M.R. Verma, J.@mdashSince these three appeals arise out of a common judgment passed in three appeals by the learned District Judge, Shimla and involve common questions of law, therefore, are being disposed of by this common judgment.
2. Brief facts leading to the presentation of these appeals are that three eviction orders in three different proceedings were passed by the Rent Controller in favour of one Kailash Dutta (since deceased and now represented by the Appellants) against Ram Pal Sharma, Hukmi Devi and Rameshwari Devi respectively. Such eviction orders were sought to be executed by the Appellants in each appeal by filing execution petition Nos. 29/10 of 1999/95, 30/10 of 1999/95 and 31/10 of 1999/95. Punjab Waif Board (Respondent No. 1 in each appeal and hereafter referred to as ''Respondent No. 1'') in each execution proceedings filed objection petitions. The case of the Respondent in the objection petitions is that as per the entries in the revenue records one Abdulla a Sunni Mohammedan was the owner in possession of the property subject matter of the execution petitions since the year 1942. He was succeeded by Kamrudden who died some time during the year 1973-74 and the said property vested in the Muslim Wake Committee, Shimla which later became Punjab Waif Board Ambala i.e. Respondent No. 1. Predecessor in interest of the Appellants namely, S.J. Dutta (since deceased) also used to reside in a portion of the property defined as 149 and 150 Lower Bazar, Shimla and was managing the property in question as attorney/agent of Kamar under till his death. However, a forged Will was prepared whereby Kamrudeen is alleged to have bequeathed his estate in favour of Kailash Dutta the original decree holder who sold some of the property in question to different persons. Respondent No. 1 instituted a suit for declaration and possession of the suit property claiming therein that the Appellants/their predecessor in interest have no right, title or interest in the property in question and thus not entitled to execute the decree and take possession from the judgment debtors. It was also further averred in the execution petition that the eviction orders sought to be executed are illegal, without jurisdiction and ineffective against the rights of Respondent No. 1.
3. The Appellants resisted the objection petitions. In their replies, they raised preliminary objections that the objections are not maintainable being mala fide having been filed in collusion with the J Ds with ulterior motive, that Respondent No. 1 has no locus stand to file the objections being not in possession of the property subject matter of the execution petitions in any capacity and cannot approach the executing Court under the provisions of Order 21 Rule 97 of the CPC (hereafter referred to as ''the Code'')- On merits, it has been denied that. Kermode did not execute any Will or that his estate devolved upon Respondent No. 1 as alleged in the objection petitions. It has been claimed that by virtue of a valid Will the estate of, Kermode was inherited by Kailash Dutta (the deceased DH) and the application moved by the objector under Order 39 Rule 1 and 2 of the Code in the suit instituted by it stands dismissed by the concerned Court.
4. Respondent No. 1 filed rejoinders wherein the averments, as made out in the replies of the Appellants, were denied and the version, as in the objection petitions, was reiterated.
5. The executing Court dismissed the objection petitions on the ground that Respondent No. 1 has no locus stand to file such objections as it has not placed anything on the record which may show that the property in dispute is owned by it.
6. The orders of the executing Court dismissing the objections filed by Respondent No. l were assailed by it by filing Civil Appeal Nos. 74-S/ 13, 75-S/13 and 76-S/13 of 2001 in the Court of the learned District Judge, Shimla who by his common impugned judgment accepted the appeals and the orders of the executing Court dismissing the objection petitions were set aside and the cases were remitted to the executing Court with a direction to consider and dispose of the objections after settling the issues arising out of the pleadings and giving opportunities to the parties to lead evidence in accordance with law.
7. Being aggrieved by the impugned judgments, the Appellants have preferred these appeals.
8. We have heard the learned Counsel for the parties and have also gone through the material placed on record.
9. It is not in dispute that the objections filed by Respondent No. 1 were required to be dealt with under Rule 101 of Order 21 of the Code. The dispute is about the scope of inquiry. It was contended by the learned Counsel for the Appellants that the executing Court, had concluded that there was nothing on the record to suggest that Respondent No. 1 is not the owner of the suit property, it in its discretion rightly dismissed the objection petitions after considering the material before it. Therefore, no detailed inquiry was required to be held about, ''the objections of respond-ent No. 1. To support this contention, the learned Counsel has relied on
10. The learned Counsel for Respondent No. l supported the impugned judgment.
11. Rule 101 Order 21 of the Code reads as follows:
Question to be determined. All questions (including questions relating to right, title or interest in the property) arising between the 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 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 questions.
12. It is evident on a bare reading of the above rule that no separate suit is to be filed for the purpose of determining the questions relating to the right, title and interest in the property arising in a proceeding under Rule 97 Order 21 of the Code but the Court dealing with such proceedings has the jurisdiction to decide all such questions. The expression "shall be determined by the Court dealing with the application" makes the provision of the Rule mandatory. The Executing Court is thus required to go into the questions of ''right, title or interest'' raised in the proceedings under Rules 97 and 99. Since the inquiry under Rule 101 is a substitute for a suit to determine such questions, therefore, the inquiry under the rule will be treated as if it is a trial of the suit. Thus, the procedure as applicable to the trial of a suit, as far as practicable will have to be followed in an inquiry under the rule.
13. In Silverline''s case (supra) relied upon by the learned Counsel for the Appellants, Hon''bJe the Supreme Court held as under:
14. It is clear that the executing Court can decide whether the resister or obstructer is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.
14. It is evident from the above that a detailed inquiry and collection of evidence will not be necessary and the Court can adjudicate the dispute on admitted facts and averments by the resister. However, if necessary Court has to direct-the parties to lead evidence to prove their rival claims. It is thus not the ratio of the case that a question of right, little or interest should be disposed of without holding inquiry. The detailed inquiry will not be required when the facts alleged by one party are not disputed by the other. However, in a case where contentions questions of facts and law are raised, it will be necessary to inquire into such questions by affording opportunity to the parties to prove their rival contentions.
15. In a latter judgment in
11. So, under Order 21 Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and other person claiming title on their own right to get, it adjudicated in the very execution proceedings. We find that Order 21 Rule 35 deals with cases of delivery of possession of an immovable property to the decree-holder by delivery of actual physical possession and by removing any person in possession who is bound by a decree while under Order 21 Rule 36 only symbolic possession is given where tenant, is in actual possession. Order 21 Rule 97, as aforesaid, conceives of cases where delivery of possession to decree-holder or purchaser is resisted by any person. ''Any person'', as aforesaid, is wide enough to include even a person not hound by a decree or claiming right, in the property on his own including that of a tenant including stranger.
13. So far Sub-clause (1) of Rule 97 the provision is same but after 1976 amendment all disputes relating to the property made under Rules 97 and 99 is to be adjudicated under Rule 101, while under unlamented provision under Sub-clause (2) of Rule 97, the Executing Court issues summons to any such, person obstructing possession over the decretal property. After investigation under Rule 98 the Court puts back a decree-holder in possession where the Court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the Court has to dismiss the decree-holder application. Thus even prior to 1976 right of any person claiming right on his own or as a tenant, not party to the suit such person''s right has to be adjudicated under Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a long litigation. So a tenant or any person claiming a right in the property, on his own, if resists delivery of possession to the decree-holder the dispute and his claim has to be decided after 1976 Amendment under Rule 97 read with Rule 101 and prior to the. Amendment under Rule 97 read with Rule 99. However, under the old law, in case order is passed against the person resisting possession under Rule 97 read with Rule 99 then by virtue of Rule 103/as it then was, he has to file a suit to establish his right. But now after the amendment one need not file suit even in such cases as all disputes are to be settled by the Executing Court itself finally under Rule 101.
16. It is evident from the above that the provisions of Rule 101 are mandatory and provides for inquiry into the question of right, title and interest raised therein and ambit and scope of such inquiry will depend on the facts and circumstances of each case i.e. in a case where the question(s) raised can be decided on the basis of admitted and undisputed facts a comprehensive inquiry may not be necessary but in a case where contentions pleas of facts are raised, the Executing Court is bound to hold a detailed inquiry and permit the parties to lead evidence to prove their rival pleas based on facts.
17. In the case in hand, question of title is involved. According to the Appellants, they are owners of the property in question by virtue of a Will executed by a Mohammedan in favor of a Hindu woman which Will was not even produced before the Executing Court whereas Respondent No. 1 claims to have become owner of such property by virtue of the provisions of Muslim Law and that the Will set up by the Appellants is a forged document. In these circumstances, the Executing Court could not and should not have proceeded to dismiss the objection petitions without affording any opportunity to the parties to prove their rival averments and that too in the absence of production and proof of the Will set up by the Appellants. The learned District Judge has thus rightly held that the Executing Court did not hold the requisite inquiry into the question of title raised by Respondent No. 1.
18. In view of the above conclusions, the impugned orders remanding the cases to the Executing Court for inquiry in accordance with law being lawful, call for no interference.
19. As a result, all these three appeals are devoid of any merit and substance and are accordingly dismissed. Costs on parties.
