D.S. Bajpai, J. - (1.) THESE three second appeals arise out of similar cases and so they were heard together and are being disposed of by a common judgment. All the three second appeals have been filed against the judgment and decree order dated 10th May, 1985 passed by the v. Additional District Judge, Gonda confirming the judgment and decree order dated 30th May, 1983 passed by Munsif Utraula, district Gonda in suit No. 1 of 1983. Briefly stated the facts are that the Respondent Tirath Ram was a tenant of the first floor of the house in dispute situate in Mohalla Arya Nagar of Utraula town in district Gonda and the said Respondent having defaulted in payment of rent the Appellants filed a suit for recovery of arrears of rent, as also for his eviction from the premises. This was registered as Small Cause Suit No. 1 of 1983. The Respondent, Tirath Ram, it is asserted, inspite of notice did not put in appearance and consequently the Judge Small Causes Court decreed the suit on 01.02.1983. The Appellants moved an application for execution Under Order 21 Rule 35 of the Code of Civil Procedure.
(2.) THE house in dispute is said to have originally belonged to one Srimati Sampata Devi who executed a registered Sankalap Nama in favour of Srimati Suraj Kala and her husband, Chhotey Lai. Chhotey Lai is said to have predeceased Srimati Suraj Kala whereupon Srimati Suraj Kala executed a Will in favour of the Appellant, who was her daughter's son, in the year 1968 and as such the Appellant became the owner of the house in suit. The ground floor was being used by the Appellant for residence while the first floor was let out to Tirath Ram, Respondent. The Appellant was residing is district Bahraich along with his father and whenever came to Utraula he used to stay in the ground floor portion of the house. Respondent Malti Devi had also filed a suit for cancellation of the Sankalap Nama and also set up a Will that the property in dispute had been bequeathed to her. The Respondent Malti Devi, it was alleged, taking benefit of the absence of the Appellant locked the premises which was let out to Respondent Tirath Ram who had since gone to Gonda and the husband of the Respondent Malti Devi having put obstacles in the way of the Appellant to take possession the Appellant had to move the execution court for delivery of possession. The possession was delivered to the Appellant. The Commissioner who had gone for delivery of possession also mentioned in his report about delivery of possession with regard to the ground floor also whereupon the Appellant filed objection before the execution court. The execution court failed to decide the said objections and also did not give any opportunity for leading evidence. A similar application was filed by Smt. Malti Devi and one Sanjai Kumar son of Jwala Prasad. One Aas Mohammad had also filed objections. These objections under Order 21 Rule 99 of the Code of Civil Procedure were fixed for disposal and the Appellants having no knowledge of the same filed an application for adjournment to the effect that their guardian had gone to Patna. Thereafter the case was fixed for disposal on 30th May, 1983 when the application was rejected. The Appellants' objections were not disposed of whereupon the Appellants filed an appeal before the lower appellate court. In the appeals they prayed for being permitted to file certain documents which they could not file before the trial court but the said documents which were filed along with an application were not considered and the lower appellate court dismissed the appeals with costs whereupon the instant second appeals have been filed. I have heard learned Counsel for the parties and perused the record. The learned Counsel for the Appellants has firstly submitted the objections filed by the Respondents Under Order 21 Rule 99 of the Code of Civil Procedure in respect of a property which was not the subject matter of the suit the decree was not maintainable and that in any case the Appellants having taken objection to the Commissioner's report the said report could not be read in evidence without disposing of the objections. The other contention is that the lower appellate court could not proceed and decide the appeal without first disposing of the application Under Order 41 Rule 27 Code of Civil Procedure Other points regarding the decision of the case in abject hurry as also misreading of evidence have also been canvassed.
(3.) ORDER 21 Rule 99 of the Code of Civil Procedure reads as Under: 99. Dispossession by Decree -holder or Purchaser - (1) Where any other person than the judgment -debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property had been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. The scope of authority under the following Rule 100 of the Code of Civil Procedure is that the Court can make an order allowing the application and directing that the applicant be put into possession of the property or dismissing the application or such other order as, in the circumstances of the case, it may deem fit. Rule 101 of the Code lays down that 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 law for the time being in force, be deemed to have jurisdiction to decide such questions. It is pertinent to point out that the courts below herein have not resorted to process provided Under Rules 100 and 101 of Order 21 of the Code of Civil Procedure and the objections preferred by Aas Mohammad claiming to be a tenant .of a portion on behalf of Smt. Malti Devi could not be entertained under these circumstances. The Appellants had filed objections only about the first floor accommodation. A perusal of the judgment of the lower appellate court indicates that the decision recorded was on the basis of the statement made by Respondent Tirath Ram that since he had vacated the accommodation immediately after filing of the suit he did not contest the suit and that was one of the grounds on which the appeal was dismissed. I am constrained to point out that the trial court having failed to decide relevant question that may be determined as per provisions of Order 21 Rule 101 pertaining to the title, right or interest the order stands vitiated. This was also not considered by the lower appellate court and it fell in error in not considering the same. Secondly the subject matter of controversy was only delivery of possession of the ground floor and not the first floor and the court below fell in error in considering otherwise. The fact that objections to the Commissioner's report were never decided is born out from the record and as such no reliance could be made on the Commissioner's report. Reasonable opportunity has also not been given to the Appellants in filing the objections and prosecuting their case. Learned Counsel for the Respondent submitted that since original proceedings were under the Provincial Small Cause Courts Act no second appeal would lie and in this connection has relied on Section 104 of the Code of Civil Procedure. Section 104 of the Code of Civil Procedure provides for an appeal to lie from the orders indicated therein and lays down as otherwise expressly provided in the body of the Code and includes in Clause (ff) an Order Under Section 35A as also Clause (h) an order under any provisions of the Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree is appealable. Learned Counsel for the Appellants on the other hand, contended that this was not in exhaustion of Section 24 of the Provincial Small Cause Courts Act 1887 and the order specified in Clauses (ff) and (h) of Sub -section (1) of Section 104 of the Code of Civil Procedure is appealable before the District Judge and the appeal lies. I find that the order being an order which is appealable the appeal would lie and a second appeal would also lie to this Court since no such second appeal has been prohibited Under the Code or other law in force. The objection of the learned Counsel stands rejected.;