# Shankar Lal Gupta v. Ashok Kumar Gupta & Anr

- **Citation:** (2024) 5 ILRA 841
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-22
- **Case number:** Matter Under Article 227 No. 1441 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankar-lal-gupta-v-ashok-kumar-gupta-anr-52005
- **Pages:** 5

## Headnote

Civil Law - Civil Procedure Code,1908 -
Order XXI Rule 97, 98, 99, 100 & 102 -
Transfer of Property Act - Section 52 -
Petitioner claims to be in possession of
property by virtue of transfer of possession
by erstwhile tenant - Executing court
rejected his application filed under O. XXI
R. 97 C.P.C - Held, petitioner is transferee
of property by tenant who was ousted by
decree of eviction - No agreement between
landlord and petitioner - There was no
lawful transfer of premises by tenant to
842 INDIAN LAW REPORTS ALLAHABAD SERIES
third party, if third party paid any amount
of consideration to enter into possession by
writing on a piece of paper, which is an
unregistered document, his status is liable
to be reduced to a trespasser - He was
given possession with tacit consent of
decree holder, every transaction was
claimed between petitioner and erstwhile
tenant - Trial court directed him to produce
documents,
failed
to
produce
any
document
except
an
unregistered
agreement and tax receipts - Documents
don't give any conclusive proof of title, to
sustain possession of petitioner so as to
entitle him to resist recovery of possession
- Petition lacks merit, dismissed. (Para 3, 9,
13)

Petition dismissed. (E-13)

List of Cases cited:

## Text

5 All. Shankar Lal Gupta Vs. Ashok Kumar Gupta & Anr.
841
generation of the E-Way Bill, as the same
had expired ten days before the detention.
However, it is to be noted that the goods in
the vehicle were for two e-Invoices and two
E-Way Bills and only one E-Way Bill had
expired. There is no dispute with regard to
the consignor and consignee nor any dispute
with regard to the description of the goods
in the vehicle. In relation to the e-Invoices
and the E-Way Bills, the authorities have not
been able indicate any intention whatsoever
on behalf of the petitioner to evade tax.
Indubitably, there is a technical violation
that has been committed by the petitioner.
However, the authorities have not been able
to indicate in any manner that the E-Way
Bill had been used repeatedly nor have they
made out any case with regard to an
intention to evade tax by the petitioner.
Accordingly, this Court is of the view that
such a technical violation by itself without
any intention to evade tax cannot lead to
imposition of penalty under Section 129(3)
of the Act. This view is fortified by a catena
of judgments as indicated above."

13. In the facts and circumstances, it is
clear that only violation is a technical one
wherein E-Way Bill was not present in the
vehicle. However, it is clear that the E-Way
Bill had been downloaded prior to the
interception of the vehicle. Furthermore,
invoice and the E-Way Bill matched with
the goods in the vehicle, and accordingly,
one can infer that there was no mens rea for
the evasion of tax.

14. In light of the above discussion,
I am of the view that there was no intention
to evade tax on the part of the petitioner.
Further, respondent authorities failed to
check the genuinness of the E-Way Bill
number as informed by the driver from the
GST portal and did not provide an
opportunity of hearing to the petitioner
which was against the principles of natural
justice which strenghtens my view that the
authorties did not act in accordance with the
law.

15. Accordingly, the writ petition is
allowed. The impugned orders dated
January 4, 2020 and May 21, 2019 are
hereby quashed and set aside.

16. The respondent authorities are
directed to refund the amount of tax and
penalty deposited by the petitioner within a
period of four weeks from the date of this
judgment.
----------
(2024) 5 ILRA 841
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matter Under Article 227 No. 1441 of 2024

Shankar Lal Gupta ...Petitioner
Versus
Ashok Kumar Gupta & Anr. ...Respondents

Counsel for the Petitioner:
Dipti Tiwari, Manas Bhargava

Counsel for the Respondents:
Manish Tandon

Civil Law - Civil Procedure Code,1908 -
Order XXI Rule 97, 98, 99, 100 & 102 -
Transfer of Property Act - Section 52 -
Petitioner claims to be in possession of
property by virtue of transfer of possession
by erstwhile tenant - Executing court
rejected his application filed under O. XXI
R. 97 C.P.C - Held, petitioner is transferee
of property by tenant who was ousted by
decree of eviction - No agreement between
landlord and petitioner - There was no
lawful transfer of premises by tenant to
842 INDIAN LAW REPORTS ALLAHABAD SERIES
third party, if third party paid any amount
of consideration to enter into possession by
writing on a piece of paper, which is an
unregistered document, his status is liable
to be reduced to a trespasser - He was
given possession with tacit consent of
decree holder, every transaction was
claimed between petitioner and erstwhile
tenant - Trial court directed him to produce
documents,
failed
to
produce
any
document
except
an
unregistered
agreement and tax receipts - Documents
don't give any conclusive proof of title, to
sustain possession of petitioner so as to
entitle him to resist recovery of possession
- Petition lacks merit, dismissed. (Para 3, 9,
13)

Petition dismissed. (E-13)

List of Cases cited:

1. Jahid Khan & anr. Vs Suresh Chand Jain &
ors., 2013 (6) ADJ 547

2. Salik Ram Singh @ Salik Ram Vs Additional
District Judge, Court No.- 3, Gonda & ors., 2022
(3) ADJ 380

3. Sudhir Kumar & ors. Vs Smt. Omwati & ors.;
2018 (6) AWC 6113

(Delivered by Hon'ble Ajit Kumar, J.)

1. Supplementary affidavit filed
today is taken on record.

2. Heard Sri Manas Bhargava,
learned counsel for the petitioner and Sri
Manish Tandon, learned counsel for the
contesting respondents.

3. Petitioner before this court
claims to be in possession of the property
in question by virtue of transfer of
possession given to him by erstwhile
tenant and is aggrieved by the order passed
by the executing court rejecting his
application being Paper No.- 4-C filed
under Order XXI Rule 97 C.P.C.

4. Petitioner does dispute the title
of decree holder in respect of the property
in question but submits that manner in
which his application is rejected is against
the principle contained in the provisions of
Order XXI Rule 97, 98, 99 and 100 C.P.C.

5. It is further contended by
learned counsel for the petitioner that he
has instituted a suit for permanent
prohibitory injunction against the decree
holder being O.S. No.- 1269 of 2023 in
which he is enjoying temporary injunction
order against decree holder and, therefore,
so long as interim order is continuing,
petitioner cannot be evicted by the
executing court in satisfaction of the
decree.

Learned counsel for the petitioner
has placed reliance upon the judgment of
a coordinate Bench of this Court in the
case of Jahid Khan and another v.
Suresh Chand Jain and others, 2013 (6)
ADJ 547 and in the case of Salik Ram
Singh @ Salik Ram v. Additional
District Judge, Court No.- 3, Gonda and
others, 2022 (3) ADJ 380.

6. Per contra, Sri Manish Tandon,
learned counsel for the respondent- decree
holder submits that against the order of
temporary injunction passed in the suit, the
decree holder had preferred misc. Civil
Appeal No.- 117 of 2023 which has now
been finally disposed of on 15th May, 2024
rejecting 6-C application and setting aside
the order dated 4th October, 2023 passed by
the trial court. Thus, according to him, there
is no more injunction operating in favour of
the petitioner.
5 All. Shankar Lal Gupta Vs. Ashok Kumar Gupta & Anr.
843
7. It is also submitted by learned
counsel for the respondent that petitioner is
a rank trespasser and has stepped into the
shoes of tenant after the decree of eviction
was passed. So, any transfer of possession
even by executing an unregistered document
is of no value and would stand hit by Section
52 of the Transfer of Property Act. It is
contended that if any amount has been paid
by the petitioner to the erstwhile tenant of
the answering respondent - decree holder,
petitioner has a right to recover the same by
instituting an appropriate suit but he cannot
resist the recovery of possession of the
premises as a lawful transferee of the
property.
He
submits
that
if
such
unscrupulous elements are permitted to bank
with the trespass activity, then there will be
no end of litigation and it will become very
easy to frustrate a lawful decree repeatedly.

8. In support of his argument
learned counsel for the respondent has relied
upon the judgment of a coordinate Bench in
the case of Sudhir Kumar and others v.
Smt. Omwati and others; 2018 (6) AWC
6113.

9. Having heard learned counsel for
the respective parties and their arguments
raised across the bar and having noticed the
pleadings raised before this Court as well as
before the executing court, the admitted
position comes out to be that answering
respondent is the title holder of the suit
property. It is also an admitted position that
petitioner was nowhere in scene when the
judgment and decree was passed by the trial
court. As per his own pleadings he is a
transferee of the property by a tenant who
was ousted by the decree of eviction. There
being no agreement between the landlord
and the petitioner and the earlier sitting
tenant faced with the decree of eviction, in
my considered view, there could not have
been any lawful transfer of premises in
question by such tenant to a third party and
if third party paid any amount of
consideration to enter into possession by
writing a note on a piece of paper, which in
the
present
case
is
admittedly
an
unregistered document, his status is liable to
be reduced to a trespasser.

10. It is settled law that no one can
pass on a better title than what he has, so any
such transfer of possession by a person
holding it to be entitled to pass on a
possession is liable to be rendered as
unlawful and void. The petitioner did
institute a suit in which ultimately he has
lost injunction application at the stage of
appeal. Pleadings as to possession are only
to the effect that he is occupying the
premises easementary. For a person to have
lawful possession to resist a decree holder,
the claim to be set up must be a genuine one.
One has to show that he was a bona fide
purchaser or person with bona fide
possession of the property to resist the
execution proceedings instituted by the
decree holder. In the case of Sudhir Kumar
(supra) the Court has dealt with this aspect
of the matter referring Order XXI Rule 102
of C.P.C. The Court vide paragraph 6 has
held thus:

"6. A perusal of the record shows
that admittedly, Anant Ram had sold the
property (which was subject- matter of
agreement
to
sale)
to
the
applicants/appellants on 10.6.1997. The
Civil Appeal No. 66 of 1996 has been
decided on 8.10.1999, meaning thereby that
the disputed property has been sold during
the pendency of Civil Appeal No. 66/1996,
which is not permissible under law in wake
of the bar created by the doctrine of lis
pendens and also in view of Order XXI, Rule
102, C.P.C.
844 INDIAN LAW REPORTS ALLAHABAD SERIES
(1) Order XXI, Rule 102 of Civil
Procedure Code runs as under:
"Rule not applicable to transferee
pendente-lite.- Nothing in Rules 98 and 100
shall apply to resistance or obstruction in
execution of a decree for the possession of
immovable property by person to whom the
judgment-debtor
has
transferred
the
property after the institution of the suit in
which the decree was passed or to the
dispossession of any such person."
(2) A bare perusal of the above cited
provision leaves no room for any doubt that
any pendente-lite transferee of the subjectmatter of the decree will have no right and
will not be entitled to offer any resistance or
obstruction in delivery of possession to the
decree-holder of the subject- matter of the
decree,
in
execution
of
the decree.
Accordingly, he would not be entitled to file
objections under Order XXI, Rule 97 of the
Civil Procedure Code. A further perusal of
the provisions contained in Rule 102 would
make it clear that no such defence would be
available to such pendente-lite transferee
that he was a bona-fide purchaser with
consideration and without notice.
Rule 102 of Order XXI of the Civil
Procedure Code, need to be necessarily read
with the provision of Section 52 of the
Transfer of Property Act, 1882. For a ready
reference Section 52 of the Transfer of
Property
Act,
1882
is
reproduced
hereinbelow :
"Transfer of property pending suit
relating thereto.-During the pendency in any
court having authority within the limits of
India excluding the State of Jammu and
Kashmir or established beyond such limits
by the Central Government of any suit or
proceeding which is not collusive and. in
which any right so immovable property is
directly and specifically in question, the
property cannot be transferred or otherwise
dealt with by any party to the suit or
proceeding so as to affect the rights of any
other party thereto under any decree or
order which may be made therein, except
under the authority of the court and on such
terms as it may impose.
Explanation.-For the purposes of
this section, the pendency of a suit or
proceeding shall be deemed to commence
from the date of the presentation of the plaint
or the institution of the proceeding in a court
of competent jurisdiction, and to continue
until the suit or proceeding has been
disposed of by a final decree or order, and
complete satisfaction or discharge of such
decree or order has been obtained, ог has
become unobtainable by reason of the
expiration of any period of limitation
prescribed for the execution thereof by any
law for the time being in force."
(3) A bare perusal of the provision
contained in Section 52 of the Transfer of
Property Act would also make it clear that
defence of being bona-fide purchaser with
consideration and without notice are not
available to pendente-lite transferee.
(4) Thus, the applicant- objector
was not entitled or competent to resist or
obstruct the delivery of the subject-matter
of the decree to the decree-holder."
(Emphasis added)

11, Insofar as the judgment in the
case of Jahid Khan (supra) is concerned,
resistance or obstruction to possession of
immovable property if set up by a person has
to be adjudicated upon, suffice it to hold that
there has to be given a harmonious
construction of the different rules provided
under Order XXI as Rule 98 to 101 C.P.C.

12. Some semblance of genuine
right has to be found in the application itself
moved by a person resisting recovery of
possession in order to attract the principle of
adjudication.
5 All. Mamta Kapoor & Anr. Vs. Vinod Kumar Rai
845
13. From a bare reading of various
paragraphs of miscellaneous application
filed under Order XXI Rule 97 C.P.C., the
only pleading is that he was given
possession with a tacit consent of the decree
holder, otherwise every transaction was
claimed between the petitioner and the
erstwhile tenant. This application has been
considered on merits and it has been held
that petitioner was required earlier under
order dated 2nd August, 2022 to produce the
necessary documents but he failed to
produce
any
document
except
an
unregistered agreement and the tax receipts.

14. The Court has categorically
recorded a finding that these documents do
not give any conclusive proof of title to
sustain possession of the petitioner so as to
entitle him to resist recovery of possession.

The court sitting in revision has
affirmed the order of the trial court and held
that the court cannot go beyond the decree
as the plea was taken that the court passing
the decree had no jurisdiction to pass it.

15. I, therefore, do not find any
error in the findings returned even by the
court sitting in revision.

16. Insofar as the judgment in the
case of Salik Ram (supra) is concerned, that
case is in the setting of different facts and,
therefore, distinguishable. It is to be borne in
mind that merely because the provisions are
there entitling a third party to resist the
recovery of possession, does not mean that
the court will embark upon an inquiry in
every case in detail. The court as a matter of
fact will have to look into the genuine case
set up and if a third party fails to lead any
evidence, this Court has no option but to
hold him such a party who would be not
entitled to any possession. Order XXI Rule
102 of C.P.C. is very much clear on the
point.

17. Thus, petition lacks merit and is,
accordingly, dismissed.
----------
(2024) 5 ILRA 845
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Matter Under Article 227 No. 4127 of 2023

Mamta Kapoor & Anr. ...Petitioners
Versus
Vinod Kumar Rai ...Respondent

Counsel for the Petitioners:
Mr. Ujjawal Satsangi

Counsel for the Respondent:
---

Civil Law - Commercial Courts Act, 2015
- Section 2(1)(c)(vii) - Definition -
Commercial Dispute - Petitioners and
Respondent
entered
into
business
agreement for running Hotel - In
pursuance of this, a total amount of
Rs.30,00,000/- was to be paid by
petitioners to respondent as security -
Thereafter, the petitioners approached
electricity department for verification
of
dues
and
to
obtain
electricity
connection
-
The
Petitioners
were
informed about installation of separate
transformer for electricity supply -
Petitioners informed the Respondent,
asked to obtain necessary certification
from electricity department - Disputes
arose
between
them
-
Petitioners
approached
Commercial
Court
-
Refused, on the ground that it was not
used for trade or commerce - Impugned
order - Held, agreement between both
parties was for business operation and
management of Hotel - Disputes of