Noor Hasan vs Ummatul Nishan and Others

Narayan Shukla, J.—Heard Mr. Ratan Kant Sharma, learned Counsel for the Petitioner and Mr. Rakesh Kumar Srivastava, learned Counsel for the opposite party No. 2.

The Petitioner has challenged the order dated 28.7.2007 passed by the Civil Judge, (Junior Division), Tanda, Ambedkarnagar in Misc. Case No. 18/2007, whereby the Petitioner''s application 3Ka moved under Order 21 Rule 97 CPC has been rejected as also the order dated 16.10.2007 passed by the District Judge, Ambedkarnagar in Civil Revision No. 64 of 2007 rejecting the revision against the order passed by the court below. Briefly the facts of the case are that the Petitioner''s maternal grand mother Smt. Ummatul Nishan widow of Faizullah Khan entered into an agreement with Julekha Khatoon (opposite party No. 2) on 30.12.1975 to sell out the house. When Smt. Ummatul Nishan did not perform the contract, opposite party No. 2 filed a Regular Suit No. 305 of 1978 for specific performance of contract in the court of the Munsif, Akabarpur Faizabad. The said suit was decreed by means of judgment and decree dated 12.2.1980. Smt. Ummatul Nishan challenged the said judgment and decree by way of Civil Appeal No. 151 of 1980 before the District Judge, Faizabad. Learned Vth Additional District Judge, Faizabad dismissed the same on 30th August, 1983, against which Second Appeal No. 877 of 1983 was preferred by Smt. Ummatul Nishan before this Court which too was dismissed on 21st March, 1997. In the meantime, opposite party No. 2 filed Execution Case No. 9 of 1984 for execution of decree in which the Petitioner appearing on behalf of Smt. Ummatul Nishan in the capacity of her Mukhatar filed an objection u/s 47 CPC claiming his title on the basis of notarized Will dated 21.8.1965 alleged to have been executed by his maternal grand father in his favour, which was rejected by means of order dated 9.4.2007, being aggrieved with which he preferred Civil Revision No. 65 of 2007, which too was dismissed by the District Judge, Ambedkarnagar on 16.2.2007.

The Petitioner has also filed Regular Suit No. 402 of 2006 for permanent injunction regarding the same house claiming his right on the basis of same Will, which is still pending consideration before the court of Civil Jude (Senior Division), Ambedkarnagar. He also moved an application under Order 21 Rule 97 CPC in Execution Case No. 9 of 1984 which was registered as Misc Case No. 18 of 2007 to adjudicate upon his right on the same very basis, but the executing court rejected the same by means of order dated 28.7.2007 and the revision preferred against the said order has also dismissed by means of order dated 16.10.2007, which are impugned in the present writ petition.

It is not in dispute that the Petitioner being a major was doing Pairvi of the case on behalf of Smt. Ummatual Nishan but he never disclosed the fact of Will executed in his favour and never claimed his right on the basis of said Will, for which he takes ground that he had no knowledge about the Will before 2006 and he came to know the said Will only when he got it translated in Hindi on 21st August, 1965, whereby the property has been bequeathed by his maternal grand father to him. The Petitioner further submits that Smt. Ummatul Nishan had been given the right only to enjoy the house and other property during her life time without having right to alienate the same but she violated the terms of agreement to sell and sold out the house, therefore, the agreement to sell entered into by her is absolutely without jurisdiction and has no force in the eye of law.

On the other hand, the opposite party No. 2 submitted that the Petitioner contested the suit for specific performance of contract on behalf of Smt. Ummutal Nishan as her Mukhtar but he never disclosed the fact of Will but when could not succeed in the suit, he changed his stand and took a different ground to contest the suit. During the pendency of suit he was major and sound mind. Now at this stage the plea raised by him is not sustainable.

Learned Counsel for the Petitioner invited the attention of this Court towards Order 21 Rule 101 Code of Civil Procedure. and submitted that the Petitioner''s right can be adjudicated upon in accordance with the provisions as provided in the CPC for trial on his application moved under Order 21 Rule 97 Code of Civil Procedure. He further submits that Order 21 Rule 101 speaks that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under order 21 Rule 97 or Rule 99 or their representative, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such question.

Provisions of Order 21 Rule 97, which are relevant, are reproduced herein under:

Resistance or obstruction to possession of immovable property.-

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.

Where any application is made under Sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

In support of his submissions he cited the following decisions rendered in the cases of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another,

So far as the provisions as well as the law laid down by the Hon''ble Supreme Court quoted hereinabove are not disputed but once the Petitioner who was contesting the case on behalf of Smt. Ammutul Nishan being major and sound mind failed to claim his right on the basis of Will and defended the suit only in the capacity of Mukhtar of Smt. Ummatual Nishan, I am of the view that at this stage, it is not proper to permit him to take a plea of Will and claim his right over the property in question on the basis of Will. Therefore, keeping in view the facts and circumstances of the case, I do not find error in the orders impugned.

In the result, the writ petition is dismissed.