Code of Civil Procedure, 1908:
Or. XXI, r. 101 – Scope of – Pursuant to a court decree possession of the property in question given to the decree-holders, after dispossessing the respondent – Respondent filed application before Executing Court complaining of his dispossession, claiming to be in adverse possession of the property – Executing Court rejected the application, holding that the respondent-applicant failed to prove his title on the property – In First Appeal, High Court set aside the order of Executing Court and directed to put back the respondent into possession of the property – Appeal to Supreme Court – Held: After the 1976 amendment in rule 101 of Order XXI, an applicant is required to prove not only his bonafide possession, but also his right, title and interest in the property, to be put back in possession – Therefore, there was no error in the order of Executing Court – High Court committed error in allowing the appeal.
Allowing the appeal, the Court
HELD: 1. The scope and ambit of Rule 101 of Order XXI of CPC prior to amendment of CPC was entirely different as compared to Rule 101 as was brought into statute after 1976 amendment. Earlier a person who was a bona fide claimant and who satisfied that he was in possession of the property on his own account or on account of some other person then the judgment-debtor could have been put in possession of the property on an application under Rules 100 and 101, whereas now after the amendment for putting back into possession an applicant has not only to prove that he is in bona fide possession, rather he has to prove his right, title or interest in the property. What was earlier to be adjudicated in a suit under unamended Rule 103 is now to be adjudicated in Rule 101 itself, thus, for being put in possession, an applicant has to prove his right, title or interest in the property and by simply proving that he was in possession prior to the date he was dispossessed by decree-holder, he is not entitled to be put back in possession. Thus, In view of the statutory scheme which is delineated by amended provisions of Rule 101, it cannot be said that by simply proving the fact that the respondent was in possession prior to he being dispossessed by decree-holder, he should be put back in possession. The respondent-applicant had to prove his right, title or interest in the property to be put back in possession. [Paras 14, 16 and 17] [1164-A-B, G; 1165-A-B]
2. All issues between the parties in application under Order XXI Rules 99, 100 and 101 need to be examined by Executing court and decided. The use of the words “all questions (including the questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 …………” has to be given meaning and full play. Prior to Amendment, 1976, under Rule 103, the aggrieved party could have brought a suit for determination of rights between them but by Amendment, 1976, Rule 103 has been amended. The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When respondent No.1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of respondent No.1 in right perspective and has clearly held that respondent No.1 failed to prove his title by adverse possession, hence application deserves to be rejected. [Paras 25, 26 and 27] [1173-C-H]
3. High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. The High Court, was not correct in holding that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession. [Paras 28, 29] [1174-A-C]
4. The suit filed by respondent No.1 seeking declaration of title to the property by adverse possession has been subsequently dismissed by decree on 16.03.2009 and no steps have been taken for restoration of the suit. Therefore, there is no error in the order passed by the Executing Court. The High Court committed error in allowing the appeal, directing respondent No.1 to be put back into possession. [Para 28] [1174-C] Shreenath and Another v. Rajesh and Others (1998) 4 SCC 543: [1998] 2 SCR 709; Silverline Forum Pvt. Ltd. v.. Rajiv Trust and Another (1998) 3 SCC 723 : [1998] 2 SCR 587; Ghasi Ram and Others v. Chait Ram Saini and Others (1998) SCC 200 : [1998] 3 SCR
863 ; Ashan Devi and Another v. Phulwasi Devi and Others (2003) 12 SCC 219 : [2003] 5 Suppl. SCR 820 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.