Amar Singh v. Om Parkash & Ors.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Nitin Kant, Advocate for Mr. G. S. Kaura, Advocate for the petitioner. Mr. Sanjiv Bansal, Advocate for respondent Nos.1 and 2. L. N. MITTAL, J (ORAL) Amar Singh defendant No.4 has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 06.04.2009 Annexure P-5 passed by learned Civil Judge (Junior Division), Ludhiana, thereby dismissing application Annexure P-4 moved by defendant No.4 under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure (in short, CPC) for rejecting the plaint instituted by respondent Nos.1 and 2 herein against proforma respondent Nos.3 to 5 and the petitioner herein. This case has a chequered history. Respondent No.1 purchased the suit land in Court auction made in execution petition filed against State of Punjab which had acquired the suit land belonging to defendant No.4-petitioner. The auction sale was set aside by the Executing Court, but was confirmed by this Court in FAO No.2770 of 1991, vide order dated 17.03.1997. Pursuant thereto, sale certificate dated 27.04.1998 was issued in favour of respondent No.1. Subsequently respondent No.1 sold half part of the suit property to C.R. No.4522 of 2009 2 respondent No.2 vide sale deed dated 14.05.1998. Respondent No.1 filed application under Order 21 Rule 95 CPC for delivery of possession of the suit land. However, the executing Court i.e learned Additional District Judge, Ludhiana vide order dated 20.10.1999 Annexure P-3 dismissed the said application as time barred, observing that remedy of respondent No.2 was by way of regular suit for possession of the suit land, relying on observation of Hon'ble Supreme Court in Pattam Khader Khan versus Pattam Sardar Khan and another, 1996(4) SLJ

2856. Thereafter respondent Nos.1 and 2 filed suit for possession of the suit land against proforma respondent Nos.3 to 5. Petitioner was impleaded as party defendant No.4 to the suit on his application. Defendant No.4 moved application Annexure P-4 under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint primarily on the ground that instant separate suit for possession is not maintainable in view of application moved by respondent No.1 under Order 21 Rule 95 CPC having already been dismissed by the executing Court. The said application was resisted by respondent Nos.1 and 2. Learned Trial Court vide impugned order Annexure P-5 has dismissed the application moved by defendant No.4. Feeling aggrieved, defendant No.4 has filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that according to judgment of Hon'ble Supreme Court in the case of K.R. Lakshminarayana Rao versus New Premier Chemical Industries, (2005) 9 Supreme Court Cases 354, instant separate suit is barred as remedy of respondent No.1 auction purchaser was by way C.R. No.4522 of 2009 3 of application under Order 21 Rule 95 CPC only. On the other hand, learned counsel for respondent Nos.1 and 2 relying on judgment of Hon'ble Supreme Court in the case of Balakrishnan versus Malaiyandi Konar, (2006) 3 Supreme Court Case 49 contended that remedy by moving application under Order 21 Rule 95 CPC is a quick remedy, but if the auction purchaser fails to avail of said quick remedy, the law relegates him to remedy of regular suit for possession based on title. Judgment in the case of Pattam Khader Khan (supra) was followed in the case of Balakrishnan (supra). Learned counsel for respondent Nos.1 and 2 also contended that defendant No.4 had challenged the acquisition of his land by filing CWP No.4952 of 1989, but the same was dismissed by Division Bench of this Court vide order dated 10.04.1989 Annexure R-1/1. The petitioner again challenged the acquisition by filing CWP No.18577 of 2007 which was also, however, dismissed by Division Bench of this Court vide order dated 06.01.2009 Annexure R-1/2. Special leave petition against the said order dated 06.01.2009 of this Court was dismissed by Hon'ble Supreme Court vide order dated 13.05.2009 Annexure R-1/3. Application for review moved by the petitioner against said order was dismissed by Supreme Court vide order dated

15.09.2009 Annexure R-1/4. It was accordingly contended that the petitioner is now left with no right, title or interest in the suit land and has, therefore, no locus standi to move application Annexure P-4 or to file this revision petition. I have carefully considered the rival contentions. In view of judgment of Hon'ble Supreme Court in the case of Pattam Khader Khan (supra) and Balakrishnan (supra), it has to be held that instant C.R. No.4522 of 2009 4 separate suit for possession of the suit land on the basis of title filed by respondent Nos.1 and 2 is maintainable because they failed to avail of the quick remedy provided under Order 21 Rule 95 CPC. Respondent No.1 of course tried to avail of the said remedy, but his application was dismissed being time barred and it amounts to non-availing of the said remedy. Consequently, it cannot be said that the instant suit is not maintainable. Accordingly, plea of defendant No.4-petitioner in application Annexure P-4 cannot be accepted. In addition to the aforesaid, petitioner is left with no right, title or interest in the suit land and, therefore, petitioner has no locus standi to file application Annexure P-4 or to file the instant revision petition. As noticed hereinabove, suit land belonging to the petitioner stood acquired by State of Punjab. Efforts made by petitioner to challenge the said acquisition have not borne any fruit. The petitioner has lost upto Hon'ble Apex Court. Consequently, now the petitioner is left with no right, title or interest in the suit land and, therefore, the petitioner has no locus standi to file application Annexure P-4 or to file the instant revision petition. In view of the aforesaid, I find no illegality in the impugned order Annexure P-5 passed by the trial Court. The revision petition is without any merit and is accordingly dismissed. ( L. N. MITTAL ) JUDGE

04.10.2010. A. Kaundal