Abdul Gafoor vs Mt. Wahidan Bibi and Others

Anant Singh, J.—This application in revision is directed against an order dated the 6th February 1963, passed by the Additional Munsif of Dhanbad in Miscellaneous Case No. 35 of 1962 filed in Execution Case No. 47 of 1961 whereby the claim of the three opposite parties under Order 21, Rule 58 of the CPC has been allowed.

The execution case arose out of a decree passed in Title Suit No. 27 of 1959 filed by two persons, Abdul Gafoor and Tahir Hussain, and the suit was filed under the Bihar Buildings (Lease, Rent and Eviction) Control Act for the eviction from a house of the three tenants, Nurul Hussain, Md. Yunus and Akbar Hussain, who are respectively the husbands of Mosst. Wahidan Bibi (opposite party No. 1), Mosst. Asiban Bibi (opposite party No. 2) and Mosst. Jubcdan Khatoon (opposite party No. 3). The house in respect of which the eviction suit was filed is situate in the town of Jharia and bears plot No, 2455 under Khata No. 433. It formerly belonged to one Ishfak Hussain who, according to the plaintiffs in the suit, had given the whole house by a will to his only surviving son Md. Qayum. After Ishafak''s death, the house devolved upon Md. Qayum, and it is said that the two plaintiffs purchased the whole house from Md. Qayum by a registered sale deed on 29-7-1957. At that time, the house was in possession of the three husbands of the three opposite parties as tenants from the time of Md. Qayum.

On notice by the plaintiffs, the three tenants vacated half portion of the house on the north, but they continued possessing the southern half, saying that they would vacate it later. Since, however, they did not vacate that portion of the house, the aforesaid title suit was filed on 5-3-1959 for their eviction on various grounds. The three tenants-defendants filed written statements on 24-6-1959 acknowledging the plaintiffs as their landlords in respect of the house. But they had resisted the plaintiffs'' claim for eviction on other grounds. On 15-7-1960, the tenants-defendants filed an additional written statement with an averment that their wives had since purchased the whole house by a registered sale deed dated 8-6-1960 executed by Abu Muhammad as guardian for his minor son Matiur Rahman, son of one Sueba Khatun, who was stated to be the daughter of Ishfak Hussain to whom the house had first belonged. It was pleaded that on the death of Ishfak Hussain, there was a private partition between the surviving son Md. Qayum and his daughter Sueba Khatun, and the whole house was allotted to Sueba Khatun as a result thereof, and that Md. Qayum had no interest in the house. There was, however, an order made in the title suit for depositing the arrears of rent u/s 11(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act.

The deposit having not been made, the defence of the tenants-defendants was struck off. The three opposite party also filed an application in the suit to be impleaded as parties, but their prayer was rejected on 19-6-1961. They came up in revision to the High Court in "Civil Revn. No. 283 of 1961 (Pat), but that was also dismissed. The suit was eventually decreed in favour of both the plaintiffs on 4-8-1961 making an order for eviction of the three tenants defendants. The decree was then put in execution by both the plaintiffs-decree holders. There was an objection filed u/s 47 of the CPC by the three judgment debtors that the decree was not executable. But that was also dismissed on 21-7-1962. It was thereafter that the present claim case under Order 21, Rule 58 was filed by the present opposite parties on 20-8-1962. Their claim is that the alleged predecessor-in-interest, Md. Qayum, of the decree-holders had no interest or share in the house since on the death of Ishafak Hussain, as a result of private partition between Md. Qayum on the one hand and Sueba Khatun the surviving daughter of Ishfak on the other, the whole house fell to her share, and that these opposite parties purchased the same from the minor son of Sueba Khatun through the guardianship of his father, since Sueba Khatun was dead at the time.

Their case is that on their purchase, they became the landlords in respect of the house and that they are in possession of it ever since through their tenants, namely, their respective husbands, who were the defendants in the suit. This claim of the opposite parties was resisted on behalf of the two decree holders with an averment that the three opposite parties are the creatures of their husbands against whom the decree for eviction was rightly passed. The sale deed was sham and fictitious. It was said that Sueba Khatun had predeceased her father Ishfak Husain, and that the whole house had been given by him by a will to his son Md. Qayum. It has also been stated in their rejoinder to the claim of the opposite parties that the decree holders had since obtained registered sale deeds also from the mother and other surviving sisters of Md. Qayum confirming the sale taken by them from Md. Qayum.

The learned Trial Court, by the impugned order, allowed the claim case, holdings that the opposite parties acquired interest in the house as a result of their purchase from Sueba Khatun, and, thereafter, they became the landlords in respect of the house of their husbands.

This application has been filed against the same order, and it was filed on 6-5-1963-only by Abdul Gafoor, one of the two decree-holders, and not by Tahir, the other decree-holder. He was not joined as a party at that stage. It was on 9-3-1964, however, about ten-months after, that Abdul Gafoor filed a petition to make Tahir as an opposite party, and this application is also pending consideration as no order was passed before for joining him as a party. The prayer to join Tahir as an opposite party has been seriously opposed or behalf of the opposite parties on the ground that it was filed much beyond the period of limitation which is ninety days under the new Limitation Act which came in force from 1-1-1964, and also that under the practice of the Court, the period for filing a revision application was ninety days before. In the petition-filed by Abdul Gafoor on 9-3-1964 to join Tahir as an opposite party, it was stated that it was due to typing mistake that his name was left out from the revision application and that it escaped the notice of Gafoor and also of his Advocate at the time of the filing of the revision application. Tahir has since sworn an affidavit dated 3-8-1965 supporting the stand of the other decree holder Gafoor, who, it is said, is his uncle, and has pleaded bona fide in his name having been left out. He has also made a prayer to be added as a party in the revision application.

I may first of all consider, whether the order of the learned trial Court suffers from want of or excess of or failure to exercise jurisdiction in deciding the issue between the parties. As may appear from its impugned judgment, it has not considered the question of possession at all, whether the opposite party claimants were at the relevant time, in possession of the house in their own right and that their possession, if any, was not in trust for or on behalf of the judgment-debtors, who are their husbands. He has decided the whole question on the basis of the claimants'' sale deed (Ext. 2) dated 8-7-1960, taken from Mattur Rahman, the minor son of Sueba Khatoon, through his father guardian, Sueba Khatoon being dead at the time. It was on the basis of the evidence of Nurul Hussain, one of the three judgment-debtors and who had examined himself as A. W. 2, that it Accepted the claimants'' case that after the death of Ishfaque Hussain, this house and his other properties went to his son Qayum and daughter Sueba Khatoon, and that as a result of prior oral partition between them, the whole house was allotted to Sueba Khatoon and that on her death, it was inherited by her minor son Matiur Rahman, who sold it through his father to the claimants by the aforesaid sale deed.

The two decree holders had challenged the validity of sale deed in favour of the claimants on the ground that it was a collusive, fictitious and sham transaction. The learned trial court declined to consider this question even for the limited purpose of deciding the question of possession and observed that this question could be gone into in a properly constituted suit. It only said, "prima facie his sale-deed (Ext. 2) purports to have transferred right, title and interest in respect of the disputed premises to the applicants" and after so finding, the learned trial Court, at more than one place, has observed that the claimants opposite party acquired an "interest" in the property in question and, therefore, relying on the provisions of Order XXI, Rule 59, as amended by the Patna High Court, it held that mere ''interest'' of the claimants created by the aforesaid sale-deed was sufficient to dispose of the case in favour of the claimants, though, it said absolutely nothing, if they were at all in possession of the property and that in their own right.

But, the original provision of Rule 59, Order XXI, C. P. C. also, even without the Patna amendment, requires a claimant or objector to "adduce evidence to show that at the time of the attachment, he had some interest in or was possessed of the property attached". The Patna amendment only provides for the adducing of evidence of interest or possession even on the "date of the decree" apart from the date of the attachment. In Rule 58, Order XXI, however, without the Patna amendment, there is neither any mention of ''interest'' or ''possession''. The Patna amendment to Rule 58, provides as follows:

"When any claim is preferred to any property, the subject matter of execution proceedings, or any objection is made to the attachment thereof, on the ground that the applicant has an interest therein which is not bound under the decree, or that such property is not liable to attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects as if he were a party to the suit."

The amended provision of Rule 58 only enables an objector to put his objection on the ground that he has an ''interest'', obviously of his own, in the property in question, but, it does not say that merely on the ground of interest, he is entitled to succeed and claim a release of the property. What has to be investigated in a claim case, as it is commonly called, under Order XXI, Rule 58, is provided in Rules 60 and 61 of Order XXI. The Patna amendment to these rules only introduced, as in the case of Rule 59, an objector''s right to urge his claim as existing on the date of the decree as well, apart from attachment, except that to Rule 60, something more was added, which is not necessary for the decision of this case. I may, therefore, quote only from the original of Rules 60 and 61. They are to the following effect:

Rule 60--"Where upon the said investigation, the Court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person. or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment."

Rule 61--"Where the Court is satisfied that the property was, at the time it was attached, in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Court shall disallow the claim."

These rules make it clear that possession is really the deciding factor. They do not envisage that even if the claimant establishes only his ''interest'' in the property, divorced from possession, actual or constructive, he can succeed on that ground alone, and conversely, they do not imply that if the claimant fails to establish the particular interest in the property he sets up, he will fail, even if he can establish his possession. It is manifest that the test is possession and the court cannot base its decision merely on the basis of title to the property. The expression "some interest" only means such an interest as would render the possession of the judgment-debtor not on account of the judgment-debtor, but on account of or in trust for the claimant. In short, the question to be decided in a claim case is whether on the date of attachment or the decree the judgment-debtor or the objector was in possession, and it is only when the court is satisfied that the objector was in possession of the property on his own account and not in trust for the judgment-debtor, then alone the property can be released in favour of the objector within the meaning of Rule 60. Thus, the sole question to be investigated is one of possession and the question of title can be incidentally gone into, only as an aid to decide the question of possession. This principle has been laid down by a Bench Decision of this Court in the case of Chunni Debi Vs. Sm. Annapurna Dai and Others, , after review of various decisions of the different High Courts, including the leading case of Sardhari Lal v. Ambika Pershad 15 I A 123 decided by their Lordships of the Judicial Committee. Manoharlal J., who delivered the judgment, after referring to the provisions of Rules 58 to 61 or Order XXI, observed:

"These provisions make it quite clear that in order to succeed the claimant must show that he was in possession of the property on his own account and that the judgment-debtor is not in possession of the property. The Code does not provide the extent of the inquiry to foe conducted and leaves that to the full discretion of the Court. In many cases the nature of the claims set up by the rival parties will indicate the questions of fact which the Court will have to decide. In order to weigh the oral evidence as to possession it may be necessary for the Court to consider the question of title incidentally, but only to enable it to come to a conclusion that the claimant is or is not in possession on his own account."

The learned counsel for the opposite party, however, contended that the aforesaid decision came before the Patna amendment of Order XXI, Rule 58, whereby the expression ''interest'' was subsequently introduced in the rule. But the expression ''interest'' was there in Rule 59 even before the Patna amendment, as 3 have shown above. The aforesaid decision thus came even when the word ''interest'' in Rule 59 was there and the basis of the decision was the provisions of Rules 60 and 61, already quoted. Thus the trial Court failed to exercise its jurisdiction in not considering the question of possession and allowing the claim in favour of the objectors without it.

As to the sale-deed also, which was characterised on behalf of the decree-holders to be a collusive and got up document, it declined to decide the matter one way or the other, but only contented itself because there was a sale deed in favour of the claimants, although the sale deed came after the judgment-debtors had filed their written statement in the original suit, wherein they had accepted the two plaintiffs as their landlords in relation to the house in question. The Court treated this sale deed as a prima facie'' evidence of the claimants'' title, merely because there was a sale deed in their favour. The question of title can be gone into incidentally and cannot be the sole lest for deciding the claim even in absence of any finding as to possession in favour of the claimants.

It may be indicated at this stage that neither the father of the minor vendor, who had executed the sale deed on his behalf, nor was any of the vendee''s claimants examined to prove the validity of the sale deed and the claimants'' allegation that on the death of the original owner, Ishfak Hussain, his property had devolved on his son Qayum and daughter Sueba Khatoon, and that subsequently on an oral partition between the latter two, the whole house in question went to the share of Sueba Khatoon. The only person who examined himself in this connection was Nurul Hussain. A. W. 2, who was one of the three judgment-debtors and the husband of one of the claimants. Having had previously admitted in his written statement filed in the original suit the title of the plaintiffs derived from Qayum, he was, in the circumstances of the case, not at all competent to have spoken about the transaction and consequent possession of the claimants as landlords of the house after the execution of the sale-deed in their favour by Matiur Rahman through his father. Apart from the oral evidence, which was, as pointed out above, no evidence, some money order coupons were also exhibited, showing payment of rent in respect of the house by the judgment-debtors to the claimants, who are only husbands and wives, presumably, living in a common house, other than the house in question which is stated only to be a shop.

It is significant to mention that five of the money order receipts were acknowledged by Akbar Hussain, husband of opposite party No. 3, and 13, by Yunus, husband of opposite party No. 2, and the remittances of these money orders were only to their wives, apart from another wife of the third judgment-debtor. The sale deed itself, as I have pointed out above, and the money order coupons came into existence during the pendency of the suit, after the defendants had filed their written statement, acknowledging the plaintiffs'' title. It appears on the very face that these documents were probably created only to lend colour to the claim of the objectors. Be that as it may, the learned trial Court having not found possession of the objectors-opposite parties over the house in question, the whole order allowing their claim under Order XXI, Rule 58 C. p. C., is without jurisdiction. If somehow, the court thought it fit to decide the case in favour of the objectors on account of their ''interest'' based only on their title deed, it should have considered its validity when the same was challenged, and not decided the question only on its face value. The order is without jurisdiction for this reason as well.

The learned counsel Shree Ramnandan Sahay Sinha, appearing for the opposite party, has, however, vehemently commented that one of the decree-holders, Tahir Hussain, not having been joined as a party to this application, the order in question cannot be set aside at the instance of the other decree-holder (Abdul Gafoor), who alone has filed this application, without having joined Tahir Hussain even as an opposite party. He has argued that the order, in view of the provisions of Rule 63 Order XXI, C. P. C., has become final at least against Tahir Hussain, and his remedy to file even a regular suit is now barred by limitation after the period of one year. The application to join Tahir Hussain as a party was filed after the period of limitation to file a revision application, and even to file a suit, had already run out. It was thus said that Tahir Hussain''s claim is now barred by the principle of res judicata and he should not now be joint as a party.

He has also referred to the provision of Clause (5) to Rule 10 of Order I, and the provision of Rule 3 of Order XLI, and contended that in view of specific provisions, inherent powers of the Court should not be invoked with a view to make Tahir Hussin a party. In support of all his aforesaid contentions, he has referred to a number of decisions in New Churulia Coal Co. Ltd. Vs. Union of India (UOI), , Ramkinkar Biswas and Others Vs. Akhil Chandra Chowdhuri , AIR 1927 252 (Privy Council) , Madhorao v. Eknathrao AIR 1948 Nag 66, Badri Narayan Singh Vs. Kamdeo Prasad Singh and Another, .

On behalf of the petitioner of this application, reliance has, however, been placed on the decision of a Full Bench of this Court in the case of Mt. Parwati Kuer and Others Vs. Manna Lal Khetan and Others, , and a Bench decision in the case of Anantalal Daga and Others Vs. Debi Prasad Pandey and Others, , in support of the contention that an order of the trial Court can be set aside on appeal even at the instance of one of the parties affected by the order of that trial Court without joining any other of his group, if the order on appeal were to be passed in their favour on a common ground. It was held by a majority of three to one by the Full Bench in Mt. Parwati Kuer and Others Vs. Manna Lal Khetan and Others, , (quoting from the placitum only):--

"If Order 41 Rule 4 and Order 41 Rule 33 are read together, there can be no doubt that one of the defendants can file an appeal without impleading the other defendants as respondents, and if the appeal proceeds on the ground common to all the defendants, the Appellate Court may exercise the power of varying the decree in favour of the non-appealing defendants, though they have not been parties to the appeal. The effect of these two rules is that the Appellate Court is authorised to pass a decree in favour of a party who has not been heard, but the Appellate Court is not authorised to pass a decree against a person who is not a party to the appeal. Thus the Appellate Court has power, under the provisions of Order 41, Rule 4, read with Order 41. Rule 33, to vary or reverse the mortgage decree granted by the lower Court in favour of a defendant who is not impleaded either as a party appellant or as a party respondent, and whose name is ordered to be expunged from memorandum of appeal on account of A technical defect. There is no question of abatement in such a case."

In Anantalal Daga and Others Vs. Debi Prasad Pandey and Others, , the Division Bench following the Full Bench decision in the earlier case and referring to Rules 4 and 33 of Order XLI of the CPC also held:-

"reading these two provisions together it is manifest that in the present case some of the decree-holders could prefer an appeal without making the other decree-holders as parties to the appeal and the appellate Court can pass an order in favour of those decree-holders also who are not parties in the appeal."

After referring to the facts of that case, their Lordships further said:

"It is also apparent that these heirs being co-decree-holders are interested in the result of the appeal. They could, therefore, be made parties even at the time of the hearing of the appeal, and, in that view of the matter, the question of limitation under Article 181 of the Limitation Act does not arise at all."

Shree Ramnandan Sahay Sinha, however, pointed out that the aforesaid two cases refer to appeals and not to an application in revision filed u/s 115 of the Code of Civil Procedure, as it is in the present case, and, therefore, according to his contention, the provisions governing appeals should not be applied to a revision application. He drew my pointed attention to the Full Bench decision of the Nagpur High Court in AIR 1948 258 (Nagpur) , wherein it was observed that the revisional jurisdiction of the High Court u/s 115 C. P. C. should not be liberally exercised as to convert a revision into an appeal, but the Full Bench in the Nagpur case did not decide that in no case the provisions governing appeals can be applied to revision applications. It only cautioned against its liberal application. There is no legal bar to apply principles governing appeals also to revision applications in suitable cases when the ground is similar that an order can be set aside even at the instance of one of the decree-holders or that a party can be added even at the time of the hearing of the appeal and as a matter of that even of an application for revision.

The order in question is one and inseparable and it being without jurisdiction, as held earlier, it can be set aside even at the instance of one of the two decree-holders. Since this order will endure to the benefit of both and not to the prejudice of the one who was not made a party in time to this revision application, the question of res judicata, in this view of the matter, does not arise and the cases governing res judicata relied upon on behalf ,of the Opposite Party have no application. AIR 195 Cal 585 referred only to the adding of a necessary party in a suit and not in an appeal or revision. Ramkinkar Biswas and Others Vs. Akhil Chandra Chowdhuri and AIR 1927 252 (Privy Council) dealt with adding of necessary parties to a suit after the period of limitation and those decisions will not govern appeal or revision. In Badri Narayan Singh Vs. Kamdeo Prasad Singh and Another, , the principle of res judicata was applied in altogether different circumstances. For reasons I have stated, the question of res judicata does not arise in this case. The prevision of Order XLI Rule 33, C. P. C. can well be applied also to a revision application and decisions in Brijnandan Roy and Others Vs. Jadunandan Singh and Others, and Kakraul Co-operative Society Vs. Durganand Jha and Others, , forbidding invoking of inherent jurisdiction in disregard of specific provisions do not apply.

It was through inadvertence, as is the case of the petitioner as also of Tahir Hussain, that the latter could not be joined as party in time in the revision application, and since the whole order of the learned trial Court can be set aside even at the instance of Abdul Gafoor, who has filed the revision application, there will be no prejudice caused to the opposite party in adding Tahir Hussain as a party even at the time of the hearing of the Revision application. I, therefore, allow him to be added as an opposite party.

In the result, the impugned order of learned trial Court is set aside and the application is allowed with costs and Pleader''s fee Rs. 32.