- (1.) THIS civil revision by Shamsuddin is directed against the order of the Civil Judge, Mohanlalgani, Luck-now allowing the objection of the op posite party Abbas Ali under Order 21, Rule 101. Civil P. C. It arises out of the following facts.
(2.) ONE Mohammad Jafar made a mortgage of five shops on the ground floor and two shops on the first floor situate at Sanitary Road, in Mohalla Maulviganj, in the city of Lucknow. Abbas Ali enforced the mortgage against Mohammad Anwar, Ashraf Jahan Begam and Masooma Begum, son, daughter and widow respectively of Mohammad Jafar, after the latter's death. He obtained a decree for sale and purchased the mort-taged property at a Court sale held on December 13, 1955. A warrant for delivery of possession was issued and posses sion was delivered to him on November 5, 1957 under the provisions of O. 21, R. 36, Civil P. C., as the various shops were in the possession of tenants. Sub sequently, Sultan Jahan Begum institut ed Regular Suit No. 62 of 1961 in the Court of the Civil Judge for partition of her one-third share in the disputed pro perties and for possession over her parti tioned share. She alleged in that suit that one Wahid Ali had three sons, Mohammad Jafar (mortgagor), Husain Ahmad and Nasir Ahmad, and two daughters, Ahmadi Begum and Bismillah Begam. Husain Ahmad purchased the site of the disputed shops and construct ed these thereon. On his death, the in heritance devolved upon her (Sultan Jahan Begum) to the extent of one-third, she being Husain Ahmad's daughter by his first wife Noor Jahan, and upon Shah Jahan Begum, to the extent of another one-third, she also being the daughter of Husain Ahmad by his second wife Bis millah Begum and the remaining one-third devolved upon Husain Ahmad's two brothers, Mohammad Jafar (the mort gagor) and Nasir Ahmad, and upon his two sisters, Ahmadi Begum and Bismillah Begum. Mohammad Jafar had, there fore, according to inheritance, an insigni ficant share in the properties and had no right to mortgage the properties in their entirety so as to bind her or the other co-sharers. The suit was instituted against all the heirs of Mohammad Jafar, the origi nal mortgagor, and against Abbas Ali, the mortgagee auction-purchaser. Abbas Ali filed a written statement in which he averred that Noor Jahan was not the wife of Husain Ahmad and Sultanjahan Begum was not Husain Ahmad's daughter by Noor Jahan and as such she had no right or title to the mortgaged property. He took various other pleas also to non suit her. Sultan Jahan Begum then withdrew her suit on April 2, 1964 against Abbas Ali, without liberty to in stitute a fresh suit. Her suit was decre ed against the other defendants in the suit. A preliminary decree for partition was prepared, and after it had become final, she put it in execution and prayed for delivery of possession over her parti tioned one-third share under the provi sions of Order 21, Rule 35, Civil P. C. She died during the pendency of the ex ecution proceedings and was substituted by Shamsuddin, the petitioner before me, her son. A warrant for delivery of pos session was issued and possession was delivered on July 10. 1966. The opposite party Abbas Ali then preferred an objec tion under Order 21, Rule 100, Civil Procedure Code alleging his dispossession and praying for restoration. His claim was allowed by the Civil Judge on July 31, 1967 and possession was restored. Shamsuddin feeling aggrieved by that order, has come up in revision. The learned counsel for the op posite party has raised a preliminary ob jection to the effect that no revision lies and the remedy of the petitioner was by way of a suit under O. 21. R. 103, Civil P. C. Rule 103 says that any party not being a judgment-debtor against whom an order is made under Rule 101, may institute a suit to establish the right which he claims to the present posses sion of the property; but. subject to the result of such suit (if any), the order shall be conclusive. I have considered this matter and I am of the view that a revision is not barred though this Court may not interfere in a particular case, depending upon the facts of that case. This matter is concluded by a long series of decisions In Buddhu Misir v. Bhagi-rathi, AIR 1918 All 405 Buddhu was found entitled to obtain possession under O. 21, Rule 95, Civil P. C. and this Court held that it will exercise its powers of revision in his favour, notwithstanding the fact that there was another remedy open to him. In Lila v. Mahanee, AIR 1931 All 632 (FB) the matter related to the Succession Act, but the Full Bench held as follows :- "Section 115 is no doubt discretionary and, therefore, it is open to the High Court to decline to interfere in particular cases. As a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, parti cularly when that remedy is by way of appeal to a lower Court But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. The remedy by way of separate suit would involve a protracted litigation through several Courts and is not always a con venient remedy when more effective and speedy remedy is available. There is no jurisdiction for restricting the power conferred upon the High Court under Section 115 by laying down that no revi sion should be entertained when a remedy by suit lies. Each case must be con sidered in its own merits and if the Court below has acted without jurisdic tion or with material irregularity and the applicant has been seriously prejudiced an interference is called for in the in terest of justice; there is no reason why we should drive the applicant to a more circuitous remedy by way of a separate suit. We accordingly overrule the pre liminary objection." In Kesavalu Naidu v. Jayaganapathi, AIR 1936 Mad 940, the matter related to the maintainability of a revision against an order passed under O. 21, R. 100, Civil P. C. and it was held that a revision petition will lie; but the question will still remain whether the High Court should interfere in orders of this kind. It would thus appear that maintainability itself was not disputed, though actual interference may or may not take place, in the circumstances of a particular case. In Tulsi Charan Das v. Subal Chandra Das, AIR 1952 Cal. 9 the matter again related to an order passed under Order XXI, Rule 101, Civil Procedure Code Harries. C. J. observed :- "There is nothing in the actual terms of Section 115 of the Code which would prevent the Court hearing" this applica tion. Where the order sought to be revised is appealable then no revision lies. But this order was not appealable, although it could be challenged by way of a suit. There is, therefore, nothing in the plain terms of Section 115 of the Code of Civil Procedure which would bar this right of revision. This Court and others Courts constantly hear petitions for revision of orders made under O. XXI, Rule 58 of the Code of Civil Procedure and decisions upon applications under Order XXI, Rule 58 can be challenged by a suit under Order XXI, Rule 63 with in 12 months. If this Court has jurisdic tion to hear revisions from decision under Order 21, Rule 58 it clearly has the same jurisdiction to hear revisions from deci sions in applications under O. 21, R. 100. Reliance has been placed on a judgment of Sir George Rankin, C. J. in which he held that the Court Could not in the circumstances of that case, interfere. A Court is not bound to interfere under Section 115 of the Code of Civil Pro cedure. It has a discretion, and the fact that there is an alternative remedy may influence a'Court in the exercise of its discretion. It is one thing to say that the Court should not exercise its discre tion in favour of the petitioner, but it is an entirely different thing to say that it cannot ............... We overrule, there fore, the preliminary objection that no revision lies." In Mangilal v. Someli. AIR 1955 Assam 234, the matter related to O. 21, Rr. 58 and 63. Sarjoo Prasad, C. J. held:- "Mr. Das appearing on behalf of op posite parties, has raised a preliminary objection that the petitioner having a re medy open under Rule 63 of Order 21 by way of a suit, no relief should be given to him under Section 115. Civil P. C. It is true that the petitioner has a remedy by way of a suit, but if it is found that the order complained of does not decide the matter according to law, in other words, if there is a failure to exercise jurisdiction on the part of the Court below, in deciding the matter, or there is material illegality or irregularity in the exercise of such jurisdiction, this Court is not prevented from entertain ing the application in revision, merely because the petitioner has some other remedy also available." In Deo Karan v. Satyendra, AIR 1959 Cal 621, the matter related to O. 21, Rr. 97 and 103. and it was held that though the remedy by a suit under O. 21, R. 103 is available, yet it is no bar against maintainability of application under Section 115, and in a fit case the Court could revise the order although there is a remedy by way of a suit. In P. N. Singh v. Rang Nath, 1960 All LJ 79, it was held that it could not be laid down as a general proposition that the High Court has no power of interference at all or should not interfere in revision where there is another remedy by way of a suit open to the applicant. The pro vision that a regular suit may be filed under Order 21, Rule 63, Civil P. C. after an objection filed under Order 21, Rule 58 has been disposed of, does not, therefore, bar the consideration of the propriety of the decision by the Court below under Section 115, Civil P. C. To the same effect is the decision in Smt. Saida Begum v. Sabir AH, AIR 1962 All 9 and State v. Jagannath, AIR 1962 All 153. The preliminary objection is, therefore, overruled and it is held that the revision petition lies.
(3.) THE learned counsel for the petitioner has strenuously pressed that Order 21, Rule 100, Civil P. C. applies only in the case of actual dispossession and not in a case which relates to sym bolical or juridical dispossession and since the opposite party Abbas Ali was only in symbolical possession and since the petitioner Shamsuddin was also given possession of that very kind, therefore, the learned Civil Judge erred in apply ing Rule 100 to the case and restoring possession to the opposite party. Reliance for this proposition has been placed on various cases. The earliest case is Ibrahim Mullick v. Ram Jadu Rakshit, (1903) ILR 30 Cal 710. In that case Ram Jadu Rakshit obtained a decree for arrears of rent against his tenants and in execution of that decree, brought the defaulting tenure to sale and purchased it himself. Formal possession was deli vered to him. Ibrahim Mullick made an application under Section 335 of the old Code of Civil Procedure on the allegation that though he continued to be in pos session, formal possession over the tank had been given to Ram Jadu Rakshit and since this amounted to his dispos session, therefore, possession should be restored to him. The Calcutta High Court held:- "The question we have to consider is whether the applicant in the Court below was dispossessed within the mean ing of the section ............... On his own evidence he is still in possession; he has not been dispossessed. It is said that he has been dispossessed because symboli cal possession has been given of the tank in question to the petitioner. Whatever, as between the parties, ultimately may be the legal effect of this, it does not amount to the dispossession contemplated by Section 335". In Pera Naidu v. Soundaravalli Ammal, AIR 1954 Mad 516. Rama Swami Naicker purchased the disputed lands at a sale held by a certain co-operative society. Soundaravalli Ammal filed a suit for recovery of the lands against Naicker and others. An ex parte decree was passed against Naicker. In execu tion of the decree, Ammal obtained pos session over the lands. Pera Naidu and others filed an application under O. 21. R. 100 on the ground that they were brothers of Naicker, that they were all members of a joint undivided Hindu family, that the lands were joint Hindu family property, that the sale deed was exclusively in the name of Naicker, that accordingly Pera Naidu and the other petitioner were entitled to two-third share, that Naicker was not the manager of the Joint Hindu Family and con sequently the decree passed against him and the execution proceedings in con sequence thereof were not binding on them. They cltimed that Ammal had obtained symbolical possession and that did not bind them but if it would be found that Ammal obtained actual pos session it should "be re-delivered to them. It was held that Pera Naidu could main tain an application under O. 21, R. 100, Civil P. C. as co-owner provided he was in actual possession and was physically dispossessed but not otherwise. Venkata-rama Aiyar. J. held: "The object of these rules is to sustain the possession of persons who were not parties to the suit and who are in possession on their own account or on behalf of others who are not judgment-debtors. The scope of the enquiry under these rules is limited to finding whether the applicant was in possession at the time of delivery. If that is found he has to be restored back to possession. That clearly indicates that what the Court is concerned with is actual possession. Any question of juridical possession would be foreign to the nature and purpose of the enquiry." In Kesavan v. Neelkantan, AIR 1955 Trav-Co 225 (FB), the question for determination was whether an application under O. 21, R. 100, Civil P. C. could be made by a stranger to the decree before possession had been obtained by the decree-holder. The question in issue was not necessary for decision in that case. But the Full Bench made the following observations :- "Possession within the meaning of the rules has been held in (1903) ILR 30 Cal 710, by Maclean, C. J. to be khas possession. Symbolical possession is out side the ambit of the rules. It is clear, therefore, that the dispossession contem plated by Rule 100 after which alone a stranger can approach the Court for relief is actual dispossession". On the other hand, the learned coun sel for the opposite party has placed re liance on Mancharam v. Fakir Chand, (1901) ILR 25 Bom 478 and Brajabala Devi v. Gurudas Mundle. (1906) ILR 33 Cal 487 for his contention that dispos session includes actual as well as symbo lical dispossession. In Mancharam's case, (1901) ILR 25 Bom 478 he obtained a decree for possession of a certain shop against the tenants in occupation. On persisting to execute the decree, he was obstructed by his brother Fakirchand and he thereupon applied under Sec tion 328 of the Code of Civil Procedure (Act 14 of 1882) to have the obstruction removed. Fakir Chand alleged that the shop was joint family property and that the tenants against whom Macharam had obtained the decree, were the com mon tenants of both. He, therefore, con tended that Mancharam was not entitled to recover sole possession in execution. The subordinate Judge held that Sec tion 331 applied and directed that Fakir Chand's claim' should be numbered and registered as a suit between Mancharam as plaintiff and Fakir Chand as defendant. Mancharam contended that Section 331 did not apply as that section had application only where the obstruc tion was caused by a person actually in possession and that Fakir Chand was ad mittedly not in such possession. It was held that the word 'possession', as used in Section 331, is not limited to actual physical possession and that it includes also constructive possession, such as possession by a tenant. In Brajabala Devi's case, (1906) ILR 33 Cal 487 she obtained a decree for rent against Gurudas Mundle in respect of a holding and in execution of her decree she brought to sale and purchased the holding and was put in possession thereof by the. Court. Thereupon one Behari Lal Roy Chowdhury jointly with the said Gurudas Mundle applied to the Court under Section 335 of the old Code of Civil Procedure alleging that he was the landord of the holding, that Gurudas Mundle was his tenant in respect thereof and that both he and the said Gurudas Mundle had been dispossessed from the holding by the decree-holder. It was argued that as Behari Lal Roy Chow-dhury claimed to have been only in con structive possession he could not be said to have been dispossessed within the meaning of Sec. 335 and was consequently not competent to maintain an application under Section 335. Rampini and Mooker-jee. JJ. held:- "Now the terms 'possession' and 'Dispossession' are used not only in Sec tion 335 but also in Sections 331 and 332 of the Civil P. C, and the scope and' ob.iect of these sections indicate that these terms are used in the same sense throughout. If then we turn for a moment to Sections 318 and 319 of the Civil P. C., we find that the former deals with delivery of actual physical posses sion and the latter treats of the delivery of constructive possession, both referring, to delivery of property sold in execution of a decree. Provisions precisely analo gous are to be found embodied in Sec tions 263 and 264 of the Civil P. C. both of which refer to the delivery of im-moveable property covered by a decree. Prima facie, therefore, it is difficult to see why the term 'possession' in Section 335 of the Civil P. C. should be narrowly construed and why it should be limited only to the case of actual physical pos session. We must hold accordingly that the term 'possession' is not used in a restricted sense as relating to a mere tangible or physical possession but in cludes constructive possession or posses sion in law, by receipt of rent or other wise." Their Lordships then referred to a large body of authorities in support of that view. I may here mention that Sections 263, 264, 318, 319, 331, 332 and 335 correspond to present O. 21. Rr. 35, 36, 95, 96, 99, 100 and 101. There is apparently, therefore, a conflict between various High Courts as to the meaning and true import of the word 'disposses sion', as occurring in R. 100. There is no precedent of our own High Court cited before me.;