enforcement of an eviction order if any person other than the person against whom an order of eviction has been passed, claims to be in possession, the nature of his possession would have to be inquired into. If it is shown by such person that he is occupying the accommodation in his own right for instance as a tenant. He cannot be evicted by enforcing an order to which he was not a party. On the other hand, if his possession is only on behalf of the tenant against whom the order for eviction has been passed for instance as a sub-tenant within the meaning of Section 25 (1) of the Act or as a licensee, such person can evicted under Section 23 while enforcing the eviction order passed against the tenant. I wish to make it clear that I am not expressing any opinion in regard to a sub-tenant whom Sub-section (2) of Section 25 of the Act is applicable because in the instant case that question does not arise."
Again, in Dharam Chand Vs. Additional District Judge, Agra, 1980 ARC 34, this Court has observed that the phrase "any other person found in actual possession" used in Section 23 is wider than the words used in Order 21 Rule 98 (2) CPC that resistance is to be removed if the court is satisfied that resistance was occasioned by the "judgment debtor or by some other person at his instigation or on his behalf". The Court has held that:-
"Undoubtedly where the person in independent possession can show his own right to possession he cannot be evicted as, observed in Chhakki Lal's case (supra). But apparently persons in, occupation whose case of independent right is not so clear that the eviction order can be virtually considered a fraud on them will not be able to thwart the eviction order merely by showing that they are not in occupation on behalf of the tenants ordered to be evicted. Only a consideration of all the facts about the right they claim, the duration and nature of their occupation, the manner in which they came into occupation the duration and nature of the occupation of those order to be united and the other circumstances will determine whether they should be evicted or not. Moreover, the burden will be on them to show that they are not liable to eviction in these proceedings."
In Rajan Bhatia Vs. Smt. Zohra Begum and another, 2009 (76) ALR 1, the above two judgments were followed in coming to the following conclusion:-
"From the law laid down by this Court in the case of Chhaki Lal and Dharam Chand it is clear that the objection of third party who is not a party to the proceeding for release is maintainable under Section 23 of the Act No.13 of 1972 and the prescribed authority is under an obligation first to inquire about the nature of a tenancy of the objector before enforcing the order of eviction. Nothing has been brought to my notice by the counsel of either side contrary to the law laid down in above two cases."
In the instant case, the Prescribed Authority, which had passed the release order and was also executing the same, was, therefore, under legal obligation to decide the claim and the resistance offered by the petitioner to the execution of the release order. However, the court below, without at all examining the claim of the petitioner, rejected the application solely on the ground that application filed by the petitioner is not maintainable, as he is stranger to the proceedings. This Court is of considered opinion that the view taken by the court below is manifestly illegal and in ignorance of the legal position mentioned above and as such, the impugned order cannot be sustained and is hereby quashed.
The writ petition is allowed. The matter is remitted back to the Prescribed Authority for deciding the application filed by the petitioner in the light of the observations made above, expeditiously, preferably within a period of eight weeks from the date of production of a certified copy of this order.
(Manoj Kumar Gupta, J) Order Date :- 28.2.2019 SL