Samser Singh .And Anr. vs Nahar Singh(D) Thr. Lrs . And Ors.

2.3 Anadi Dutt having not executed the sale deed in pursuance of agreement for sale dated 07.05.1990, two title suits being Suit No.50 of 1994 and 51 of 1994 were filed by Rajvindar Singh and Shamsher Singh, which were decreed ex-parte on 20.12.1994. In 2 pursuance of decree of the Court, two separate Deeds of Conveyance were executed in favour of Dayal Singh (Nominee of Rajvindar Singh) and in favour of Shamsher Singh. Decree holders filed two execution cases vide Execution no. T.Ex. No.09 of 1995 and T.Ex. No.10 of 1995 seeking delivery of possession of the suit property. First Time Court Bailiff could not succeed in delivering possession, however, subsequently the Court Bailiff with the help of police delivered Khas vacant possession of the suit premises to the Decree Holder on 12.04.1996. 2.4 After lapse of 30 days, respondent No.1 filed two Misc. cases Nos. 10 of 1996 and 11 of 1996 against Rajvindar Singh, Shamsher Singh, Dayal Singh and Asis Dutt under Order XXI Rules 98, 99 and 100 CPC before the 6th Assistant District Judge, Alipore. In the said two Misc. cases, respondent No.1 claimed that his father Sardar Iqbal Singh was the occupier and was running his business under 3 the name and style as Public Transport Business in the suit premises and after his death, respondent No.1 has been running a business under the name and style of Ex- Service United Coal Enterprise (P) Ltd. In the above said Misc. Case No.10 of 1996, the respondent No.1 claimed that Anadi Dutt was not the son of Tarapada and it was Asis Kumar Dutt, who was the only son, owner and only legal heir of Late Tarapada. It was also claimed that a T.S. No.211 of 1990 was pending before 3rd Munsiff at Alipore filed by respondent No.1, in which he claimed right and title of the suit premises on the basis of adverse possession. It was further claimed that Shamsher Singh, Rajvindar Singh and Dayal Singh had fraudulently obtained decree in collusion with Anadi Dutt and has evicted the respondent No.1 from the suit property. 2.5 In Misc. proceeding application, although, the respondent No.1 has impleaded Asis Kumar Dutt but he neither contested the Misc. 4 application nor challenged the title of Anadi Dutt, against whom an ex-parte decree was passed. On 21.01.1999, Dayal Singh also got a deed of conveyance executed in his favour by Asis Kumar Dutt, alleged true legal heir of the Late Tarapada Dutta. Dayal Singh got his name mutated in Kolkata Municipal Corporation.

7. There is no dispute between the parties that the premises in question was originally owned by one Tarapada Dutta. The case of the respondent No.1 is that his father Late Iqbal Singh has trespassed into the premises No.15, Sahanagar Road and after his death in 1965, it was respondent No.1, who was in occupation and possession of the premises. In pursuance of decree for specific performance of contract passed in T.S. No. 50 of 1994 and T.S. No.51 of 1994, in execution proceedings, the decree holders were put in possession on 12.04.1996. At the time of taking possession, one Shri Gopal Adak was found present in the premises, who had claimed to be employee of respondent No.1. Respondent No.1 had filed a suit for declaration of the title on the basis of adverse possession being T.S. No. 211 of 1990. Copy of the plaint of the suit filed in the 9 Court of 3rd Munsiff, 24 Parganas is brought on record as Annexure P-1. In the suit, following reliefs had been claimed by the respondent No.1, who was plaintiff in the suit:-

Any interpretation which eludes or frustrates the recipient of justice is not to be followed.

The executing court rightly rejected the preliminary objection to the maintainability of application of the 27 objectors under Order 21 Rule 99 of the Code and decided the other issues on merits of their claims arising between the decree- holder and the objectors.

29. The High Court in appeal mainly concentrated its decision on the question of tenability of application under Order 21 Rule 99 at the instance of the objectors and having rejected the said application did not in detail deal with other issues on merits arising between the decree-holder and the objectors. The issues on merits which were liable to be re-examined by the appellate court, as the first court of facts and law, were:

30. As the appellate court, having rejected the objectors’ application under Order 21 Rule 99, has not in greater detail gone into the contested issues on merits, it is 28 necessary to set aside the impugned order of the High Court and remand the case to it for decision of the appeal afresh in accordance with law.”

25. The above judgment of this court clearly lays down that all issues between the parties in application under Order XXI Rules 99, 100 and 101 need to be examined by trial court and decided.

29. We do not find any error in the order passed by the Executing Court and the High Court committed error in allowing the appeal, directing the respondent No.1 to be put back into possession. In view of the foregoing discussions, we allow this appeal and set aside the judgment of the High Court dated 15.12.2009 and restore the order of the Executing Court dated 10.08.2004. Parties shall bear their own costs.