BENCH AT JAIPUR v. Smt. Kishori Devi

Judgment

7. All 1 to 7 are residents of Ward No.16, Naya Devipura Balaji, Sikar (Raj.)

8. Smt. Shobha Wife of Shri Shyam Sunder, Resident of Village Sankhu, Via Degana, District Nagaur (Raj.) Presently Resident of VAPI (Gujarat).

9. Smt. Sarla Wife of Shri Bhagwan Sahay, Daughter of Late Girdhari Das, Resident of Aamli Ka Balaji, Reengus, District Sikar (Raj.) ----Decree Holder/ Defendants/Respondents

10. Jitendra Singh Son of Late Madan Singh,

11. Dheeraj Singh Son of Late Madan Singh, Both 10 & 11 are Residents of Near Forest Department Nursery, Chandpura Road (Rani Sati), Sikar (Raj.)

Smt. Meera Kanwar Wife of Shri Nandlal Singh, Daughter of Late Madan Singh, Resident of Village Budhwali, Via Padiyara, Post Bhojasar, District Churu (Raj.)

13. Kanta Kanwar Wife of Late Jagroop Singh, Daughter of Late Shri Madan Singh, Resident of Sumer Singh Ji Dera, Behind Old Roshni Ghar, Near Panwar Shahar Well, Bikaner.

14. Kiran Kanwar Wife of Rajendra Singh Parihar, Daughter of Late Madan Singh, Resident of A-49, Bhan Nagar, Queens Road, Vaishali Nagar, Jaipur (Raj.)

15. Laxmi Kanwar Wife of Shri Ravindra Bhati, Daughter of [2026:RJ-JP:5503] (2 of 14) [EXSA-1/2026] Late Madan Singh, Resident of Near City Dispensary No.2, Minakshi Road, Sikar (Raj.) ----Judgment Debtor/Defendants/Respondents For Appellant(s) : Mr. Amit Singh Shekhawat For Respondent(s) : Mr. M.M. Ranjan, Sr. Adv. with Mr. Lokesh Tiwari HON'BLE MR. JUSTICE MANEESH SHARMA Order 05/02/2026

1. The present execution second appeal has been filed by the appellant against the judgment and decree dated 16.01.2026 passed by the Additional District Judge No.2, Sikar in Civil Regular Appeal bearing C.I.S. No.11/2026, titled 'Nagar Parishad Sikar Vs. Kishori Devi', whereby the learned Appellate Court dismissed the Execution First Appeal and upheld the judgment dated 17.12.2025 passed by the Additional Civil Judge No.2, Sikar in Objection Application No.42/2020 titled 'Nagar Parishad Sikar Vs. Kishori Devi & Ors.', wherein the objection petition filed by the appellant under Order 21 Rule 97 of CPC has been rejected.

2. Brief facts giving rise to the present Execution Second Appeal are that the husband of the respondent no.1-Girdhari Das ('plaintiff-landlord') filed a suit for eviction and permanent injunction on 19.07.1984 against the father of respondent nos. 10 to 15-Madan Singh ('defendant-tenants') before the learned Additional Civil Judge No.2, Sikar. During the pendency of the suit, Girdhari Das and Madan Singh passed away; therefore, their legal representatives were taken on record.

3. After considering the facts and circumstances of the case, the learned Additional Civil Judge No.2, Sikar, vide judgment and [2026:RJ-JP:5503] (3 of 14) [EXSA-1/2026] decree dated 18.02.2008, partially decreed the suit, granting the benefit of Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, to the defendant-tenants.

4. Being aggrieved by the judgment dated 18.02.2008, both the parties i.e., the plaintiff-landlord as well as the defendant- tenants, preferred two separate appeals bearing no. 07/2008 and 09/2008, respectively, before the learned Additional District and Sessions Judge No.2, Sikar. Thereafter, the learned Appellate Court, vide judgment and decree dated 05.10.2018, dismissed the defendant-tenant's appeal and allowed the plaintiff-landlord's appeal; set aside the judgment dated 18.02.2008 passed by the learned Additional Civil Judge No.2, Sikar and directed the defendant-tenants to hand over the possession of the suit property to the plaintiff-landlord within a period of two (2) months and to pay the mesne profit @Rs. 100/- per month till the date of handing over the possession of the suit property to the plaintiff- landlord.

5. Assailing the judgment and decree dated 05.10.2018, the defendant-tenants preferred two separate second appeals bearing no. 608/2018 and 609/2018 before this Court. The second appeals are pending adjudication; however, vide order dated 19.09.2019, a Co-ordinate Bench of this Court allowed the stay applications, provided that the defendant-tenants will pay mesne profit @ Rs.1,00,000/- per month by the 15th of every succeeding month into the Bank Account of the plaintiff-landlord. If the defendant- tenants fail to deposit the amount of mesne profit for four consecutive months, the plaintiff-landlord shall be free to execute the decree without leave of the Court. [2026:RJ-JP:5503] (4 of 14) [EXSA-1/2026]

6. Being aggrieved by the order dated 19.09.2019, the defendant-tenants filed a Special Leave Petition (Civil) bearing no. 2141-2142 of 2020 before the Hon'ble Supreme Court. Vide order dated 03.02.2020, Hon'ble Supreme Court reduced the amount of mesne profit from Rs.1,00,000/- to Rs.50,000/- per month from October of 2018.

7. However, due to the defendant-tenants' non-compliance to pay mesne profits as directed by the Hon'ble Apex Court, the plaintiff-landlord filed an execution petition to execute the decree dated 05.10.2018 before the learned Executing Court.

8. In the execution petition, the present appellant has filed an objection petition under Order 21 Rule 97 of CPC alleging therein that the plaintiff-landlord has no title to the suit property and the suit property belongs to the appellants, and that the previous decrees obtained by the plaintiff-landlord are a nullity; therefore, the objection petition may be allowed and the execution proceedings may be dropped. During pendency of that execution petition, the plaintiff-landlord filed an application dated

23.09.2025 under Section 115 of the Indian Evidence Act, 1872 and section 11 read with section 151 of the CPC stating that the present appellant has no locus to file the application under Order 21 Rule 97 of the CPC as all the disputes including the dispute of title, raised by the appellant have previously been considered by various Courts and the same have been turned down and further confirmed by this Court, and have thus, attained finality.

9. The decree-holder has contested the application by filing a detailed reply on 28.10.2025, refuting the averments made therein, and has prayed for its dismissal. [2026:RJ-JP:5503] (5 of 14) [EXSA-1/2026]

10. After hearing arguments on the said application, the learned Executing Court has dismissed the objection petition filed by the present appellant while observing that in the previous rounds of litigation, including Civil Suit No.285/2006, all the pleas including the title of the suit property and possession thereof, raised by the present appellant have already been decided against the appellant, therefore, he cannot be allowed to agitate the same issues again and again. Accordingly, vide order dated 17.12.2025, the learned Executing Court accepted the application filed under Section 115 of the Indian Evidence Act, 1872, and Section 11 of the CPC, and dismissed the appellant's objection petition filed under Order 21, Rule 97, of the CPC.

11. Being aggrieved by the order dated 17.12.2025, the present appellant has preferred Execution First Appeal before the learned Additional District and Sessions Judge, No.2, Sikar, and after detailed examination of facts and circumstances, the learned Additional District and Sessions Judge, No.2, Sikar vide its impugned order dated 16.01.2026, dismissed the Execution First Appeal filed by the appellant.

12. Being aggrieved of the concurrent rejection of the objection petition under Order 21 Rule 97 of CPC, the present execution second appeal has been filed by the appellant.

13. Learned counsel for the appellant submits that the learned Trial Court seriously erred in dismissing the objection petition filed by the appellant, as the learned court below has summarily dismissed the objection petition on the grounds of limitation and estoppel in view of the doctrine of res judicata, without framing issues and recording any evidence, and while doing so has wholly [2026:RJ-JP:5503] (6 of 14) [EXSA-1/2026] ignored the provisions of Order 21 Rule 97 of CPC, which states that such proceedings shall be tried like a civil suit. He further submits that the doctrine of res judicata is not attracted in the present matter. He further submits that the respondent-landlord (the decree holder) does not have any title over the suit property, and that the Murti Mandir Trust are lawful owners and in possession of the suit property, and hence the plaintiff-landlord cannot be allowed to obtain possession of the suit property from the defendant-tenant (judgment debtor).

14. He further submits that the respondent-landlord has obtained the previous decrees by playing fraud upon the learned Courts below; he accordingly prays that the present execution second appeal may kindly be allowed and the execution petition may kindly be rejected.

15. Per contra, the learned senior counsel for the respondents vehemently opposes the submissions advanced by learned counsel for the appellants and contends that the objection petition filed by the appellant under Order 21 Rule 97 of CPC is per se, misconceived as the present appellant neither has any title over the suit property, nor is the appellant in possession of the suit property; rather, under the garb of the objection petition he is trying to protect the tenant against whom, concurrent decrees have been passed by both the learned Courts below, and who failed to comply with the directions to pay mesne profit @ Rs.50,000/- per month, issued by the Hon'ble Supreme Court vide order dated 03.02.2020 in Civil Appeal No.1033-1034/2020.

16. He further submits that in a previous litigation bearing S.B. Civil Second Appeal No.688/2006 filed by the Municipal Council, [2026:RJ-JP:5503] (7 of 14) [EXSA-1/2026] Sikar, all the identical pleas so raised by the appellant have been considered and dismissed by a Co-ordinate Bench of this Court vide order dated 02.01.2007.

17. He also submits that in a writ petition bearing S.B.C.W.P. No.4406/2012 assailing the order dated 28.12.2011 passed by the learned Board of Revenue, Ajmer, the petitioner had raised similar pleas, and during the course of hearing of the said writ petition, learned counsel for the appellant therein agreed to the reasonings of the learned Board of Revenue, Ajmer, and accordingly, withdrew the said writ petition.

18. He also submits that the present appellant has no locus to file an objection petition under Order 21 Rule 97 CPC and their objections have previously been considered by various courts, and all the litigations preferred by the appellant have been rejected. Therefore, it reflects that the appellant's attempt is only to protect the defendant-tenant. Accordingly, he prays for dismissal of the present execution second appeal.

19. Heard the submissions made at bar and perused the material available on record.

20. Before moving on to the adjudication of the present execution second appeal, it is pertinent to mention here that various rounds of litigation have occurred between the appellant herein and the Mandir Murti Shree Balaji, Devipura, emerging from the suit no. 69/93 filed by the Mandir Trust for declaration and permanent injunction against the appellant, wherein the Mandir Trust has pleaded that the Trust has had the ownership and possession over the land since 1913; however, the appellant (Nagar Parishad, Sikar) has wrongly and illegally alloted some part [2026:RJ-JP:5503] (8 of 14) [EXSA-1/2026] of the disputed land to Gayatri Parivar Trust free of cost vide order dated 05.10.1983. Learned Civil Judge, Sikar, vide judgment and decree dated 14.03.2000, declared the ownership and possession of the Mandir Trust over the disputed land; held that the appellant herein has no right to transfer part of the disputed land to anyone, and the order dated 05.10.1983 passed by the appellant has been declared null and void. The operative portion of the judgment and decree dated 14.03.2000 is reproduced as under: ^^ okn cgd oknh fo:) izfroknhx.k e; gtkZ] [kpkZ eqdnek fMdzh fd;k tkdj ;g ikSf"kr fd;k tkrk gS fd fooknkLin lEink ftls vthZ nkok ds iSjk&2 esa of.kZr fd;k x;k gS] ewfrZ eafnj Jhckykth okds nsohiqjk] lhdj ds dCts ,oa fefYd;r dh gS rFkk izfroknh la[;k&2 dks fooknkLin Hkwfe dks fdlh vU; dks gLrkarfjr djus dk vf/kdkj izkIr ugha gS blfy, izfroknh la[;k&1 }kjk tkjh vkns'k fnukad 5-10-83 dks voS/k ,oa 'kwU; gSA lkFk gh izfroknh la[;k&1 dks tfj;s LFkk;h fu"ks/kkKk izfrcaf/kr fd;k tkrk gS fd og fooknkLin Hkwfe ls oknh dks csn[ky djus] mi;ksx] miHkksx esa enk[kyr ,oa etkger djus] fdlh vU; dks gLrkarfjr djus ls lnSo ds fy;s ckt jgsaA fu.kZ;uqlkj fMdzh ipkZ cuk;k tkosA**

21. Aggrieved of which, the appellant herein has preferred a regular appeal bearing no. 14/2002, which was dismissed vide judgment and decree dated 24.04.2003, passed by the learned Additional District and Sessions Judge No.2, Sikar. Thereafter, the appellant has preferred a second appeal bearing no. 688/2006, which was also dismissed vide order dated 02.01.2007 passed by this Court as under: I have heard learned counsel for the appellant and have " perused the impugned judgment as well as the judgment of he trial court The learned court below has given cogent and valid reasons for disallowing the application filed under Section 5 of the Limitation Act for condonation of delay in filing the appeal. It has found the explanation given for the delay as not satisfactory and sufficient to condone the delay. I find no error or infirmity in the order of the learned court below. It is not disputed that the appeal was filed beyond the prescribed period of limitation. So, the learned court below has rightly dismissed the appeal as time barred which judgment and decree does not call for any interference in this second appeal [2026:RJ-JP:5503] (9 of 14) [EXSA-1/2026] as there is no substantial question of law which arises in this appeal for consideration of this court. Consequently, this second appeal being devoid of merit and substance deserves to be and is hereby dismissed."

22. That, even in another round of litigation, wherein the LRs of the landlord had filed a revenue suit against the present appellants before the learned SDO, Sikar, bearing No.285/2006, the appellant herein had admitted the fact that the suit property is in ownership and possession of the Murti Mandir Balaji, Devipura, the said admission in the reply to the revenue suit has been reproduced as under: ^^4.....fBdkuk lhdj }kjk lEor 1913 esa <kbZ ch?kk [kkapk Hkwfe ewfrZ eafnj ckykth nsohiqjk dks lsok iqtk gsrq nh xbZ gS tks ewfrZ eafnj nsohiqjk ckykth nsohiqjk ds dCts vf/kdkj o LokfeRo dh gSA fxj/kkjhnkl mDr eafnj dk dsoy iqtkjh gSA

5.....oknxzLr Hkwfe [k-ua- 8] 9] 10] 12 ru nsohiqjk rglhy lhdj ewfrZ eafnj ckykth nsohiqjk ds dCts vf/kdkj o LokfeRo dk gSA.......** Accordingly, the learned SDO vide order dated 24.04.2007 had directed/restrained the present appellants as under: ^^ mDr foospu ds vk/kkj ij okn oknhx.k Lohdkj fd;k tkrk gSA vkjkth eqruktk yS.M jsoU;w ,DV] 1956 ,oa fVusUlh ,DV] 1955 ds izHkko esa vkus ls iwoZ ls gh vkcknh Hkwfe ds rkSj ij dke esa yh tk jgh gSA eafnj ds iz;kstukFkZ iz;qDr orZeku [kljk la[;k 12 jdck 0-14 gS] dks NksM+dj oknhx.k ;fn Hkwfe dks vkcknh ls brj vU; iz;ksx esa ysos rks uxj ifj"kn dks fu;ekuqlkj laifjorZu 'kqYd olwyus dk gd gSA vr% oknhx.k ds gd esa [kljk la[;k&8 dks xSj eqefdu dkj[kkuk [kljk la[;k 10 jdck 0-14 fcLok xSj eqefdu vkcknh o [kljk la[;k 11 xSj eqefdu pkg o [kljk la[;k&9 xSj eqefdu nqdkukr o [kljk la[;k 12 jdck 0-14 gS] xSj eqefdu eafnj nsohiqjk ckykth ntZ fd;s tkus o uD'kk esa rnuqlkj rjehu fd;s tkus dh vkKk nh tkrh gSA**

23. Thereafter, being aggrieved by the order dated 24.04.2007, the appellants herein preferred an appeal bearing No.94/2007 before the learned Revenue Appellate Authority, Sikar, wherein vide order dated 02.01.2008, the matter was remanded to the learned SDO, Sikar. Subsequently, the LRs of the landlord preferred an appeal before the learned Board of Revenue, Ajmer, [2026:RJ-JP:5503] (10 of 14) [EXSA-1/2026] bearing No. Appeal/TA/3051/2008/Sikar, wherein the learned Board of Revenue vide order dated 28.12.2011 set aside the order dated 02.01.2008 passed by the learned Revenue Appellate Authority, and restored the order dated 24.04.2007, passed by the learned SDO, Sikar.

24. Aggrieved by which, the present appellant preferred a writ petition bearing S.B.C.W.P. No.4406/2012, wherein the writ petition vide order dated 03.07.2012 was dismissed as withdrawn, meaning thereby that the order dated 28.12.2011, passed by the learned Board of Revenue, has attained finality.

25. Thus, from a perusal of the record of the case, it is undisputed that the challenge to the order of the learned Board of Revenue dated 28.12.2011 was voluntarily abandoned by the appellant when S.B.C.W.P. No. 4406/2012 was dismissed as withdrawn vide order dated 03.07.2012. Thus, the findings recorded against the appellant by the learned SDO in Revenue Suit No.285/2006 have attained finality. The appellant, having withdrawn the writ petition preferred against the order dated

28.12.2011 passed by the learned Board of Revenue, is now precluded by the doctrine of estoppel from re-agitating these settled issues or creating any obstruction in the execution of the decree.

26. From the record of the case, it is also evident that in the first round of litigation arising out of Suit No.69/1993, the appellant herein has preferred Regular First Appeal No.14/2002 that came to be rejected. Being aggrieved of the same, the present appellant has preferred S.B. Civil Second Appeal No.688/2026 and after detailed examination of facts, the Co-ordinate Bench of this Court [2026:RJ-JP:5503] (11 of 14) [EXSA-1/2026] vide order dated 02.01.2007, dismissed the said second appeal filed by the appellant.

27. It is also evident that the present execution second appeal has been filed in pursuance to the judgment and decree dated

05.10.2018 passed by the Appellate Court in Appeal Nos.7/2018 and 09/2008. As in the second appeal preferred against the said judgment, the tenant has failed to comply with the direction to pay mesne profit in terms of order passed by the Hon'ble Supreme Court in pending appeal Nos.608/2018 and 609/2018, the series of events clearly reflects that the appellant herein is not in possession and the decree is sought to be executed against the legal representatives of tenant-Madan Singh.

28. It would be apt to refer to the provisions of Order 21 Rule 97 of CPC, which have been reproduced as under: "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.]"

29. Hence, from the aforesaid provision, it is clear that the statutory remedy under Order 21 Rule 97 of CPC is available only to a person who is in possession of the property and is resisting dispossession. Since the appellant has already conceded in the revenue proceedings that the Murti Mandir Trust is in lawful ownership and possession of the suit property, no occasion arises for them to offer resistance or obstruction within the meaning of Order 21 Rule 97 of CPC. Consequently, the learned Trial Court [2026:RJ-JP:5503] (12 of 14) [EXSA-1/2026] was perfectly justified in holding that the appellant has no locus standi to maintain the objection to the execution proceedings.

30. Lastly, as far as the submission advanced by the learned counsel for the appellant qua the learned Court below erring in rejecting the objection petition summarily, it is pertinent to note that all the questions qua the appellant's title and possession over the suit property have already been crystallized in the previous rounds of litigation by various courts, wherein it has time and again been held that the present appellants have no ownership or possession over the suit property, thus, the learned Court below has rightly rejected the objection petition filed by the appellant, holding that the appellant has no locus standi to seek relief under Order 21 Rule 97 of CPC.

31. Even for the sake of argument, if the submissions so advanced by the learned appellant are considered, all the facts narrated herein above reflect that all similar issues raised by the appellant have been dismissed, rejected and have attained finality thereof.

32. That even otherwise, all the arguments so raised by learned counsel for the plaintiff/appellants are related to questions of fact and nowhere relates to substantial questions of law. It is a trite law that this Court while hearing second appeal under Section 100 of the Code of Civil Procedure, 1908 should not entertain the questions of fact and this Court should hear only the substantial questions of law and confine the course of hearing only to the substantial questions of law.

33. Since in the present case the appellant herein has failed to prove a semblance of a title or independent possession over the [2026:RJ-JP:5503] (13 of 14) [EXSA-1/2026] suit property, which is a precondition for initiating an enquiry under Order 21 Rule 97, and if such an enquiry is ordered in a routine manner on such flimsy grounds, more particularly when the appellant has already lost two title suits and failed to prove title or possession over the suit property, the decree holder can never reap the fruits of the decree, and will be stuck in a limbo.

34. The questions of law proposed in the present second appeal falls within the realm of questions of fact and does not fall within the purview of the substantial questions of law.

35. In Nazir Mohamed vs J.Kamala And Ors.1, the Hon'ble Apex Court held that the condition precedent for entertaining and deciding a second appeal is the existence of a substantial question of law.

36. Further, in Kondiba Dagadu Kadam vs. Savitribai Sopan Gujjar2, the Hon'ble Apex Court held that after the amendment, a second appeal under Section 100 of the CPC can be filed only if a substantial question of law is involved in the case, and it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last court of fact, being the first appellate court. As such, second appeal cannot be decided on equitable grounds, rather the conditions prescribed in section 100 of CPC must be strictly complied with to admit and maintain a second appeal.

37. Therefore, looking to the aforesaid facts and circumstances of the case, this court is of the considered opinion that the findings arrived at by the learned Executing Court as well as the First Appellate Court are based on a proper appreciation of oral 1 2 AIR 2020 SC (4321) (1999) (3) SCC 722 [2026:RJ-JP:5503] (14 of 14) [EXSA-1/2026] and documentary evidence. Hence, the concurrent findings arrived at by the learned Trial Court as well as the First Appellate Court are found immaculate and infallible in the eye of law.

38. Thus, in view of the discussions made herein above, no question of law much less any substantial question of law is involved in the present execution second appeal warranting interference by this court in exercise of its jurisdiction under section 100 of CPC. On the contrary, all the questions so raised have been duly decided against the appellant in previous rounds of litigation by various courts and have attained finality.

39. Accordingly, the present execution second appeal fails and is hereby dismissed.

40. All other pending application(s), if any, stand disposed of. SOURAV /96 (MANEESH SHARMA),J