# Jahid Khan and Anr v. Suresh Chand Jain & Ors

- **Citation:** (2013) 2 ILRA 1087
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-02
- **Case number:** Civil Misc. Writ Petition No. 30548 of 2012
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jahid-khan-and-anr-v-suresh-chand-jain-ors-42557
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order 21 Rule
97- Objection filed by petitioner-rejected
1088 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

as the petitioner not disclosed as to how
come into possession-appeal under order
21 rule 103 also rejected-in view of law
as developed by Apex Court-a person
resisting execution of decree claiming
possession-before execution of decreeadjudication of objectors claim is mustorder quashed-matter remanded back
for reconsideration.

Held: Para-14
In view of the above decisions of the
Supreme Court the law appears to be
settled that once a complaint resisting or
obstructing a decree execution of a
decree
of
possession
of
immovable
property is made by a person claiming to
be in possession, his rights thereof are
liable to be adjudicated first before he is
dispossessed and he should not wait for
loosing possession to the decree holder
and then to make an application under
Rule 99 of Order 21 CPC.

Case Law discussed:
AIR 1997 SC 856; AIR 1998 SC 1827; (2000)
10 SCC 405

## Text

2 All] Jahid Khan and Anr. Vs. Suresh Chand Jain & Ors.

1087
tenant being unauthorised occupation
without an allotment order at later stage in
2007-08 and that gave him cause of action
for treating the premises to be under
deemed vacancy and available for seeking
an order of release.

20. The principle in the case of
Mansaram (supra) that power vested in an
authority
must
be
exercised
in
a
reasonable
manner
and
within
a
reasonable time flows from Article 14 of
the Constitution of India and may apply at
best only where the information about the
unauthorised occupation was available to
the District Magistrate/R.C.E.O., but they
failed to exercise their power in a
reasonable manner or within a reasonable
time. The responsibility or duty of
reasonableness cannot be fastened upon
private person, a future allottee, i.e.
prospective tenant or a landlord seeking
release. Their rights flowing from the
Statute have to be governed by provisions
of the Act itself. As discussed earlier, the
right flowing from the Statute cannot be
curtailed or abridged by reading power
into the authority such as District
Magistrate to reject the application for
release on the ground of limitation. Being
a creature of the Statute, the District
Magistrate must act within four corners of
the Statute and cannot assume a power
not vested in him, such as a power to
reject the application for release on the
ground of limitation not prescribed by the
Statute.

21. For all the aforesaid reasons, we
have no hesitation in answering the
questions under reference in the following
terms:-

(i)Answer
to
Question
No.(a):-
Release application by landlord cannot be
treated to be barred by limitation even if
the same is presented after more than 12
years from the date person has entered
into an unauthorised occupation of the
premises covered by the Act.

(ii)Answer to Question No.(b):- In
absence of any limitation being provided
under the Act for initiation of release
proceedings
in
respect
of
deemed
vacancy, no period of limitation can be
read in the statutory provisions only on
the principle that a power vested in an
authority must be exercised within a
reasonable time.

22. The reference having been
answered, we remit all the matters back to
the concerned Bench for disposal of the
writ petitions as per law in the light of
discussions made in this judgment and the
answer to the questions of law referred to
us.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 30548 of 2012
with W.P. 31464 of 2012

Jahid Khan and Anr.

 ...Petitioner
Versus
Suresh Chand Jain & Ors ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Srivastava
Smt. Alka Srivastava

Counsel for the Respondents:
Sri Shashi Nandan, Sri Vikrant Rana

Code of Civil Procedure-Order 21 Rule
97- Objection filed by petitioner-rejected
1088 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

as the petitioner not disclosed as to how
come into possession-appeal under order
21 rule 103 also rejected-in view of law
as developed by Apex Court-a person
resisting execution of decree claiming
possession-before execution of decreeadjudication of objectors claim is mustorder quashed-matter remanded back
for reconsideration.

Held: Para-14
In view of the above decisions of the
Supreme Court the law appears to be
settled that once a complaint resisting or
obstructing a decree execution of a
decree
of
possession
of
immovable
property is made by a person claiming to
be in possession, his rights thereof are
liable to be adjudicated first before he is
dispossessed and he should not wait for
loosing possession to the decree holder
and then to make an application under
Rule 99 of Order 21 CPC.

Case Law discussed:
AIR 1997 SC 856; AIR 1998 SC 1827; (2000)
10 SCC 405

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Petitioners are resisting the
execution of the decree passed in Original
Suit No. 221 of 1983 which has become
final on the ground that their shops exist
on the disputed land and since they were
not party to the suit, the said shops can
not be demolished and they are not liable
for eviction therefrom.

2. The objections of the petitioners
to the execution of the decree preferred
under Order 21 Rule 98 CPC were
rejected as not maintainable and their
appeal under Rule 103 of Order 21 CPC
has also been dismissed.

3. The above two orders dated
24.5.2012 and 29.5.2012 have been
impugned in this writ petition.

4. Sri Santosh Kumar Srivastava,
learned counsel for the petitioners and Sri
Shashi Nandan, Senior Advocate assisted
by Sri Vikrant Rana, learned counsel for
respondents no. 1,2 and 3 were heard and
they had agreed for final disposal of the
writ petition on the basis of the averments
made in the writ petition and the counter
affidavit on record.

5. The basic submission of the
learned counsel for the petitioners is that
the courts below are not justified in
rejecting the objections of the petitioners
as not maintainable. The petitioners can
not be evicted from their shops and it can
not be demolished pursuant to the decree.
The decree is not binding upon them as
they are not party to it and are not
claiming any rights through the judgment
debtors of the said decree.

6. The contention from the other
side is that the decree has attained finality
and has to be executed in the form it exits.
The petitioners have failed to disclose the
manner in which they have acquired
rights over any part of the suit property.
Their remedy, if any, lies in making
application under Rule 99 of Order 21
CPC if at all they are dispossessed
illegally in the execution proceedings and
the objections on their behalf under Rule
97 of Order 21 are not maintainable.

7. In view of the rival submissions
of the parties let me first examine as to
whether petitioners are entitle to resist the
decree by filing objections under Rule 97
of Order 21 CPC.

8. Order 21 Rule 97 CPC has to be
read in conjunction with Order 21 Rule 99
CPC. Rule 97 is actually a remedy
available to the decree holder to make a
2 All] Jahid Khan and Anr. Vs. Suresh Chand Jain & Ors.

1089
complaint to the executing court, if
execution of the decree is resisted or
obstructed by any person in possession of
the property. At the same time Rule 99 of
Order 21 CPC stipulates that where any
person other than judgment debtor is
dispossessed
from
the
immovable
property by the decree holder, he can
apply to the court complaining about such
dispossession. The executing court in both
the cases is under obligation to determine
the rights of the parties and the order is
appellable as decree under Rule 103 of
Order 21 CPC.

9. For the sake of convenience Rule
97 and 99 of order 21 CPC are reproduced
herein below:--

97. Resistance or obstruction to
possession of immovable property-.

"(1) Where the holder of a decree for
the possession of immovable property or
the purchaser of any such property sold in
execution of a decree is resisted or
obstructed by any person obtaining
possession of the property, he may make
an application to the Court complaining of
such resistance or obstruction.

(2) Where any application is made
under sub-rule (1), the Court shall
proceed to execute upon the application in
accordance with the provisions herein
contained."

99. Dispossession by decree-holder
or purchaser-

(1) Where any person other 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 has 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."

10. A plain reading of Rule 97
literally provides for a remedy available
to the decree holder who is being
obstructed in the execution of decree by a
third party claiming to be in possession of
the property. It is not a remedy available
to the person resisting or obstructing the
decree.
Nonetheless,
visualizing
the
hardship
faced
by
the
person
in
possession, the Supreme Court formed an
opinion that it is improper to allow a
person
in
possession
to
be
first
dispossessed
and
then
to
make
a
complaint about his dispossession and
therefore it is always in the interest of
justice that his rights be adjudicated
before he is actually dispossessed.

11.

Thus
in
Brahmadev
Chaudhary
Vs.
Rishikesh
Prasad
Jaiswal and another AIR 1997 SC 856
after considering the provisions of Rule
97 and 99 of Order 21 CPC it was ruled
that where a decree of possession is
obstructed by a stranger claiming himself
to be in possession, his rights are to be
adjudicated
before
he
looses
his
possession to the decree holder.

The Court observed as under:-

"Once resistance is offered by a
purported stranger to the decree and
which comes to be noted by the Executing
1090 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Court as well as by the decree holder the
remedy available to the decree holder against
such an obstruction is only Order XXI, Rule
97 sub-rule (1) and he can not by pass such
obstruction and insist on re-issuance of
warrant for possession under Order XXI.
Rule 35 with the help of police force, as that
course would amount to by-passing and
circumventing the procedure laid down
under Order XXI. Rule 97 in connection
with removal of obstruction of purported
strangers to the decree. Once such an
obstruction is on the record of the Executing
Court is is difficult to appreciate how the
Executing Court can tell such obstructionist
that he must first lose possession and then
only his remedy is to move an application
under Order XXI, Rule 99 CPC and pray for
restoration of possession."

12. A similar question whether the
third party in possession of the property
claiming independent right as a tenant and
not party to a decree in execution could
resist such decree by seeking adjudication
of his objections under Order 21 Rule 97
CPC come up for consideration before the
Supreme
Court
in
Shreenath
and
another Vs. Rajesh and others AIR
1998 SC 1827. Their Lordships of the
Supreme Court held that any person
claiming rights of his own in the suit
property can resist the execution by filing
objections under Order 21 Rule 97 CPC
and he need not wait for his dispossession
and thereafter file objections/application
under Rule 99 of Order 21 CPC. It means
that a stranger in possession claiming
independent rights in the property can
object and get his rights adjudicated prior
to his dispossession by the decree holder
under Rule 97 of Order 21 CPC.

13. A similar view has also been
expressed by the Supreme Court in Anwarbi
Vs. Pramod D.A. Joshi and others (2000)
10 SCC 405. In the said case while
considering the provisions of Order 21 Rule
97 CPC their Lordships held where the
execution of a decree is obstructed by a third
party, it is the decree holder who has to take
appropriate steps under Order 21 Rule 97
CPC for removal of obstructions and to get
the rights of the parties adjudicated and that
when a person in possession of immovable
property obstructs the execution of the decree
he may not be dispossessed till his rights are
adjudicated in execution proceedings and the
decree holder can not take possession unless
such proceedings terminated in his favour.

14. In view of the above decisions of
the Supreme Court the law appears to be
settled that once a complaint resisting or
obstructing a decree execution of a decree
of possession of immovable property is
made by a person claiming to be in
possession, his rights thereof are liable to
be
adjudicated
first
before
he
is
dispossessed and he should not wait for
loosing possession to the decree holder
and then to make an application under
Rule 99 of Order 21 CPC.

15. In the light of the above legal
position, the courts below fell in error in
rejecting objections of the petitioners
under Rule 97 of Order 21 CPC as not
maintainable. The rights of the petitioners
have not been adjudicated by any of the
courts on merit.

16. The appellate court has only
stated that the petitioners in their
objections have not clarified the location
of their shops and therefore are not entitle
to any protection.

17. The decree passed in Original
Suit No. 221 of 1983 is in respect of
2 All] Jitendra Kumar and Ors. Vs. State of U.P. and Ors.

1091
khasra no. 1203 area 1bigha 3 biswa and
khsra no. 1245/A area 1 bigha, situate in
quasba Baraut, District Baghpat.

18. The decree is for injunction in
respect of land of khasra no. 1245/A and
for eviction of the defendants in respect of
land of khasra no. 1203. The petitioners in
the writ petitions are claiming that their
shops having area of 8ft./31 ft. with a
sahan 8ft/15 ft. is on part of khasra no.
1203.

19. The contesting respondents are
probably
not
disputing
the
above
contention of the petitioners but in
paragraph 10 of the counter affidavit they
allege that the petitioners have not stated
anything as to how they have acquired
rights or possession over the said property
and that as per the Amin report dated
5.8.1983 they are not in possession of any
part of the said land.

20. In view of the above, it was
incumbent upon the courts below in
deciding the objections of the petitioners
to find out the nature of the rights of the
petitioners over the disputed part of the
property and as to whether their shops
form part of the suit land.

21. The courts below have not dealt
with any of the above aspects while
rejecting the objections.

22. In view of the aforesaid facts
and circumstances, I am of the opinion
that the matter requires reconsideration by
the executing court on merits of the
objections preferred by the petitioners
under Order 21 Rule 97 CPC.

23. Accordingly, the impugned
orders dated 24.5.2012 and 29.5.2012are
quashed and the matter is remanded to the
executing court for fresh decision of the
objections under Order 21 Rule 97 CPC
in accordance with law as expeditiously
as possible preferably within a period of
six months from the date of production of
the certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.33260 of 2012

Jitendra Kumar and Ors.
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri M.M. Sahai, Sri R.Sahai

Counsel for the Respondents:
C.S.C., Sri K.K. Chand

Constitution
of
India,
Art.-226-
Appointment
of
post
of
U.P.
Rojgar
Guarantee Yojna-as per notification dt.
23.10.2008-Chapter Viii Para 8.1. minimum
qualification
is
post
graduate
with
computer awareness-must contention that
are M.A. under B.C. category be given
appointment
merely
with
B.
Tech
qualification-held-parity can be claimed
positive consideration two wrong can not
make one right-rightly not considered for
appointment-petition dismissed.

Held: Para-7
It is well settled that if a wrong has been
committed by the respondents in respect
to some other persons, that will not
provide a cause of action to claim parity
on the ground of equal treatment since
the equality in law under Article 14 is
applicable for claiming parity in respect
to legal and authorized acts. Two wrongs
will not make one right.