1 53 S.B. CIVIL SECOND APPEAL NO.417/2007. Padma Vyas & Anr. Vs. Kishan Kumar & Ors. Date of Order :: 21st April 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. D.D. Chitlangi, for the appellants. ..... BY THE COURT: Having heard learned counsel for the appellants and having perused the impugned orders, this Court is clearly of opinion that this second appeal does not involve any substantial question of law and does not merit admission. It appears that resisting recovery of possession by the decree-holder-respondent No.1 in execution of the decree dated 22.01.1996 passed in Civil Suit No. 73/1993 against the respondents Nos.2 to 4 (as legal representatives of the original defendant Himmat Singh), the appellants submitted an application under Order XXI Rule 99 & Rule 101 of the Code of Civil Procedure (CPC) with the submissions that the suit house was constructed by them during the years 1970-1975 and they were residing thereat as owners but were not impleaded parties in the aforesaid suit for recovery of possession; and prayed that the process issued in Execution Case No. 15/1996 be withdrawn and the decree-holder- respondent No.1 be restrained from dispossessing the appellants. The decree-holder-respondent No.1 opposed the 2 said application with the submissions, inter alia, that the application was moved by the appellants only at the instance of the judgment-debtors to avoid execution of the decree; and that the appellants had no title or interest in the property in question. The learned Executing Court put the matter to trial and with reference to the oral and documentary evidence produced on record by the parties, came to the conclusion that the suit for recovery of possession was rightly maintained against the defendant Himmat Singh and the applicants (present appellants) have failed to show if they were in possession of the suit property in their independent right. The learned Executing Court also noticed the fact that the applicants did file a suit bearing No. 87/2001 claiming their rights in the property in question on the basis of adverse possession and the said suit was dismissed by the Trial Court on 16.05.2002. In an overall comprehension of the matter, the Executing Court did not find any substance in the application under Order XXI Rule 99 & Rule 101 CPC and rejected the same. The learned First Appellate Court in its impugned order dated 27.09.2007 has endorsed the findings of the learned Executing Court and has found that the appellants were not in possession of the disputed property at the time of filing of the suit and further observed that even if they were in possession, that was not in any independent right but only through the 3 defendant Himmat Singh, the maternal grand-father of the appellant No.2. The learned First Appellate Court has also dealt with and rejected the application filed by the appellants under Order XLI Rule 27 CPC after finding that the documents sought to be produced do not make out that the appellant No. 2 was residing in the suit property. Seeking to assail the orders aforesaid, essentially the contention on behalf of the appellants has been that the learned subordinate Courts have erred in not dealing with the application moved by them as a civil suit and in not framing relevant issues for determination of the questions arising between the parties. On being questioned, learned counsel has placed for perusal a photostat of the judgment and decree dated 16.05.2002 passed in Civil Original Suit No. 87/2001. The submission as sought to be made in this appeal does not lead to any substantial question of law. The precise question as to whether the appellants have any right, title or interest in the property in question as placed for consideration by them before the Executing Court has been dealt with and determined after affording the parties an opportunity of leading evidence. The appellants did examine three witnesses in support of their case and produced documentary evidence. The entire of the oral and documentary evidence has been considered by the learned subordinate Courts while recording the findings against the appellants. It does not appear that the 4 appellants even suggested before the learned Executing Court that they were prejudiced for not framing of a formal issue. The First Appellate Court has rightly pointed out that in such an application, the basic point for determination remains as to whether the applicant is in undisputed possession of the property in question and that the decree passed without impleading him as a party was not capable of execution. It is but apparent from the impugned order that the appellants entered into the trial of their application quite conscious of the questions calling for determination and adduced oral and documentary evidence. The submission about not framing of issues does not carry even a technical value in the present case what to say of substance. The application under Order XXI Rule 99 & 101 CPC has of course been adjudicated in accordance with law and the finding on the core question if the appellants have any right, title or interest has been returned against them after proper appreciation of the evidence. It is not in dispute that the appellants did file Civil Original Suit No. 87/2001 with the submissions that they had acquired rights over the disputed property by way of adverse possession; and an issue was framed in the said suit as to whether the plaintiffs (the present appellants) had acquired rights by adverse possession on the disputed property that was allegedly of their ownership and possession. Though the 5 said issue was decided against the plaintiffs (the present appellants) for their failure to lead evidence, the decision in the aforesaid suit No. 87/2001 nevertheless operates against the claim of the appellants. The learned subordinate Courts cannot be said to have committed any error of law in rejecting the application under Order XXI Rule 99 & 101 CPC; and this second appeal does not involve any substantial question of law. The appeal fails and is, therefore, dismissed summarily. (DINESH MAHESHWARI ), J. Mohan/