- (1.) THE present appeal filed by the appellant-original defendant arises out of the judgment and decree dated 8.7.2008, passed by Additional District Judge No. 1, Ajmer City, Ajmer,(hereinafter referred to as the appellate court), in Civil Appeal No. 91/2005, whereby the appellate court has dismissed the said appeal and confirmed the judgment and decree dated 25.9.1996, passed by the Additional Civil Judge(JD)Kishangarh, Ajmer, (hereinafter referred to as the trial court) in Civil Suit No. 234/93.
(2.) THE short facts, giving rise to the present appeal are that the respondent-plaintiff filed the suit against the appellant-defendant before the trial court seeking eviction of the Quarter No.43(hereinafter referred to as the suit premises),and seeking damages. It was alleged in the said suit that the respondent-plaintiff had purchased the suit property in the execution proceedings of a decree passed against one Mazdoor Vastra Utpadak Sahakari Samiti Ltd., (judgment-debtor, hereinafter referred to as "the Society ") and the sale certificate was also issued in that regard by the Executing Court in favour of the respondent-plaintiff on 5.10.1972. It was further alleged that the suit premises was allotted by the said Society to the appellant-defendant on hire purchase basis as she was the member of the Society. It was further alleged that pursuant to the order passed by the Executing Court in an application filed by the respondent-plaintiff, under Or. XXI Rule 96 C.P.C. for handing over symbolic possession of the suit premises, the respondent-plaintiff had given notice of attornment to the appellant-defendant, however, the appellant-defendant failed to attorn the plaintiff as the landlord and also failed to pay any rent in respect of the said premises. THE respondent-plaintiff again gave notice by registered post to the appellant defendant calling upon the appellant to attorn the plaintiff as landlord, which was replied to by the appellant-defendant claiming her title/ownership over the said premises. THE respondent-plaintiff, therefore, filed the suit against the appellant-defendant seeking possession of the suit premises, which was the Quarter No. 43 and also for recovery of damages. The said suit was contested by the appellant-defendant by filing written statement, contending interalia that the respondent-plaintiff was not the owner of the suit premises and the sale certificate issued in favour of the plaintiff was not effective in the eye of law. It was also contended that the allotment of the suit premises by the said Society to the appellant-defendant was as that of owner and not the tenant. The appellant-defendant also contended that the suit was not maintainable in view of the provisions contained in Or. XXI Rule. 95 and 96 as also Section 47 C.P.C, and that the suit was barred by law of limitation. The trial court after framing the issues and permitting the parties to lead their respective evidence and after hearing the learned counsels for the parties, decreed the suit of the respondent-plaintiff. Being aggrieved by the same, the appellant-defendant filed the appeal before the Appellate Court, which came to be dismissed vide the impugned judgment and decree. Being aggrieved by the same, the present appeal under Section 100 of C.P.C. has been filed by the appellant-defendant. It has been sought to be submitted by learned counsel Mr. Rajesh Kapoor for the appellant that both the courts below had failed to appreciate that the very suit of the respondent-plaintiff was not maintainable in the eye of law, in as much as, the respondent could not be said to be the owner of the suit premises. According to learned counsel for the appellant, the suit premises which was in possession of appellant could not have been sold in the execution proceedings as the appellant was allotted the same by the said Society as the owner and not as the tenant. Taking the Court to the order passed by the Executing court in the application under Or. XXI Rule. 96 read with Section 47 of C.P.C. filed by the respondent in the execution proceedings, he submitted that only symbolic possession was handed-over to the respondent by the Court and not the actual physical possession. Referring to one letter of Industrial Department addressed to the said Society, he submitted that the Industrial Department, who had allotted the land to the Society, was the owner of the land. It was further submitted that the appellant had paid all the installments as per the hire purchase agreement executed between the appellant and the Society, and hence the appellant had become the owner of the suit premises. According to him, there are substantial questions of law involved in the case, which require consideration. The learned senior counsel Mr. M.M. Ranjan, for the respondent-plaintiff, however, has submitted that the respondent having purchased the property in question through auction sale, held by the Executing Court in execution proceedings filed against the said Society, and the said sale having become final, the respondent had given notice of attornment to the appellant as the appellant was in possession of the suit premises. According to him, the appellant having denied the title of the respondent and having refused to attorn the respondent as the landlord, the suit was filed seeking possession of the suit premises. According to him, both the courts below have rightly appreciated the evidence led by the parties and there being no substantial question of law involved in the present appeal, the appeal deserves to be dismissed. In the instant case, it appears that pursuant to the auction sale held by the Executing Court at Ajmer in Civil Execution Case no. 3/68 (M/S Devendra Kumar Mool Chand Vs. Mazdoor Vastra Utpadak Sahakari Samiti Ltd.), the property of the said Society including the suit premises, was purchased by the respondent and the said sale was confirmed by the Court on 30.3.1972. The Executing Court also made the said sale absolute and issued certificate on 5.10.1972 Since the suit premises was in possession of the appellant, the respondent, had submitted an application before the Executing Court under Or. XXI R. 96 C.P.C. in respect of the suit premises and other premises of the said Society purchased by the respondent. It appears that the respective members of the said Society who were in possession of their respective quarters were also heard by the Executing Court at the relevant time in the said Application filed by the respondent. The Executing Court thereafter handed-over the symbolic possession of the suit premises to the respondent keeping the issue open as to whether the appellant and others were in possession of their respective premises as the tenants or in their personal capacity. It further appears that the respondent had thereafter given a notice of attornment to the appellant, however, the appellant refused to attorn the respondent as the landlord, and claimed the ownership of the suit premises. The appellant also raised the contention in reply to the said notice that the appellant was not the tenant but was the owner as the appellant had paid up the installments to the society towards the hire purchase agreement entered into between them. The respondent-plaintiff, therefore, filed the substantive suit against the appellant seeking possession of the said suit premises, which has been decreed by the courts below. Though, it was sought to be contended by the appellant-defendant that the appellant had become the owner of the suit premises on the payment of all installments to the said society, there was no document produced by the appellant before the courts below to substantiate such contention. Though there appears to be some substance in the submission made on behalf of the appellant that the suit premises i.e. the quarter in question was allotted by the said Society to the appellant as the member, and the appellant was to become the owner on the payment of all the installments, it appears that the appellant had not paid up all the installments and therefore no such ownership rights were transferred to the appellant. It further appears that on an application filed by the respondent before the Executing Court under Or. XXI Rule 96, symbolic possession was handed-over to the respondent-plaintiff. The said order has remained unchallenged at the instance of the appellant. It is also pertinent to note that the appellant at no point of time has challenged the auction proceedings held by the Executing Court, in which the respondent had purchased the property of said society, by raising the contention that the appellant was the owner of the suit premises and not the society. Such orders in execution proceedings having become final, it is too late in the light of the day for the appellant to contend in the suit filed by the respondent that the appellant had become the owner of the suit premises.
(3.) THERE is also no substance in the submissions made by the learned counsel for the appellant that the respondent could not have filed the suit seeking recovery/possession,as all the questions were required to be decided by the Executing Court under Or. XXI Rule 101 of C.P.C. The appellant having failed to challenge the orders of the Executing Court, confirming the sale of the suit premises in favour of the respondent, issuing the sale certificate in favour of the respondent and handing over symbolic possession of the suit premises to the respondent, the appellant can not be permitted to challenge the legality and validity of said orders in the present suit proceedings filed by the respondent-plaintiff. It is also pertinent to note that Rule 101 of Or. XXI would come in to play where any application under Rule 97 or Rule 99 is filed by the objector. In the instant case, the Executing Court had handed over symbolic possession of the suit premises to the respondent in the application filed by the respondent under Rule 96 , and therefore, there was no occasion for the Executing Court to decide any question under Rule 101, on any application under Rule 97 or Rule 99 of O. XXI. As rightly submitted by Mr. Ranjan, the respondent having been handed over only the symbolic possession in respect of the suit premises, which was in possession of the appellant, the respondent had filed the separate suits for recovery of possession, against all such members of the Society, who were in possession of their respective part of the property of the said Society purchased by the respondent. The learned counsel for the appellant has also failed to point out any question of law much less substantial question of law involved in this appeal and therefore, also the present appeal does not deserve any consideration. In view of the above, the appeal being devoid of merits deserves to be dismissed and is hereby dismissed .;