# Santosh Singh Revisionist v. Smt. Suman Shukla & Anr

- **Citation:** (2024) 9 ILRA 1359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-19
- **Case number:** S.C.C. Revision No. 1 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-singh-revisionist-v-smt-suman-shukla-anr-52555
- **Pages:** 10

## Headnote

A. Civil Law - Provincial Small Cause Court
Act,1887-Section
25-dispute
over
the
execution of an ejectment decree for a
shop-The revisionist filed an ejectment
suit claiming landlord-tenant relations
with the defendant, who failed to pay rent
from May 2009-the trial court passed an
ex-parte decree in favour of the revisionist
in 2013-wife of the defendant claimed
ownership of the shop based on a sale
deed executed by Shyam Lal in 2012-the
defendant's contested the revisionist's
ownership and denied landlord-tenant
relations-the
wife
of
defendant
filed
objection-The court held that SCC can
incidentally decide title disputes arising
during execution proceedings as per Order
XXI Rule 97 CPC, but such findings do not
have res judicata effect-The executing
court
accepted
defendant's
wife
ownership claim based on her registered
sale deed, setting aside the revisionit's
decree-SCCs have limited jurisdiction to
address incidental title disputes during
ejectment suits-A decision on title by SCCs
is subject to further adjudication by
competent civil courts-The High Court
dismissed the revision petition affirming
the lower court's decision, while clarifying
that it does not bar the revisionist from
filing a regular civi suit to establish
title.(Para 1 to 25)

The revision is dismissed. (E-6)
List of Cases cited:

## Text

9 All. Santosh Singh Vs. Smt. Suman Shukla & Anr.
1359
are directed to furnish the personal bonds
and two sureties each to the satisfaction of
the court concerned within a period of eight
weeks from today.

62. Let the trial court record along
with a copy of this judgment be transmitted
forthwith to the learned trial Court for
information and necessary compliance.
----------
(2024) 9 ILRA 1359
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

S.C.C. Revision No. 1 of 2023

Santosh Singh ...Revisionist
Versus
Smt. Suman Shukla & Anr. ...Respondents

Counsel for the Revisionist:
Km. Vishwa Mohini, Vimal Kumar

Counsel for the Respondents:
--

A. Civil Law - Provincial Small Cause Court
Act,1887-Section
25-dispute
over
the
execution of an ejectment decree for a
shop-The revisionist filed an ejectment
suit claiming landlord-tenant relations
with the defendant, who failed to pay rent
from May 2009-the trial court passed an
ex-parte decree in favour of the revisionist
in 2013-wife of the defendant claimed
ownership of the shop based on a sale
deed executed by Shyam Lal in 2012-the
defendant's contested the revisionist's
ownership and denied landlord-tenant
relations-the
wife
of
defendant
filed
objection-The court held that SCC can
incidentally decide title disputes arising
during execution proceedings as per Order
XXI Rule 97 CPC, but such findings do not
have res judicata effect-The executing
court
accepted
defendant's
wife
ownership claim based on her registered
sale deed, setting aside the revisionit's
decree-SCCs have limited jurisdiction to
address incidental title disputes during
ejectment suits-A decision on title by SCCs
is subject to further adjudication by
competent civil courts-The High Court
dismissed the revision petition affirming
the lower court's decision, while clarifying
that it does not bar the revisionist from
filing a regular civi suit to establish
title.(Para 1 to 25)

The revision is dismissed. (E-6)
List of Cases cited:

1. Mohd. Hamid Vs Mohdd Moin (2018)AIR
Online Alld 2663 (Neutral Citation No:- 2018 :
AHC 104118)

2. Budhu Mal Vs Mahabir Prasad (1988) 4 SCC 194

3. Noorduddin Vs K.L. Anand (Dr)(1995) 1 SCC
242

4. Nirmal Jeet Singh Hoon Vs Irtiza Hussain
(2010) 14 SCC 564

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. By means of the instant revision
filed under Section 25 of the Provincial
Small Cause Court Act, 1887, the revisionpetitioner has prayed for setting aside the
judgment and an order dated 21.05.2022
passed by the learned Additional District
Judge/Special Judge, P.C. Act, Court no. 3,
Lucknow in Miscellaneous Case No. 39-C
of 2013, which was registered upon an
application under Order XXI Rules 97, 98,
99 read with 101 of Civil Procedure Code
filed in Execution Case No. 01 of 2013,
which execution case was filed for
execution of the ejectment decree passed
by the learned Additional District Judge,
Court no. 13, Lucknow in SCC Suit No. 72
of 2010.
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The aforesaid SCC Suit was
filed by the revision-petitioner against the
opposite party no. 2 - Santosh Shukla
pleading that the petitioner was the owner
and landlord of House 294/90 situated at
Mohalla Bazar Khala, Lucknow. The
defendant was his tenant in respect of one
of the shops situated on the ground floor of
the building at Rs 3,000/- per month rent.
The defendant did not pay rent to the
plaintiff-revisionist after April, 2009 and he
was in arrears of rent since 01.05.2009. On
11.06.2010, the plaintiff had sent a notice
under Section 106 of the Transfer of
Property Act which was served upon the
defendant but the defendant did not pay
rent of the premises to the plaintiff and he
did not vacate the shop in his tenancy. As
there was a typographical error in the
notice dated 11.06.2010, inasmuch instead
of a single door shop, a two door shop was
wrongly been mentioned in the notice, the
plaintiff
sent
another
notice
dated
12.07.2010. The defendant sent a reply
dated 03.07.2010 denying the averments
made in the plaintiff's notice.

3. The trial court has recorded in
the judgment and order dated 12.04.2013
that the summons of the Suit was deemed
to be sufficient on 03.02.2012 as the
defendant had declined to receive the
notice and on 30.03.2012 the Suit was
ordered to proceed ex-parte. The trial court
has made a narration of the documentary
evidence filed by the plaintiff and his
affidavit filed in evidence. The trial court
reproduced the plaint averments and noted
that in the reply dated 03.07.3010 sent in
response to the notice under Section 106 of
the Transfer of Property Act, the defendant
had denied the relationship of landlord and
tenant between him and the plaintiff. The
trial court mentioned that the plaintiff had
filed counterfoils of receipts for payment of
rent
dated
01.07.2008,
01.08.2008,
03.09.2008,
02.01.2009,
02.02.2009,
04.03.2009 and 01.04.2009 alongwith a list
of documents filed with the plaint and held
that the defendant has not filed any
evidence to rebut the plaintiff's evidence
and, therefore, the plaintiff's case was
proved ex-parte. Accordingly, the plaintiff's
suit was decreed.

4. The opposite party filed an
application under Order IX Rule 13 C.P.C.,
which was registered as Miscellaneous
Case No. 28-C of 2013. However, it was
dismissed by means of an order dated
07.10.2016 wherein it is recorded that the
applicant's counsel stated that he did not
want to press the application.

5. The plaintiff-revisionist filed
Execution Case No. 1 of 2023 for
execution of the decree dated 12.04.2013
passed in S.C.C. Suit No. 72 of 2010.

6. The opposite party no. 1 -
Suman Shukla filed an application under
Order XXI Rules 97, 98, 99 read with 101
C.P.C. in Execution Case No. 1 of 2023.
This
application
was
registered
as
Miscellaneous Case No. 39-C of 2013. The
opposite party no. 1 stated in the
application that she has purchased the shop
in question from Shyam Lal son of Sunder
Lal through a sale deed dated 14.03.2012,
which was registered in the office of Sub
Registrar-V, Lucknow in Book No. 1,
Volume 7518 at pages from 197 to 234 at
Serial No. 2797. House No. 294/90
Mohalla Bazar Khala is a big house, a
portion whereof has been sold by Shyam
Lal to opposite party no. 1. Shyam Lal has
sold another portion of the house to Sayeed
Ahmad and Smt. Radha Agarwal and some
other tenants are in occupation of a third
portion of the house of Shyam Lal for the
9 All. Santosh Singh Vs. Smt. Suman Shukla & Anr.
1361
past several years. The opposite party no. 1
further stated that her husband Santosh
Shukla (opposite party no. 2) is a person of
low
intellect
and
she
bears
the
responsibility of bringing up and educating
her children. Upon coming to know that the
opposite party no. 1 has purchased the shop
from Shyam Lal, the revisionist Santosh
Singh started harassing her, due to which
she had filed Regular Suit No. 320 of 2012
in the court of Civil Judge (Senior
Division), Mohanlalganj, Lucknow for a
decree of perpetual injunction. From the
documents filed by the revisionist in the
aforesaid Suit, the opposite party no. 1
came to know about S.C.C. Suit No. 72 of
2010 and the ex-parte judgment and decree
dated 12.04.2013 passed therein as also the
Execution Case No. 1 of 2023. She stated
that the revisionist had filed the Suit against
the husband of the opposite party no. 1 -
who is a person of low intellect and had
obtained the ex-parte judgment and decree
dated 12.04.2013 fraudulently, whereas
Santosh Singh is neither owner of the shop
in question nor is he the landlord. She
stated that the house in which the shop in
question is situated, was ancestral property
of Shyam Lal and having purchased the
shop from Shyam Lal, the opposite party
no. 1 is the owner and in possession of the
shop. The opposite party no. 1 prayed that
an order be passed on the points raised by
her, the ex-parte decree dated 12.04.2013
passed in S.C.C. Suit No. 72 of 2010 be set
aside and the revisionist be restrained from
interfering in her possession of the shop.

7. The revisionist filed objections
against the aforesaid application inter alia
stating that the opposite party no. 1 has
obtained a sale deed from a person, who
has never been the owner of the property in
question. The opposite party no. 1 was not
a party to the Suit in which the decree has
been passed and, therefore, she cannot file
any objection in the execution proceeding.
The opposite party no. 1 could have filed a
separate Suit for adjudication of her rights.
The revisionist claimed that he was the
owner of the property in question by virtue
of the last will deed dated 15.03.1980
executed by its previous owner Sri
Kedarnath.

8. The learned Additional District
Judge/Special Judge, PC Act, Court no. 3,
Lucknow
has
allowed
the
aforesaid
application filed by opposite party no. 1 by
the impugned judgment and order dated
21.05.2022 wherein as many as 12 issues
were framed, including the issue as to
whether opposite party no. 1 is the owner
and in possession of the property in
dispute. The parties
had
filed
only
documentary evidence in support of their
respective claims. The Court held that on
the strength of the sale deed dated
14.03.2012 executed by Shyam Lal, the
opposite party no. 1 is the owner of the
property in question and, accordingly, the
Court set aside the judgment and decree
dated 12.04.2013 passed in S.C.C. Suit No.
72 of 2010.

9. The learned counsel for the
revision-petitioner has submitted that a
Judge
Small
Cause
Court
has
no
jurisdiction to decide the question of title
and when such questions cannot be decided
by the Small Cause Court in a Suit, those
questions cannot be decided in execution
proceedings also. In deciding the question
of title and returning a finding that the
opposite party no. 1 is the owner of the
premises in question, the trial court has
acted without jurisdiction. The learned
counsel for the petitioner has relied upon a
decision rendered by a Co-ordinate Bench
of this Court in Mohd. Hamid Vs. Mohd.
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
Moin: AIR Online 2018 Alld 2663 (Neutral
Citation No. - 2018:AHC:104118), in
which the case of the revisionists in their
objection under Order 21 Rule 97 C.P.C.,
was that they had acquired title to the house
on the basis of oral Hiba made by their
father and father-in-law on 13.10.2002
whereas the opposite party claimed title
through a registered sale deed in his favour
executed by the father and father-in-law of
the revisionist. In this factual background, a
coordinate Bench of this Court held that: -

"It is settled law that any
dispute of title in proceedings for
arrears of rent and eviction is
beyond
the
scope
of
the
proceedings. Now a dispute of title
is
being
raised
through
the
objection under Order 21 Rule 97
C.P.C. at the execution stage.
10.
In
my
considered
opinion, a question, which was
beyond
the
scope
of
the
proceedings, the decree whereof is
sought to be executed would also
be beyond the scope of the
execution proceedings because the
dispute of title could not have been
decided by the SCC Court itself. "

10. The jurisdiction of Small
Cause Courts is provided in Chapter III of
the Provincial Small Cause Courts Act,
1887 (which will hereinafter be referred to
as 'the Act of 1887'). Section 15 of the Act
of 1887, as it applies to the State of Uttar
Pradesh, provides as follows: -

"15. Cognizance of suits by
Courts of Small Cause.-
(1) A Court of Small Cause
shall not take cognizance of the
suits
specified
in
the
second
schedule as suits excepted from the
cognizance of a Court of Small
Cause.
(2)
Subject
to
the
exceptions
specified
in
that
schedule and to the provisions of
any enactment for the time being in
force, all suits of a Civil nature of
which the value does not exceed
twenty five thousand rupees shall
be cognizable by a court of Small
Cause.
Provided that in relation to
suits by the lessor for the eviction
of a lessee from a building after the
determination of his lease, or for
recovery from him of rent in respect
of the period of occupation thereof
during the continuance of the lease,
or of compensation for the use and
occupation
thereof
after
such
determination
of
lease,
the
reference in this sub-section to one
lakh rupees shall be constructed as
a reference to five thousand rupees.

Explanation.-For
the
purposes of this sub-section, the
expression "building has the same
meaning as in Article (4) in the
Second Schedule.
(3) Subject as aforesaid,
the State Government may, by
order in writing direct that all suits
of a civil nature of which the value
does not exceed three thousand
rupees shall be cognizable by a
court of Small Cause mentioned in
the order."

11. The suits excepted from the
cognizance of a Court of Small Cause are
mentioned
in
the
Second
Schedule
appended to the Act of 1887 and Article (4)
of the said Schedule, as it applies to the
State of Uttar Pradesh, is as follows: -
9 All. Santosh Singh Vs. Smt. Suman Shukla & Anr.
1363
"(4)
a
suit
for
the
possession of immovable property
or for the recovery of an interest in
such property, but not include a suit
by a lessor for the eviction of a
lessee from a building after the
determination of his lease, and for
the
recovery
from
him
of
compensation for the use and
occupation of that building after
such determination of lease.
Explanation.-For
the
purposes
of
this
Article,
the
expression
'building'
means
a
residential
or
non-residential
roofed structure, and includes any
land
(including
any
garden),
garages
and
out-houses,
appurtenant to such building and
also includes any fittings and
fixtures affixed to the building for
the more beneficial enjoyment
thereof."

12. Therefore, Small Cause Courts
in the State of Uttar Pradesh have
jurisdiction to entertain a suit by a lessor
for the eviction of a lessee from a building
after the determination of his lease and for
the recovery from him of compensation for
the use and occupation of that building
after such determination of lease.

13. Section 23 of the Provincial
Small Cause Courts Act, 1887 provides
that: -

"23. Return of plaints in
suits involving questions of title.-
(1) Notwithstanding anything in the
foregoing portion of this Act, when
the right of a plaintiff and the relief
claimed by him in a Court of Small
Cause depend upon the proof or
disproof of a title to immovable
property or other title which such a
court cannot finally determine, the
court may at any stage of the
proceedings return the plaint to be
presented
to
a
court
having
jurisdiction to determine the title.
(2)***"

14. In Budhu Mal v. Mahabir
Prasad: (1988) 4 SCC 194, the Hon'ble
Supreme Court held that: -

"10. It is true that Section
23 does not make it obligatory on
the Court of Small Cause to
invariably return the plaint once a
question of title is raised by the
tenant. It is also true that in a suit
instituted by the landlord against
his tenant on the basis of contract
of tenancy, a question of title
could also incidentally be gone
into and that any finding recorded
by a Judge, Small Cause in this
behalf could not be res judicata in
a suit based on title. It cannot,
however, be gainsaid that in
enacting Section 23 the legislature
must have had in contemplation
some cases in which the discretion
to return the plaint ought to be
exercised in order to do complete
justice between the parties. On the
facts of the instant cases we feel
that these are such cases in which
in order to do complete justice
between the parties the plaints
ought to have been returned for
presentation to a court having
jurisdiction to determine the title.
In case the plea set up by the
appellants that by the deed dated
December 8, 1966 the benefit
arising out of immovable property
which itself constituted immovable
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
property was transferred and in
pursuance
of
the
information
conveyed in this behalf by Mahabir
Prasad to them the appellants
started paying rent to Smt Sulochna
Devi and that the said deed could
not be unilaterally cancelled, is
accepted, it is likely not only to
affect the title of Mahabir Prasad
to realise rent from the appellants
but will also have the effect of
snapping even the relationship of
landlord
and
tenant,
between
Mahabir Prasad and the appellants
which could not be revived by the
subsequent unilateral cancellation
by Mahabir Prasad of the said deed
dated December 8, 1966. In that
event it may not be possible to treat
the suits filed by Mahabir Prasad
against the appellants to be suits
between
landlord
and
tenant
simpliciter based on contract of
tenancy in which an issue of title
was incidentally raised. If the suits
cannot be construed to be one
between landlord and tenant they
would not be cognizable by a Court
of Small Cause and it is for these
reasons that we are of the opinion
that these are such cases where the
plaints ought to have been returned
for presentation to appropriate
court so that none of the parties
was prejudiced."
(Emphasis added)

15. When the suit filed by the
revision-petitioner
against
the
alleged
tenant Santosh Shukla already stands
decreed and the opposite party claims to
have acquired ownership of the property in
dispute through a sale-deed executed by its
previous owner, the adjudication of the
claim of the opposite party becomes
incidental to adjudication of the plaintiff's
claim for a decree for ejectment and its
execution, which question can be decided
by the Small Cause Court. Therefore, in my
considered opinion, the Small Cause Court
has not acted without jurisdiction in
deciding this incidental question as per the
law laid down by the Hon'ble Supreme
Court in Budhu Mal (Supra).

16. In Mohd. Hamid (Supra), the
case of the revisionists in their objection
under Order XXI Rule 97 C.P.C. was that
they had acquired title to the house on the
basis of oral Hiba made by their father and
father-in-law on 13.10.2002 whereas the
opposite party claimed title through a
registered sale-deed in his favour executed
by the father and father-in-law of the
revisionist. In the present case, the tenant -
defendant did not claim title in himself, but
it is his wife, who claimed a title
independent to that of her husband, stating
that she has acquired ownership of the
house through a registered sale-deed
executed by the previous owner of the
property, whereas the landlord is claiming
title on the basis of a will. There is no
averment
regarding
the
will
being
registered.
There
is
a
presumption
regarding a correctness of the endorsements
made on a registered sale deed but a will
would stand proved by the statements of its
attesting witnesses only. The facts of the
present case are different from the facts of
Mohd. Hamid (Supra) and, therefore, the
ratio of law laid down in Mohd. Hamid
(Supra) will not apply to the facts of the
present case.

17. The learned counsel for the
revision-petitioner has next submitted that
the opposite party no. 1 was not a party to
the Suit or the execution proceedings.
Therefore, she had no locus to file any
9 All. Santosh Singh Vs. Smt. Suman Shukla & Anr.
1365
application under Order XXI Rules 97, 98,
99 and 101 and the relief sought by
opposite party no. 1 through her application
was also beyond the scope of the aforesaid
Rules.

18. Rules 97, 98, 99 and 101
C.P.C. provide as follows: -

"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 in 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 adjudicate
upon the application in accordance
with
the
provisions
herein
contained.
98. Orders
after
adjudication.-
(1)
Upon
the
determination of the questions
referred to in Rule 101, the court
shall, in accordance with such
determination and subject to the
provisions of sub-rule (2);-
(a) make an order allowing
the application and directing that
the applicant be put into the
possession of the property or
dismissing the application; or
(b) pass such other order
as, in the circumstances of the case,
it may deem fit.
(2)
Where,
upon
such
determination, the court is satisfied
that the resistance or obstruction
was occasioned without any just
cause by the judgment-debtor or by
some other person at his instigation
or on his behalf, or by any
transferee, where such transfer was
made during the pendency of the
suit or execution proceeding, it
shall direct that the applicant be
put into possession of the property,
and where the applicant is still
resisted or obstructed in obtaining
possession, the court may also, at
the instance of the applicant, order
the judgment-debtor or any person
acting at his instigation or on his
behalf, to be detained in the civil
prison for a term which may extend
to thirty days.
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.
* * *
101. 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
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. The scope of Order XXI Rule
97 C.P.C. was explained by the Hon'ble
Supreme Court in Noorduddin v. K. L.
Anand (Dr): (1995) 1 SCC 242, in the
following words: -

"8. Thus, the scheme of
the Code clearly adumbrates that
when an application has been
made under Order 21, Rule 97, the
court is enjoined to adjudicate
upon the right, title and interest
claimed in the property arising
between
the
parties
to
a
proceeding or between the decreeholder and the person claiming
independent right, title or interest
in the immovable property and an
order in that behalf be made. The
determination shall be conclusive
between the parties as if it was a
decree subject to right of appeal
and not a matter to be agitated by a
separate suit. In other words, no
other proceedings were allowed to
be taken. It has to be remembered
that preceding Civil Procedure
Code Amendment Act, 1976, right
of suit under Order 21, Rule 103 of
1908 Code was available which
has been now taken away. By
necessary
implication,
the
legislature relegated the parties to
an adjudication of right, title or
interest in the immovable property
under execution and finality has
been accorded to it. Thus, the
scheme of the Code appears to be
to put an end to the protraction of
the execution and to shorten the
litigation between the parties or
persons claiming right, title and
interest in the immovable property
in execution.
9. Adjudication
before
execution is an efficacious remedy
to
prevent
fraud,
oppression,
abuse of the process of the court
or miscarriage of justice. The
object of law is to mete out justice.
Right to the right, title or interest of
a party in the immovable property
is a substantive right. But the right
to an adjudication of the dispute in
that behalf is a procedural right to
which no one has a vested right.
The faith of the people in the
efficacy of law is the saviour and
succour for the sustenance of the
rule of law. Any weakening like
(sic) in the judicial process would
rip apart the edifice of justice and
create a feeling of disillusionment
in the minds of the people of the
very law and courts. The rules of
procedure have been devised as a
channel or a means to render
substantive or at best substantial
justice which is the highest interest
of man and almameter (sic) for the
mankind. It is a foundation for
orderly human relations. Equally
the judicial process should never
become
an
instrument
of
oppression or abuse or a means in
the process of the court to subvert
justice. The court has, therefore,
to wisely evolve its process to aid
expeditious
adjudication
and
9 All. Santosh Singh Vs. Smt. Suman Shukla & Anr.
1367
would preserve the possession of
the property in the interregnum
based
on
factual
situation.
Adjudication under Order 21, Rules
98, 100 and 101 and its successive
rules is sine qua non to a finality of
the adjudication of the right, title
or interest in the immovable
property under execution.
10. The question is whether
the executing court was right in
dismissing the application on the
ground
that
the
dispute
was
adjudicated in RFA No. 305 of 1986
or as held by the High Court that
the dispute was decided in the writ
proceedings referred to earlier. The
execution court is enjoined to
adjudicate
the
claim
or
the
objection
or
the
claim
to
resistance. As seen, Rule 97
enables such a person to make an
application
which
must
be
independent of the judgmentdebtor or a person having derivate
right from the judgment-debtor.
The applicant in his own right
must be in possession of the
property. Admittedly, neither the
appellant nor his father was a
party to the suit or appeal.
Therefore, the decree per force
does not bind him. In the writ
proceedings, though Nanu was
impleaded as 5th respondent, no
relief was claimed against him nor
a finding adverse to him has been
recorded. Thereby, there is no
adverse finding recorded either in
the suit or in the writ proceedings
against the appellant or his father.
Under these circumstances, when
the appellant has been claiming
right, title and interest in Khasra
No. 179 from which he is now
sought to be dispossessed in
execution of the decree by the
respondent in respect of Khasra
Sakni Nos. 13 and 14, the
executing court necessarily has to
go into the question whether the
property in Khasra No. 179 is part
of Khasra Sakni Nos. 13 and 14
and if so, whether the respondent
while
executing
the
decree
trenched upon his property and
sought to dispossess him. The
appellant's
possession,
pending
adjudication, needs to be protected
by interim orders. Unfortunately,
the courts below had not adverted
to these crucial aspects of the
matter. When the appellant claimed
independent right, title and interest
and resisted the execution, the
decree-holder or the appellant
should make an application under
Rule 97(1) and the court, in that
event, is enjoined to adjudicate the
claim
and
record
a
finding,
allowing or rejecting the claim. It
should
be
remembered
that
Parliament intended to shorten the
litigation and to give effect to it, a
simplified procedure was devised
for adjudication. On the basis of
the fact situation and the nature of
the controversy, the claim has to be
adjudicated expeditiously in a
period not exceeding six months
and preferably on day to day basis
by putting an end to the tendentious
conduct
of
prolonging
the
proceedings by suitable orders."
(Emphasis added)

20. Therefore, when the opposite
party no. 1 claimed that the property in
question had been purchased by her from
its previous owner through a registered
1368 INDIAN LAW REPORTS ALLAHABAD SERIES
sale-deed, she had locus standi to claim that
she had the right to resist her ejectment
through execution proceedings instituted
for execution of a decree which was passed
in a suit in which she was not a party.
Executing Court has rightly gone into the
question
in
exercise
of
jurisdiction
conferred by Order XXI Rule 97 C.P.C.
The order passed by the executing Court
cannot be said to be without jurisdiction.

21. The learned counsel for the
petitioner has lastly submitted that the trial
court has decided the intricate question of title
merely after looking into the documentary
evidence and without giving any opportunity
to the parties to adduce any oral evidence to
prove their case whereas there was nothing on
record to prove the title of Shyam Lal from
whom the opposite party no. 1 claims to
derived title in respect of the property in
question and, therefore, the title of the opposite
party no. 1 was not established.

22. In Nirmal Jeet Singh Hoon v.
Irtiza Hussain, (2010) 14 SCC 564, the
Hon'ble Supreme Court explained the scope
and effect of Section 23 of the Act of 1887 by
relying upon the precedent in the case of
Budhu Mal (Supra) and reiterated that "the
finding on the issue of title recorded by the
Small Cause Court does not operate as res
judicata and ultimately the issue of title has
to be adjudicated upon by the competent civil
court."

23. When we reconcile the ratio of
law laid down in Noorduddin and Nirmal
Jeet Singh Hoon (Supra), the correct position
of law which emerges is that the Small Cause
Courts has limited jurisdiction to go into the
question of title incidentally for deciding the
claim of the landlord for a decree of ejectment
and execution thereof. However, the Small
Cause Courts decide the cases in a summary
manner and the finding returned by a Small
Cause Court regarding title of the rival parties
will not operate as res judicata in a subsequent
suit filed by the landlord in regular Civil Court
claiming a decree on the basis of his title.

24. Therefore, the finding returned by
the executing Court in proceedings for
execution of a decree of a Small Cause Court
will not affect the revision-petitioner's right to
file a suit for recovery of possession of the
property after establishing his right thereto on
the basis of his claim to title of the property,
which claim shall be decided by the Civil
Court after adjudicating the rival claims to
title of the property and the findings returned
by the Small Cause Court in the impugned
order will not operate as res judicata in that
suit.

25. In view of the foregoing
discussion, this Court is of the considered view
that there is no illegality in the judgment and
an order dated 21.05.2022 passed by the
learned Additional District Judge/Special
Judge, P.C. Act, Court no. 3, Lucknow in
Miscellaneous Case No. 39-C of 2013
warranting any interference by this Court in
exercise of its revisional jurisdiction conferred
by Section 25 of the Act of 1887. The revision
lacks merits and it is dismissed, subject to the
observations made in this judgment.
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(2024) 9 ILRA 1368
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

S.C.C. Revision No. 12 of 2024

Rakesh Gupta ...Revisionist
Versus
Smt. Shail Kumari Gupta ...Respondent