Court No. - 3
Case :- MISC. SINGLE No. - 3185 of 2008
Petitioner :- Noor Hasan
Respondent :- Ummatul Nishan And Ors.
Petitioner Counsel :- R.K.Sharma
Respondent Counsel :- Rakesh Kumar Srivastava
Hon'ble Shri Narayan Shukla,J.
Heard Mr.Ratan Kant Sharma, learned counsel for the petitioner
and Mr. Rakesh Kumar Srivastava, learned counsel for the
opposite party no.2.
The petitioner has challenged the order dated 28.7.2007 passed by
the Civil Judge, (Junior Division), Tanda, Ambedkarnagar in
Misc. Case No. 18/2007, whereby the petitioner’s application
3Ka moved under Order 21 Rule 97 Code of Civil Procedure has
been rejected as also the order dated 16.10.2007 passed by the
District Judge, Ambedkarnagar in Civil Revision No. 64 of 2007
rejecting the revision against the order passed by the court below.
Briefly the facts of the case are that the petitioner’s maternal
grand mother Smt. Ummatul Nishan widow of Faizullah Khan
entered into an agreement with Julekha Khatoon (opposite party
no.2) on 30.12.1975 to sell out the house. When Smt. Ummatul
Nishan did not perform the contract, opposite party no.2 filed a
Regular Suit No. 305 of 1978 for specific performance of contract
in the court of the Munsif, Akabarpur Faizabad. The said suit was
decreed by means of judgment and decree dated 12.2.1980. Smt.
Ummatul Nishan challenged the said judgment and decree by
way of Civil Appeal No. 151 of 1980 before the District Judge,
Faizabad. Learned Vth Additional District Judge, Faizabad
dismissed the same on 30th August, 1983, against which Second
Appeal No. 877 of 1983 was preferred by Smt. Ummatul Nishan
before this court which too was dismissed on 21st March, 1997.
In the meantime, opposite party no.2 filed Execution Case No. 9
of 1984 for execution of decree in which the petitioner appearing
on behalf of Smt.Ummatul Nishan in the capacity of her
Mukhatar filed an objection under section 47 CPC claiming his
title on the basis of notarized Will dated 21.8.1965 alleged to
have been executed by his maternal grand father in his favour,
which was rejected by means of order dated 9.4.2007, being
aggrieved with which he preferred Civil Revision No. 65 of 2007,
which too was dismissed by the District Judge, Ambedkarnagar
on 16.2.2007.
The petitioner has also filed Regular Suit No. 402 of 2006 for
permanent injunction regarding the same house claiming his right
on the basis of same Will, which is still pending consideration
before the court of Civil Jude (Senior Division), Ambedkarnagar.
He also moved an application under Order 21 Rule 97 C.P.C. in
Execution Case No. 9 of 1984 which was registered as Misc Case
No. 18 of 2007 to adjudicate upon his right on the same very
basis, but the executing court rejected the same by means of order
dated 28.7.2007 and the revision preferred against the said order
has also dismissed by means of order dated 16.10.2007, which are
impugned in the present writ petition.
It is not in dispute that the petitioner being a major was doing
Pairvi of the case on behalf of Smt. Ummatual Nishan but he
never disclosed the fact of Will executed in his favour and never
claimed his right on the basis of said Will, for which he takes
ground that he had no knowledge about the Will before 2006 and
he came to know the said Will only when he got it translated in
Hindi on 21st August, 1965, whereby the property has been
bequeathed by his maternal grand father to him. The petitioner
further submits that Smt. Ummatul Nishan had been given the
right only to enjoy the house and other property during her life
time without having right to alienate the same but she violated the
terms of agreement to sell and sold out the house, therefore, the
agreement to sell entered into by her is absolutely without
jurisdiction and has no force in the eye of law.
On the other hand, the opposite party no.2 submitted that the
petitioner contested the suit for specific performance of contract
on behalf of Smt. Ummutal Nishan as her Mukhtar but he never
disclosed the fact of Will but when could not succeed in the suit,
he changed his stand and took a different ground to contest the
suit. During the pendency of suit he was major and sound mind.
Now at this stage the plea raised by him is not sustainable.
Learned counsel for the petitioner invited the attention of this
Court towards Order 21 Rule 101 CPC. and submitted that the
petitioner’s right can be adjudicated upon in accordance with the
provisions as provided in the Code of Civil Procedure for trial on
his application moved under Order 21 Rule 97 CPC. He further
submits that Order 21 Rule 101 speaks that all questions
(including questions relating to right, title or interest in the
property) arising between the parties to a proceeding on an
application under order 21 rule 97 or rule 99 or their
representative, 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 question.
Provisions of Order 21 Rule 97, which are relevant, are
reproduced hereinunder:-
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 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."
In support of his submissions he cited the following decisions
rendered in the cases of (1997) 3 Supreme Court Cases 694
Brahmadeo Chaudhary Vs. Rishikesh Prasad Jaiswal and
another and Shreenath and another Vs. Rajesh and others,
Allahabad Rent Cases 1998 (2) 683.
So far as the provisions as well as the law laid down by the
Hon’ble Supreme Court quoted hereinabove are not disputed but
once the petitioner who was contesting the case on behalf of Smt.
Ammutul Nishan being major and sound mind failed to claim his
right on the basis of Will and defended the suit only in the
capacity of Mukhtar of Smt. Ummatual Nishan, I am of the view
that at this stage, it is not proper to permit him to take a plea of
Will and claim his right over the property in question on the basis
of Will. Therefore, keeping in view the facts and circumstances
of the case, I do not find error in the orders impugned.
In the result, the writ petition is dismissed.
Order Date :- 22.7.2010
GSY