Taher Ali vs Jhumarmal Jain

T.C. Das, J.—It is by now, a settled law that the jurisdiction of the High Court to deal in a matter u/s 115 of the CPC is limited and circumscribed to the extent only on the point of jurisdictional error. The position that emerges from various decisions of the Supreme Court it that Section 115 of the Code of Civil Procedure. empowers the High Court to consider on three matters. They are: (1) that the order of the subordinate court is within its jurisdiction ; (2) that the case is one in which the court have exercised its jurisdiction or that in exercising jurisdiction the court has not acted legally, that is, in branch of some provisions of law, or with material irregularity by omitting some procedures in the course of the trial which is material to affect the ultimate decision and (3) if the High Court is satisfied that there is no error in regard to any of the three matters, it has no power to interfere merely because it differs from the conclusions of the subordinate court on questions of fact or law. An erroneous decision on a question of fact or of law reached by the subordinate court which has no relation to the question of jurisdiction of that court cannot be corrected by the High Court u/s 115 of Code of Civil Procedure.

The legal position was laid down by the Privy Council as early as in 1884 in Rajah Amir Hussain''s case. It was held:

The question then is, did the Judges of the lower courts in this gate, In the exercise of their jurisdiction, act illegally or with material irregularity, It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case ; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.

(See (1884) IInd. Appeals 237)

This view was approved by their Lordships of the Supreme Court in very many cases while dealing on this point.

Therefore, it is well settled that the revisional jurisdiction of the High Court is confined to the cases of illegal or irregular exercise or non-exercise or illegal assumption of jurisdiction by the subordinate court. If a subordinate court is found to possess a jurisdiction to decide a particular matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction u/s 115 of the CPC to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the disputes itself, This is what exactly held by their Lordships of the Supreme Court in Shir Singh''s case as reported in AIR 1978 SC 1341.

Here is a case where the revision Petitioner being aggrieved by the order dated 3.1.83 passed by the learned Assistant District Judge No. 2, Gauhati in Misc. Case No. 120 of 1981 has approached this Court to revise the order This case has a chequered history. Though the facts are complicated and lengthy, the point of law involved is simple and settled. It is not necessary to narrate the entire history sheet of the case. But some facts which are relevant for disposal of this revision application may be narrated briefly. The opposite party herein as Plaintiff brought a Title Suit No. 77 of 1956 in the court of the then Subordinate Judge, Gauhati, for declaration of right, title and interest in respect of the land and houses described la the schedule to the plaint. The land in dispute is measuring about 10 lachas being parts of the two dags, namely, dag No. 2834 and dag No, 2863 of K.P. Patta No. 586 of Gauhati town. Dag No. 2834 contains 8 leches of land and the remaining 2 lechas is covered by a portion of dag No. 2333 making 10 lechas in total. A two-storied house is also in the schedule of plaint which stands on the said land. The house was included under Holding Nos. 48 and 48A in the record of the than Gauhati Municipality in Ward No, 4 of Gauhati. There is no dispute that the present revision Petitioner was not a party Defendant in the said suit. One Ram Chandra Dey and 6 others were the Defendants in the said suit. Though there were some profarma Defendants as arrayed by the Plaintiff in the plaint no relief was claimed as against them. The suit was dismissed by the trial court whereupon the Plaintiff preferred a First Appeal No. 49 of 1970 to this Court. The said appeal was allowed by this Court on 21.8.79. Consequently, the Title Suit No. 77 of 1956 of the Plaintiff was decreed, In the mean time; the first Defendant Ram Chandra Dey having died, his legal heirs and representatives preferred a SLP before the Supreme Court. But it was rejected on 29.10.79 which brought an end to the first round of the battle.

While the first battle was ended, the Plaintiff decree holder instituted an execution ease being Title Execution Case No. 16 of 1979 to execute the decree whereupon sub-tenants of first Defendant Rum Chandra Dey, who are in occupation of the suit house filed an application for stay of the execution of the decree. But the petition was rejected by the executing court. Ultimately the same facts bad to be faced by the sub-tenant in the High Court also. Thereafter, one Babu Lal Sarma, who claimed to be a tenant of first Defendant, Ram Chandra Dey and whose application for stay was rejected by the High Court, moved a special leave application in the Supreme Court which was also rejected on 12.10.81. They did not stop there. The three sub-tenants, namely Sri Sachin Dhar, Sri Devendra Pal and Sri Babu Lal Sarma instituted three different Title Suits in the year 1979 in the court of the Sadar Munsiff at Gauhati which were numbered as Title Suit No. 105 of 1979, Title Suit No. 110 of 1979 and Title Suit No. 112 of 1979 in the court of Sadar Munsiff at Gauhati. They also moved applications under Order 39, Rule 1 CPC for issuance of a temporary injunction restraining the decreeholder from execution of decree of Title Execution Case No. 16 of 1979. The legality and validity of the said decree was questioned in those suits. But they were unsuccessful to obtain any injunction from the court of the learned Munsiff at which they curried three appeals to the court of the learned Assistant District Judge which were also dismissed. Against the order of dismissal of those appeals, revision petitions were Died before this Court but they were unsuccessful. This was the second bound of the battle which had to be faced by the decree-holder who obtained a decree in the suit from this Court after a heavy fight, Though the suit was filed as far back in the year 1956, the Plaintiff could only see the result of the suit in the year 1979 after an ordeal of the legal battle. Another double for the Plaintiff decree-holder started which delayed the reduction of the decree was due to the induction of the Petitioner as a tenant by Ram Chandra Dey in the year 1961 in aspect of a room of this suit house. This induction was after the suit was instituted. The present Petitioner filed a Civil Revision Petition in this Court being Civil Revision No 197 of 1981 on the ground that be was carrying on business under name and style of Assam Machinery Stores at a rented house from the first Defendant Ram Chandra Dey (since deceased) and the Petitioner bad been regularly paying rent to Chandra Dey. As a dispute arose in the year 1964 the Petitioner was approached by one Receiver for collection of rent and be was paying rent to the Receiver which continued till 1979, and as such he cannot be evicted from the suit house. This Receiver as mentioned by the Petitioner was none else but the pretext decree-holder. However, the said revision petition was dismissed an it was not pressed by too present Petitioner. It would not be out of way to mention but that the present decree-holder (opposite party) was appointed Receiver by the court in his Title Suit No. 77 of 1956 to collect rents from the different tenants of the disputed house. The present Petitioner Taher Ali along with 3 others intimated the Receiver (the present decree-holder) that they were the tenants of the disputed house under Ram Chandra Dey, it may be further mentioned here that in Title Suit No. 77 of 1956, the first Defendant Ram Chandra Dey by petition No, 145 of l957 stated that Taher Ali (the present revision Petitioner) was his tenant in respect of the suit premises, It was alleged by Rein Chandra Dey that Taher AH and others bad caused damages to the tin roof of the suit house and they were to be restrained from making any addition or alteration to the suit house. Another application dated 1.6.70, of the First Defendant Ram Chandra Dey filed in the trial court was for removal of the decree-holder opposite party from Receivership. In the said petition, the name of Taher Ali (the present revision Petitioner) was mentioned as tenant of the suit premises.

Thus, the third round of the legal battle started between the present revision Petitioner and the opposite party decree-holder while the Petitioner Taher Ali filed an application under Order 21, Rule 58 of the CPC before the court of learned Asstt. District Judge No. 1, Gauhati. The petition was filed on 19.10.81 during the pendency of the ravision Application of Taher Ah in this Court which was dismissed only on 23.10.81. However, on the said application, the present Petitioner Taher Ali obtained a stay order from the court on 19.10.81 even before the decree was sought to be executed.

To ascertain the correct petition of the suit premises, the revision Petitioner Taher Ali moved an application u/s 3 of the Civil Courts Amin Act read with Order 26 of the CPC with a prayer for appointment of an Amin Commiasioner to make a spot enquiry regarding possesion of Taher Ali in the suit premises. The said application was moved on 25.11.81 and the court by its order dated 3 3.82 appointed Sub Deputy Collector, Sadar, as Amin Commissioner. On 30.3.82 the Amin Commissioner submitted his report along with a sketch map stating that Taher All has been in occupation of an area of 350 sq. ft., in dag No, 2834 of K.P. Patta No, 566 of Block, 4 Gauhati, and the map enclosed therin showed the actual position of the suit house by Assam Machinery Stores belonging to Taher Ali. At this stage, it may be helpful to mention that one of the disputed dags in suit is dag No. 2634 which contains an area of 8 1achas of land out of total 10 lacbas of the suit land. On perusal of the Amia report, it does not appear that the suit bouse In a portion of which Taber All has claimed to be in occupation stands either In part of dag No. 2824 or in dag No. 2835, The order dated 3.3.82 passed by the learned court below on the laid application praying for appointment of an Amin Commissioner is quoted herein below:

At this stage we are concerned only with the question of issue of Amin Commissioner which, in ray opinion, is required for the purpose of elucidating the matter in dispute at this stage.

Now, according the Petitioner Taber Ali, the order rendered on 3.1.83 by the learned Assistant District Judge No. 2 in Misc. case No. 120 of 1981 was without jurisdiction us the learned court bad no alternative than to proceed with tie matter for inquiry. It is claimed by the Petitioner that an application dated 19.10.81 had to be filed because for his offering a resistance from executing the decree by the decree-holder. It is further alleged by the Petitioner that the facts and circumstances of the case as spelt out from the words of the case, that there was a resistance offered by the Petitioner in respect of the ex-caution of the decree. The positive case of the Petitioner Taher Ali is that be is in possesion of the suit house and the land not covered by both the disputed dags as claimed by the decree-holder. The Petitioner has claimed to be in possession of the house which is standing on a portion of dag No. 556 with the Holding No. 123 of Ward No. 20 under Gauhati Municipal Carporation. The Petitioner has also claimed that the said Dag No. 556 was curved out from the land under Dag No. 2835 and Dag No. 2824 which are not the subject-matter of the suit. Now the main challenge of the Petitioner is that the order dated 3.3.82 passed by the learned Assistant District Judge No. 1 at Gaubati in Misc, ease No,120 of 1981 being held in favous of the Petitioner earlier, it cannot be again reviewed by the learned Assistant District Judge No. 2, Guwahati. Therefore, the impugned order dated 3.1.83 dismissing the entire Misc. case No. 120 of 1981 is without jurisdiction and therefore untenable in law.

On the above facts and circumstances of the case and in support of the respective contentions of the parties, I directed the learned Counsel of the parties to submit their written arguments so that both the parties may get full scope to enumerate and disclose their respective cases along with the legal points they desire to canvass before this Court. The learned Counsels of both the parties submitted their written arguments in support of their respective contention. On perusal of the written argument as submitted by the learned Counsel for the Petitioner, it appears that according to Petitioner, the main submission is that the Misc. case No. 120 of 1961 was a proceeding based under Order 21, Rule 97 CPC and the learned trial court ought to have decided the matter in accordance with Rule 101 of Order 21 of the CPC and ought to have adjudicated the right, title and interest of the parties in respect of the suit premises. According to the Petitioner, the learned court below bad no jurisdiction to dismiss the case without deciding the same According to the provisions of Order 21, Rule 101 Code of Civil Procedure. Once the matter relating to Order 21 Rule 58 CPC was finally decided, as submitted by the Petitioner, it was not open for review. It is further submitted by the Petitioner that the proceeding in Misc. case No. 120 of 1981 was in fact a proceeding under Order 21, Rule 97 CPC which ought to have been adjudicated as per provisions of Order 21, Rule 101 of the Code and in not doing so, the Petitioner was deprived of his valuable right to adduce evidence from establishing his right, title and interest in respect of the suit premises in question. The last submission of the Petitioner is that the Petitioner being in occupation of the different land and house outside the suit premises, the question of execution of the decree relating to the property in occupation of the Petitioner does not arise. I have perused the written argument submitted by the opposite party. The stance taken by the opposite party is that the decree bolder has been unnecessarily barassed either by one party or the other from the date of his execution of the decree till row and be has been deprived of enjoying the fruit of the decree. It is a positive case of the opposite party teat at no point of time the decree holder filed any application under Order 21, Rule 97 of the CPC nor any objection or complaint was made about any resistance alleged to have been offered by the Petitioner at the time of execution of the decree. Therefore, according to the learned Counsel for the opposite party, as no application was filed by the decree holder for initiation of any proceeding under Order 21 Rule 97 Code of Civil Procedure, no proceeding could be started under the provision of Rule 101 of Order 21 of CPC Rule 100 of Order 21 CPC is attracted only when the bonafide claimant who WHS in possession of the property was dispossessed and that an enquiry is to be made to restore his possession. It would be apposite at this stage to examine the provision of Order 21, Rule 97 Code of Civil Procedure.

97, Resistance or obstruction to possession of immovable property (1) Where the bolder 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 in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) 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.

On a bare perusal of the Rule, it appears that before an investigation is made under this Rule, it is necessary that an application should be mad; to the court by the decree-holder and unless it is nude under the provision of this Rule, no investigation can be nude on the application of a third party who claim? to be in possession of the disputed land. (See Gopal Chandra Sadhukhan Vs. Sheikh Jamsed and Another, and Janki Mohan and Another Vs. Dr. S. Samaddar and Others, The next question then would arise whether the court can investigate suo moto. Order 21, Rule 97 as it appears, contemplates the case of actual resistance or obstruction to the execution of decree or for possession by a person not being a party to the decree or order. But that too must be on the application of the decree holder under this provision of law. In my opinion, the court cannot investigate:Suo moto in absence of any application made by the decreeholder to that effect. In this case, no application of such nature under Order 21, Rule 97 CPC was ever filed by the decree- holder complaining resistance. What has been found on record is that an application under Order 21, Rule 58 CPC was moved by the present Petitioner Tabor Ali claiming possession of the disputed property. An application was moved by the Petitioner for appointment of an Amin Commissioner to ascertain the present position of the Petitioner in respect of the decretal land and the house standing thereon. Much have been said by the Petitioner that the matter should have been Investigated as per provisions of Rule 101 of Order 21 Code of Civil Procedure. Rule 101 of Order 21 CPC reads as follows:

Question to be determined.-- All questions (including questions relating to right, title or interest in the property) arising between tie parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the. application and not by a separate suit and lor tins purpose, the Court shall, not with stranding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

On scrutiny of this provision, it appears that where a third party applies for redelivery of property under this Rule, the question which the Court has to decide is whether the applicant was in possession of the disputed properties either on his account or on account under some person other than the judgment debtor. The Court should confine itself to the question of possession and should not decide the question of title or questions regarding the construction of the decree. Any question of juridical possession would be foreign to the nature and purpose of the enquiry, In the instant case, there is no complaint either under Order 21, Rule 97 CPC by the decree-holder nor it is the case of the Petitioner that he has been dispossessed and that he being a third party and a bonafide claimant he should be put in possession of the property from which be was dispossessed, Undisputedly, the Petitioner moved an application under Order 21, Rule 58 Code of Procedure and being an unsuccessful applicant, he is not competent to apply under Order 21, Rule 100 CPC Moreover, the main thrust of argument as raised by the learned Counsel for the Petitioner is that the learned trial court ought to have enquired into the matter as per provision of Order 21, Rule 101 of Code of Civil Procedure. It has been stated by the learned Counsel for the Petitioner that the application of the decree-holder should have been treated to be an application under Order 21, Rule 97 CPC and the Petitioner should have been given an opportunity by takins up a proceeding to be adjudicated in accordance with Rule; 101 of Order 21 CPC It is very difficult to appreciate this submission as because the application was made by this Petitioner to ascertain the correct position of his provision in respect of the property in question,. If the decree-holder was not required to file an application under Order 21, Rule 97 Code of Civil Procedure, the court cannot direct him to file the same. The decree-holder is bound to move the court under that provision which is only permissible and not mandatory or imperative provision. The stranger who is not a party to the suit has two remedies, one before dispossession and another after dispossession. After dispossession, he can make an application under Order 21, Rule 99 CPC and before dispossession, he has an independent remedy of filing a suit for declaration along with other relief including injunction. If a stranger who is being threatened will an injury of dispossession whether in execution of a decree or otherwise can resort to a remedy of filing a suit. But in tali case, the Petitioner is not a stranger, He is the sub-tanant of main Defendant Ramohandra Dey. The decree-holder obtained the decree after a long battle, but he had been regularly prevented by one way or other by one or other to realise the fruits of the decree. Will it not amount to shaking faith in the credibility of legal system? Will it not amount to forestall the execution of the decree for years together? The history sheets of this case speak clearly that the decree-holder had to undergo several ordeal of legal battles even upto the Apex Court and though be was always a winning party in all the past proceedings, yet be has not seen the end of his battle until now. He is favoured with a decree to obtain possession of 10 lechas of land and a house thereon. I would like to quote an old saying from the observations of their Lordships of the Privy Council that in India it may be easy to obtain a decree if the Plaintiff can prove his case but it is very difficult to execute the decree to reap its fruits. From the history sheet of this case, the old saying can be repeated again. The decree-holder had to fight several rounds of legal battle even after the decree was obtained by him. The Petitioner paid rent to the decree-holder while be was appointed as a Receiver. The Defendant No. 1 Ram Chandra Dey repeatedly stated that the present Petitioner Taher Ali has been in occupation of a portion of the suit bouse as one of his tenenats, the Amin Commissioner''s report clearly disclosed that the possession of Taher Ali is not elsewhere but in a portion of the disputed suit house. These are relevant circumstances which are to be considered by the Court.

The next question is whether this Court can interfere with the impugned Order 7 is there any jurisdictional error committed by the court below? is there any error which can be said to have been committed to upset the entire procedural system of jurisprudent ? The answer is ''no'', I have already observed that it war not permissible to the court below to take up the proceeding moto under Order 21, Rule 97 CPC to adjudicate the same under the provisions of Order 21, Rule 100 or 101 CPC in absence of an application by the Decree holder. Therefore; in my opinion there is no procedural error committed by the learned court below, The learned court below had jurisdiction to decide the matter and the matter has been decided finally. If that decision is wrong, it cannot be interferred with by the High Court in its revisional jurisdiction. It is a faint attempt of the Petitioner to resist the execution of the decree by putting a weak banner knowing it fully well that the barrier may collapse if the matter is adjudicated on legal point.

For the reasons set forth above, I am of the opinion that this petition has no merit. In the result the petition is dismissed with cost of Rs. 300/--.

Later- When the judgment was delivered, it was prayed by Mr. Bhattacharjee, learned Counsel for the Petitioner that his client may be allowed three month time to vacate the premises. Mr. Goswami, learned Counsel for the opposite party has no objection in this if the possession is delivered to the decree holder by vacating the premises and removing the belongings of the Petitioner therefrom. The pray or is reasonable. The Petitioner is therefore, allowed three months'' time to vacate the premise acid within this period the decree holder shall not execute the decree to evict the Petitioner.