Sahifa Khatoon, wife of late Md. Zahiruddin v. Both resident of Thanatoli Lohardaga, P.O. and P.S. Lohardaga, District
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.12 of 2024 ------ (Against the judgment dated 12.12.2023 passed by the learned Principal District Judge, East Singhbhum at Jamshedpur in Civil Misc. Appeal No.17 of 2022) 1. Md. Alim, aged 59 years, son of late Md. Manjoor 2. Jashmina Khatoon, aged 46 years, wife of Md. Alim Both resident of H. No.132, Nepali Basti, Purani Basti, Jugsalai, P.O. and P.S. Jugsalai, Town, Jamshedpur, District East Singhbhum, Jharkhand- 831006 .... .... …. Petitioners/Appellants 1. Hanifa Khatoon, wife of Md. Abdul Gaffar 2. Sahifa Khatoon, wife of late Md. Zahiruddin Versus Both resident of Thanatoli Lohardaga, P.O. and P.S. Lohardaga, District- Lohardaga, Jharkhand .... .... …. Respondents For the Appellants For the Respondents ------
Legal Reasoning
: Mr. Sanjay Kr. Pandey, Advocate : Mr. Parth S.A.S. Pati, Advocate Mr. Akshay Kumar, Advocate ------ P R E S E N T HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2. This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of affirmance dated 12.12.2023 passed by the learned Principal District Judge, East Singhbhum at Jamshedpur in Civil 1 S.A. No.12 of 2024 Misc. Appeal No.17 of 2022 by which the learned first appellate court has dismissed the Civil Misc. Appeal being devoid of any merit. 3. The brief facts of the case is that the respondents are the decree holder of eviction suit No.11 of 2009 passed against Md. Qayum- the defendant ex-parte. The said decree was not challenged and the same has attained finality. The respondent-decree holder levied execution Case No.77 of 2010 in the court of learned Civil Judge, Junior Division, Jamshedpur. The appellants herein who were not parties to the said eviction suit No.11 of 2009, resisted the execution by claiming their right, title and interest over the suit property. The only document they could produce, regarding possession over the suit property, was the Voter I.D. Card and electric energy bills. Their application filed under Order XXI Rule 99 of the Code of Civil Procedure was registered as Misc. Case No.08 of 2015. The appellants who were the petitioners of the said Misc. Case examined three witnesses while the respondents/opposite parties of the said Misc. Case No.08 of 2015 examined a single witness. 4. The learned Additional Civil Judge (Junior Division), Jamshedpur on the basis of the rival pleadings settled the following four issues: - (I) Whether the objectors came into possession of the decretal premises through Md. Qayum? (II) Whether the objectors have independent right, title and interest over the decretal premises? (III) How and when the objectors came into possession of the suit premises? (IV) Whether decree has been obtained by plaintiffs in fraudulent manner? 2 S.A. No.12 of 2024 5. The learned Civil Judge (Junior Division), Jamshedpur first took up issue No.IV and came to the conclusion that it being the executing court cannot go beyond the decree and cannot hold that the decree obtained by the plaintiffs in a fraudulent manner. The Civil Judge (Junior Division), Jamshedpur next took up issue Nos. I, II and III together and held that Voter I.D. Card and electric energy bill are not documents of title and as the appellants/applicants could not prove that Basiran Bibi whose name has been mentioned to be in Sikmi Dakhal of Khata No.120 has transferred title or possession of the decretal premises to the appellants/applicants of the present case and the same cannot be proved by the appellants/applicants, the Civil Judge (Junior Division), Jamshedpur, concluded that the appellants have failed to prove that they have independent right, title or interest over the decretal premises and failed to prove as to how and when they came in possession of the decretal premises and decided the Misc. Case No.08 of 2015 in favour of the opposite party and directed the appellants/applicants to hand over the possession of the decretal premises to the decree holder. 6. Being aggrieved by the order dated 30.07.2022 in Misc. Case No.08 of 2015 passed by the learned Additional Civil Judge (Junior Division), Jamshedpur, the appellants/applicants filed Civil Misc. Appeal No.17 of 2022. The learned first appellate court after observing that except Voter I.D. Card and electricity energy connection, the appellants/applicants have no document to establish his possession; and came to the conclusion that the 3 S.A. No.12 of 2024 appellants/applicants have failed to establish any independent right or legal possession of the suit premises and dismissed the appeal. 7. Learned counsel for the appellants submits that both the courts below have failed to consider as to whether a power-of-attorney holder could have deposed on behalf of its principal, in respect of the questions of facts, which are especially in the knowledge of principal only and whether the suit could have been decreed without the plaintiffs themselves entering into the witness-box to support their case. It is then submitted that the judgment passed by the learned first appellate court and the order passed by the learned Civil Judge, (Junior Division), Jamshedpur in Misc. Case No.08 of 2015 be set aside and the petition of the appellants/applicants filed under Order XXI Rule 99 of the Code of Civil Procedure be allowed; after formulating appropriate substantial questions of law. 8. Learned counsel for the respondents on the other hand vehemently opposes the prayer and submits that it is a settled principle of law that executing court cannot go beyond the decree. It is next submitted by the learned counsel for the respondents that the undisputed fact remains that the judgment and decree passed by the learned trial court in eviction suit No.11 of 2009 has remained unchallenged and attained finality. The appellants/applicants were not even a party to the eviction suit No.11 of 2009, hence, he has no locus standi to challenge the judgment passed in the said eviction suit No.11 of 2009 on merits. It is then submitted that the appellant having no independent right or possession, was not entitled to resist the 4 S.A. No.12 of 2024 execution of the said decree under execution. It is next submitted that as has rightly been held by both the courts below, the appellants/applicants have failed to establish any independent right, title or interest over the land in question and that there is no perversity in such finding of fact. Under such circumstance, both the courts have rightly dismissed the application and the appeal respectively, this second appeal being without any merit be dismissed. 9. Having heard the submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that under Order XXI Rule 97 of the Code of Civil Procedure, a person intending to resist execution of a decree may make on application to the court complaining of his resistance but it is a settled principle of law that to invoke the jurisdiction of an executing court under Order XXI Rule 97 or 99, the person who is not party to the decree must have some independent right, title, interest or possession over the property in question. 10. Now coming to the facts of the case, as has rightly been held by both the courts below, the appellants/applicants have miserably failed to establish their independent right, title or possession. Though the appellants/applicants proved the Voter I.D. Card and electric energy bill but they failed to come forward with a case, as to how and in what manner and since when they have been in possession of the suit land and most importantly, they failed to establish that they have any independent right, title, interest or possession. 11. This Court, after minutely going through the materials in the record, is of the considered view that both the courts below have not committed any 5 S.A. No.12 of 2024 illegality in arriving at the conclusion that the appellant/applicant has failed to set up any independent right over the decretal premises. The first appellate court has not committed any illegality by not venturing to examine the validity of the judgment passed in eviction suit No.11 of 2009; because, as already indicated above, the said judgment has reached finality and it is a settled principle of law that the executing court cannot sit on appeal over the decree under execution. As the decree under execution has reached finality, it is not open for this court in this second appeal to examine the contention of the appellants/applicants as to whether the plaintiffs of the suit entered into the witness-box or not; as the decree under execution is not under challenge, in this second appeal. 12. Under such circumstances, this Court do not find any merit in this Second Appeal and no substantial question of law is involved in this appeal. 13. Accordingly, this Second Appeal, being without any merit, is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th of August, 2024 AFR/ Saroj 6 S.A. No.12 of 2024