P.K. Lohra, J.
1. Appellants/objectors, appalled by the judgment and order dated 28th May 2008, rendered in Civil Misc. Case No.77-B of 1996 by the learned District Judge, Jodhpur, have laid this appeal under Order21, Rule101read with Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC').
2. By the judgment and order impugned, the learned District Judge, Jodhpur (for short, 'learned trial Court') has rejected their objections under Order21, Rule99read with Section 151 CPC and ordered for restoration of possession of the first respondent decree-holder on Plots No. E-215, F-270 and F-271 allotted by second respondent RIICO in Industrial Area, II Phase, Basni, Jodhpur.
3. The instant appeal has a checkered history and therefore in order to make an effectual adjudication of the lis involved, it has become imperative for the Court to recapitulate the entire factual gamut in brevity.
Narration of Facts:
The bare necessary facts, in chronological order, are as follows:
The first respondent decree-holder firm, at the threshold, applied for industrial plot on 15th February 1977 by filing an application before second respondent RIICO - the judgment-debtor, craving allotment of land measuring 8000 sq.mtrs. After scrutinising the application of the decree-holder, the second respondent allotted industrial Plots No. E-231, F-232 and F-233, measuring 8000 sq.mtrs. to the decree-holder in Industrial Area, II Phase, Basni, Jodhpur.
Pursuant to the allotment, lease-deed for the aforesaid industrial plots was registered on 20th September 1978. Subsequently, the second respondent judgment-debtor rescinded part of the allotment of plots made in favour of decree-holder and cancelled allotment of land measuring 4000 sq.mtrs. This action of the second respondent RIICO obviously became a cause of acrimony between the rival parties, and thereupon respondent decree-holder approached this Court by preferring Civil Writ Petition No. 1043 of 1981. The writ petition came up for consideration before the learned Single Judge of this Court on 06.01.1994 and after hearing submissions of the contesting parties, the Court was pleased to dispose of the writ petition with under-mentioned directions:
".Therefore, it is in fitness of things that the matter is referred back to the respondents to refer the matter to the arbitration because the petitioner has seriously disputed that the Annexure 16 issued by them reducing the area of the petitioner from 9,250 sq.mtrs to 4,000 sq.mtrs. Whether reduction of area is right or wrong. Thus, it is directed that the respondent No.1 RIICO, Jodhpur shall refer the matter to the Collector for arbitration in terms of the clause 3(h) of the lease-deed. In these circumstances, it is directed that the respondents shall refer the matter to Collector by way of arbitration and on the claim filed by the petitioner within one month from today and thereafter the respondent shall refer the matter within another period of one month and it is expected that Collector shall dispose of the matter as far as possible within three months thereafter. So far 4000 sq.mtrs of land which is allotted to the petitioner, petitioner may continue in possession of that land and other remaining land shall not be alienated till the matter is decided by the Collector."
4. In adherence of the directions of this Court quoted herein above, which is on record as Ex.D-2/A, matter was referred for arbitration to the sole arbitrator - District Collector, Jodhpur, and it was registered as Case No.05/1994. The arbitrator pronounced its award on 30th September 1994 favouring the cause of decree-holder and declared it entitled for the remaining plot measuring 4000 sq.mtrs with a further direction to the second respondent RIICO to handover the possession of the aforesaid land.
5. After passing of the arbitral award, the first respondent decreeholder applied before the learned District Judge, Jodhpur for making award rule of the Court and the said petition of the decree-holder was registered as Case No.82A of 1995. The learned District Judge declared the arbitral award in to to as rule of Court by order dated 16th January 1996 and as a consequence thereof passed a decree to this effect.
6. In order to reap the fruits of the decree dated 16th January 1996, the decree-holder filed execution petition, before the learned District Judge, which was registered as Execution Case No.29 of 1996. The executing Court issued warrant of possession, which finally yielded the desired result with the police aid and possession of the land is restored to the decree-holder on 26th July 1996. On being satisfied with the positive assertion of the decree-holder, the learned executing Court recorded its satisfaction about the execution of decree on 6th September, 1996 to the extent of delivery of possession and issued order for attachment of the property of judgment-debtor for recovery of the due amount in terms of decree.
7. The appellant-objectors, with a view to thwart execution of decree, submitted objections before the learned trial Court under Order21, Rule99CPC. In the objection petition, the appellants have asserted that they are still in possession of the land in dispute and at no point of time they were divested of their possession. The entire process of taking over of possession by the decree-holder is categorized as hoax and a paper proceeding and an outcome of connivance between decree-holder and some of the officers of the Court. In order to justify their possession on the land, which was subject matter of execution, the appellants have pleaded in the objections that the land is part of Khasra No.723/29B-4 Vyasji-ki-Baori, Jodhpur measuring 21 bighas and 4 biswas, which was recorded in the revenue records in the name of their ancestor Mode Khan as Khatedar. The new numbers of the Khasras are mentioned as Khasras No.953 to 969. It is also averred in the objections that as per revenue records land measuring 4 bighas and 12 biswas, out of total land of 21 bighas 4 biswas, was allotted to second respondent for industrial purposes by the State Government and a land measuring 6 bighas and 5 biswas is taken over by the second respondent clandestinely from the appellants without following due process of law. A fact is also pleaded by the appellants that this action of second respondent RIICO is under challenge before the revenue Court at their behest. Interestingly, it is also pleaded that remaining 15 bighas of land is still within the possession of the appellants. While adverting to the arbitral award and the decree, appellants have incorporated in their objections that the alleged lease-deed executed in favour of decree-holder pertains to industrial plots No.E-231, F-232 and F-233, which is also evident from the lease-deed and the endeavour made by the decreeholder is to take possession of the other industrial plots, viz., Plots No.E-215, F-270 and F-271. Emphasizing that aforesaid plots are not part of the decree for which execution is laid, appellants pleaded that these plots are not part of the land, which is allotted to RIICO by the State Government, i.e. Plots No.317 to 328. The appellant-objectors have further reiterated that the so called possession is a paper possession and in fact actual possession was not taken over by the decree-holder. Pleading specifically in the objections that the appellants came to know about taking over of possession of the land in question on 30th of October 1996, immediately the objections have been submitted. It is prayed in the objections that the entire proceedings may be declared null and void and appellants may be restored to possession.
8. The objection petition submitted by the appellants was replied by respondent decree-holder. In the return, the allotment of industrial plots by RIICO, bearing Plots No.E-231, F-232 and F-233, on 4th of June 1997 is asserted. It is also clarified in the reply that subsequently RIICO vide letter dated 27th of December 2007 informed the decree-holder about new plot numbers, i.e. E-215, F-270 and F- 271, and accordingly for the said industrial plots lease-deed is executed. The decree-holder has also asserted that it had obtained possession of the industrial plots in execution of a decree on 23rd August 1996 but on 25th August 1996 itself the appellant-objectors have again taken over possession on the industrial plots. Question of limitation about submission of objections is also incorporated in the reply of the decree-holder. Apart from all the positive assertions about no right, title or interest of the appellants on the industrial plots, it is specifically pleaded that the land in question was earlier recorded in revenue record as Gochar land and the District Collector in July 1974 set apart the same for industrial purposes and allotted it to RIICO and since then it is recorded in the revenue records in the name of RIICO. The appellants were also castigated for their conduct in not approaching Court with clean hands and the entire proceedings undertaken by Sale Amin for delivery of possession to the decreeholder is also stoutly defended but for the act of the appellants in taking over possession forcibly on 15th August, 1996.
9. Respondent judgment-debtor, RIICO, also submitted its reply specifically denying Khatedari rights of Mode Khan. Respondent RIICO has specifically averred in the return that Khasra No.723 initially recorded as Gochar land and after setting apart the same for industrial purposes, was allotted to RIICO in the year 1974 and possession is also handedover. Reiterating the stand of decree-holder that Khasra No.723 was subsequently entered in the revenue record as Khasra No.959 measuring 9 bighas and 10 biswas, is part of the land which was set apart for industrial purposes. A revenue suit, filed by Mode Khan, seeking declaration that he is Khatedar tenant of the land, its dismissal by Assistant Collector, Jodhpur, is also highlighted in the return. The fact that industrial Plots No.E-231, F-232 and F-233, allotted to first respondent decree-holder, which were subsequently renumbered as Plots No.E-215, F-270 and F-271 is also mentioned in the reply. Raising a specific plea, that appellants at the moment are not in possession of the land in question, prayer was made for rejection of the objections preferred by the appellants.
10. On behalf of appellants, after submission of reply by decreeholder as well as judgment-debtor, rejoinder is submitted reiterating their stand in the objections.
11. At this stage, it is pertinent to refer to some of the facts concerning the pleadings of the parties. It transpires from the record that the appellants made endeavour before the Court below to make certain amendments second time in the objections and submitted an application under Order6, Rule17read with Section 151 CPC. After hearing the rival submissions, the application is rejected with costs ofRs. 1,000/-.
12. Feeling disgruntled with the order rejecting application under Order6, Rule17read with Section 151 CPC dated 10th October 2007, appellants approached this Court by way of preferring S.B. Civil Writ Petition No.7758 of 2007. The matter came up before the Court on 19th December 2007 and after hearing counsel for the appellants and the learned counsel for decree-holder, this Court declined to interfere with the impugned order by noticing that there is no illegality. During the course of arguments, learned counsel for the decree-holder vociferously highlighted the dilatory tactics adopted by the appellants by way of laying applications after applications. While appreciating the submissions of the learned counsel for the respondent decree-holder and taking cognizance of the fact that matter is being prolonged on one pretext or other, Court made under-mentioned observations in the penultimate paragraph of the judgment:
In view of the facts and circumstances of the case, while this court finds no illegality in the impugned order of the learned District Judge Ex.12 dated 10.10.2007, this writ petition is disposed of with a request to the learned District Judge to decide the Civil Misc. Application No.77B/96 expeditiously deciding the objections filed by the present petitioners with respect to land in question, preferably within a period of three months from today. It is needless to add that once the objections of the present petitioners/objectors are decided in accordance with law, the consequential relief in accordance with Order21, Rule99to 101 CPC for putting the proper party in possession shall follow and appropriate directions in this regard shall also be issued by the learned District Judge.
13. After entertaining the objections, the learned District Judge tried the objections as a suit and consequently in terms of pleadings of the rival parties settled seven issues for determination, which are as follows:
14. Substantiating their objections, appellant-objectors examined six witnesses and on behalf of respondent decree-holder its proprietor Shanti Prakash tendered his affidavit on which he was cross-examined. No evidence as such is tendered by the judgment-debtor RIICO despite availing many opportunities.
15. The learned trial Court by the impugned order partially decided Issue No.1 in favour of RIICO. Issue No.2 was partly decided in favour of appellant-objectors, whereas Issue No.3 is partially decided in favour of respondent decree-holder. The crucial issue, i.e. Issue No.4, on evaluation of available material, is decided in favour of decree holder by the learned Court below concluding that in terms of lease deed land measuring 9,250 sq.mtrs is allotted by RIICO to the respondent decree-holder. Issue No.5, which was essentially settled on the strength of pleadings of appellants that Sale Amin has not undertaken any proceedings for delivery of possession to the respondent decree-holder and entire proceeding was a farce, is decided by the learned trial Court against the appellants. The learned Court below has completely repudiated the theory of the appellants that Sale Amin has not taken requisite proceedings for delivery of possession to the decree-holder and there is no semblance of proof that the entire proceedings are farce and spurious. While arriving at this finding, the learned Court below has made sincere endeavour to evaluate the evidence tendered by appellants and has found that evidence is bereft of relevant materials to castigate Sale Amin for his alleged farce proceedings or delivery of paper possession to the decree-holder. While adverting to issue No.6 relating to belated presentation of objections, the learned Court below, on meaningful consideration of the evidence and other materials on record, has recorded a definite finding as per the version of AW1 that proceedings for delivery of possession to the decree-holder was within the knowledge of appellants as early as on 25th of August 1996. Therefore, reckoning the period of limitation from that date, learned trial Court has found that the objections having not been submitted within one month from forcible dispossession of appellants from the land in question, objections are barred by limitation, and consequently decided Issue No.6 against the appellants. Finally, while adjudicating Issue No.7 learned Court below has taken cognizance of the verdict of Hon'ble Apex Court and recorded a definite finding that as per the mandate of the Hon'ble Apex Court it has made endeavour to adjudicate the objections on merits by trying it as a suit. Relying on the finding on Issue No.6 that objections are barred by limitation, the objections of the appellants were rejected and appellants were directed that the possession of the industrial plots be restored back to the respondent decree-holder.
Consideration of Application Under Order41, Rule27CPC Filed By Respondent Decree-Holder:
At this stage, it is also imperative for this Court to consider IA No.1943 of 2014 laid by the respondent decree-holder under Order41, Rule27CPC for taking additional evidence on record. As the coordinate Bench by its order dated 28th of May 2014 has posted it for disposal at the time of final hearing of the appeal, the parties have also joined the issue on the said application and addressed the arguments.
16. In the application aforesaid, the respondent decree-holder has pleaded, that before the learned trial Court evidence of second respondent judgment-debtor was closed due to non-production of any evidence despite availing many opportunities, therefore, it is making endeavour to place on record certain documents for conclusively settling the lis between rival parties. It is also averred in the application that the documents, which are sought to be brought on record as additional documents, are in the nature of public documents. Respondent decree-holder has set out a specific ground in the application that these documents are touching the root of the title of RIICO itself and therefore production of these documents would help this Court to arrive at a just decision for rendering authoritative judgment. It is also pleaded in the application that the documents sought to be placed on record as additional documents shall not prejudice the cause of the appellants looking to the nature of the documents which are public documents. Along with the application, the respondent decree-holder has annexed Annex.A/1, certified copy obtained by it under the RTI Act, which is the order of setting part dated 26th July, 1974 passed by the District Collector, Jodhpur. Document Annex.A/2 is the certified copy of the lease-deed executed in favour of RIICO by the State on 10th July, 1979. It is also averred in the application that while passing the impugned order, the learned Court below has not relied upon the contents of Execution File No.29 of 1996, more particularly, when the objections are purportedly laid under Order21, Rule99CPC in the said execution case. An endeavour is made to refer to the record of Execution Case No.29/1996, which is already requisitioned by the Court for deciding this appeal. In order to wriggle out from the embargo set out under sub-rule (i) (aa) of Rule27Order41CPC, the respondent decree-holder has once again reiterated that since the learned trial Court has closed the evidence of RIICO, these documents could not be brought on record by it despite due diligence and therefore at the appellate stage these crucial documents are sought to be produced as additional evidence which may be allowed to be taken on record for doing substantial justice in the matter.
17. The application is seriously opposed by the appellants and a written reply is submitted. In totality, while joining the issue with the respondent decree-holder on the aforesaid I.A. No.1943 of 2014, the appellants have dilated on the merits of the case. The authenticity of the documents is also seriously disputed in the reply. As per appellants, there was a serious lapse on the part of RIICO as well as respondent decree-holder in not producing these documents before the learned Court below and therefore it is not desirable to permit decree-holder to adduce additional evidence at the appellate stage. Imputing motive against respondent decree-holder, the appellants have alleged that the application is malafide. Joining issue with the respondent decree-holder for belated presentation of documents, the appellants have pleaded in the reply that there is no semblance of proof that these documents were not within its knowledge or despite due diligence it has not been able to place these documents on record before the learned Court below. With all these averments, the appellants prayed for rejection of the application and requested for deciding the instant appeal on the basis of materials available on record.
18. Arguing IA No.1943 of 2014 under Order41, Rule27CPC, learned counsel for the respondent decree-holder submits that the documents sought to be placed on record are in the nature of public documents, which are relevant and their admissibility is free from any doubt, therefore, these documents are liable to be taken on record in the interest of justice for pronouncing judgment. Mr. Rishabh Sancheti, learned counsel would contend that additional documents which have important bearing on the main issue and are necessary to remove any lacuna in evidence, may be taken on record in the peculiar facts and circumstances of the instant case wherein learned trial Court has closed the evidence of judgment-debtor RICCO. Learned counsel, in order to clarify that additional evidence would not prejudice the appellants in any manner, submits that document Annex.A/1, order of set apart, dated 26th of July 1974 is admitted by the appellants in their earlier revenue suit which is part of the record, and Annex.A/2 lease-deed executed in favour of respondent RIICO by the State is also part of the record and pleaded in reply of RIICO, and therefore by taking these documents on record in the form of additional evidence, no prejudice can be caused to the appellants. Reiterating his submission on the issue concerning non-production of these documents after exercise of due diligence at the time when impugned order was passed, Mr. Sancheti submits that judgment-debtor RIICO (within whose power and possession these documents were at the relevant time) was debarred from producing evidence due to closure of its evidence, has necessitated production of these documents in the form of additional evidence at the appellate stage by the respondent decreeholder, which deserves due credence for doing substantial justice in the matter. Lastly, learned counsel has urged that the very edifice of the objections submitted by the appellants is the main Execution Case No.29 of 1996 and file of which has been requisitioned by this Court, the record of that case deserves cognizance by this Court for adjudicating the lis involved in the matter. In support of his contentions, learned counsel has placed reliance on a decision of Hon'ble Apex Court inUnion of India v. Ibrahim Uddin and Anr. [(2012) 8 SCC 148]. In this verdict, Hon'ble Apex Court discussed the provisions under Order41, Rule27threadbare to carve out the requisite parameters and yardsticks enabling the appellate Court to exercise such powers. The Court held:
47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.
19. Per contra, learned counsel Mr. S.C. Maloo for the appellants has strenuously urged that the additional evidence in the form of documents Annex.A/1 and A/2 are having no nexus with the disputed land, which is edifice of this litigation, and therefore, cannot be taken on record. Learned counsel for the appellants would contend that the application merits rejection for the simple reason that it has been filed after inordinate delay and there is no semblance of proof about due diligence on the part of respondent decree-holder. Learned counsel for the appellants has also urged that powers of the appellate Court under Order41, Rule27are not meant for patching up the weak points in the case and to fill up the omission in the Court of appeal. Lastly, learned counsel Mr. Maloo submits that record of the proceedings of other case, may be pending before the same Court, cannot be taken into consideration by the Court for deciding the issues involved in the present appeal. In the alternative, Mr. Maloo would contend that if the additional documents sought to be produced are allowed to be taken on record, the appellants may be permitted to cross-examine the decree-holder. In support of his contention, that land record of the proceedings of other case cannot be looked into, learned counsel has placed reliance on a decision of this Court inMadan Gopal & Ors. v. Shri krishan [2005 (2) DNJ (Raj.) 681]. In this verdict, the Court has opined that while dealing with a civil suit record of the other proceedings of the same court cannot be looked into unless made a part of the record of the suit. The Court held:
31. After considering the submissions, this Court is clearly of opinion that except the documents which have been produced on record in accordance with law, no other documents could have been looked at by the Court while dealing with a civil suit, even if the same be available in other proceedings in the same Court unless made a part of record of the suit or the proceedings under consideration. The formulated Question No.4 is answered in the negative, that is to say, that even if the Court was the same, it could not have looked into the record of other proceedings of Section 19-A.
20. For substantiating his arguments to negate the prayer of the respondent decree-holder for taking additional evidence on record under Order41, Rule27CPC, learned counsel for the appellants has placed reliance on following judgments:
*Bhure Khan (since deceased) through LRs. v. Shri Yasin Khan (now deceased) & Ors. [2014 (2) WLC (Raj.) 577]
* Decision rendered inS.B. Civil Writ Petition No.3545 of 2014 - Bhanwarlal v. Smt. Saraswati, decided on 23rd May 2014.
*Chief Municipal Officer v. Mahila Munni Devi & Ors. (AIR 2014 MP 129).
21. I have given my thoughtful consideration to the facts pleaded by the rival parties in IA No. 1943 of 2014 as well as reply thereof, and bestowed my consideration to the arguments advanced in the light of nature of documents sought to be placed on record. Set apart order Annex.A/1 issued by District Collector, Jodhpur, while exercising its statutory powers under Section 92 of the Rajasthan Land Revenue Act with the appended schedule, is in the nature of public document, whereby certain agriculture land is set apart for industrial purposes. The existence of the set apart order is partially admitted by the appellants in the revenue suit but for the objection that the said order cannot divest right of khatedar tenants acquired by their ancestor. Be that as it may, the fact remains that at the behest of ancestor or by the appellants, no endeavour was made to challenge the same before appropriate legal forum. Therefore, after issuance of the said order, the agricultural land mentioned in the schedule had acquired shape of the land for industrial purposes. The schedule appended with the order contents recital about Khasra No.953 as well as Khasra No.959. The clear endorsement in the order to the Managing Director RICCO further fortifies that land is entrusted to RIICO for development of industrial area. The recitals are also clear that the set apart order is issued to facilitate development of industries in the area for which land available is inadequate. While it is true that the order ought to have been placed on record at the behest of judgment-debtor RICCO, which it has failed to do, but on examining the overall factual scenario, it clearly and unequivocally emerges out that this document is having important bearing on main issue. The very edifice of allotment of industrial plots to the respondent decree-holder is this set apart order and therefore the interest of justice demands that something which remained obscure be filled up by admitting this additional evidence for pronouncing judgment in more satisfactory manner. As regards document Annex.A/2, lease-deed executed by State in favour of RICCO - the respondent judgment-debtor, suffice it to say that allotment of land for developing industrial area to RIICO is clearly pleaded by the appellants in their objections and also admitted on oath in their statements. Moreover, the entire litigation is founded on allotment of industrial plots to the decree-holder by RIICO, which was entrusted to it by the State Govt., its relevance is unquestionable. Therefore, this document with the schedule appended is also a very relevant document having direct ramification on the lis involved in the matter. Law courts are meant for doing substantial justice in the matter and if legislature has empowered the appellate courts to admit additional evidence, it can very well exercise such powers for advancing the cause of justice. Hon'ble Apex Court, inSarda (Smt.) & Ors. v. Manikkoth Kombra Rajendran [(1996) 8 SCC 345], while examining the ambit and scope of Order41, Rule27CPC, has reiterated the same principle by holding that if the appellate Court comes to the conclusion that with receipt of documents and evidence in consideration thereof, it could not be possible to render fair justice between the parties, the appellate Court may exercise such discretion.
22. Although it is trite that powers under Order41, Rule27CPC are to be exercised sparingly with great care and circumspection, but then it cannot be said that appellate Court is loathed with the power of taking cognizance of additional evidence to remove any lacuna in evidence and for clearing any doubt at the cost of sacrificing sacrosanct cause of justice. Courts are expected to exercise discretion in such eventualities for advancement of substantial cause and not to thwart the same on mere technicalities.
23. One more redeeming feature of the case is that the additional evidence sought to be produced by the respondent are certified copies of the documents which are in the nature of public document and ordinarily authenticity of such documents cannot be doubted or suspected when these documents are secured from the public officer having custody of such public documents.
24. The legal precedents, on which rival parties have placed reliance, are examined by me in the backdrop of facts and circumstances of the instant case. Legal position is no more res integra that in none of these judgments powers of the appellate Court to allow additional evidence to be taken on record is completely chipped. The individual case requires consideration on such application in the background of factual situation and ratio decidendi of a decision cannot be applied in abstract sense. In totality, law on the point is no more fluid and if the legislature in its wisdom has clothed appellate courts to allow production of additional evidence, same can very well to be exercised within the four corners of Order41, Rule27of CPC.
25. Upon consideration of the arguments vociferously canvassed on behalf of appellants, I do not feel persuaded to non-suit respondent decree-holder for the simple reason that parties are litigating on an issue involving industrial plot allotted to the decree-holder by RIICO, allegedly by encroaching on the rights of the appellants. Therefore, in totality, for clearing decks so as to enable this Court to pronounce a judgment, a discretion is to be exercised in favour of the respondent decree-holder. In this view of the matter, additional evidence tendered by the respondent decree-holder, in the form of documents Annex.A/1 and A/2, is allowed to be taken on record.
26. The other prayer of the respondent decree-holder to take cognizance of the record of Execution Case No. 29 of 1996, which is requisitioned by this Court, suffice it to observe that the objections submitted by the appellants, being in fact emanated from the said execution case, and therefore the nexus of execution case and objections cannot be ruled out. Moreover, in the objections submitted by the appellants there are references about the proceedings undertaken in Execution Case No.29 of 1996 and even evidence is also tendered in this behalf. Therefore, the appellants cannot be permitted to eschew their own admission so as to persuade this Court not to take cognizance of the record of execution case. The judgment in Madan Gopal & Ors. (supra), is clearly distinguishable in the facts and circumstances of the instant case. Therefore, the ratio decidendi of that judgment cannot render any assistance.
27. In totality, the Court, in its discretion, for appreciating the rival contentions, can delve deep into the matter to unearth truth by examining the record of Execution Case No.29 of 1996.
28. The alternative argument of learned counsel for the appellants for remanding the matter back to the learned Court below in the event of allowing additional documents to be taken on record, requires consideration in the backdrop of facts and circumstances of the instant case.
29. At the outset, it may be observed that order of set apart Annex.A/1 has been admitted by the appellants in their pleadings as well as evidence. One more redeeming fact is that after order of set apart, no Khatedari right can be granted to an individual as per Section 16 of the Tenancy Act. Unquestionably, a public document, anterior to the suit claiming khatedari right, filed by the appellants, or their predecessor deserves due credence. Adverting to document Annex.A/2, which is sought to be placed on record at the behest of respondent decree-holder, suffice it to observe that appellants have very candidly admitted in their pleadings as well as in their evidence that land was leased out to RIICO. The fact that State Government has entrusted land to RIICO for industrial development is clear and unequivocal in the pleadings and evidence of the appellants, and therefore, if this document is taken on record, no prejudice can be caused to the appellants. On the face of it, when existence of these documents is admitted by the appellants, remanding the matter back may not be productive, as no evidence can be tendered by the appellants to impeach these public documents. The material available on record and this additional evidence tendered at the behest of respondent decree-holder has persuaded this Court to believe that matter can be adjudicated at the appellate stage without remitting it back to the learned trial Court for requiring further corroboration on the additional evidence. There is yet another aspect of the matter that lease-deed was granted to the respondent decree-holder in the year 1978 and the decree-holder is litigating for vindication of its rights since 1981. After passing of the arbitral award and making it rule of Court, the execution laid by the respondent decree-holder is also pending since last almost two decades without yielding the desired results, and therefore, I do not think that at this distance of time it is desirable to consider the request for remanding the matter back favourably, especially in the peculiar facts noticed herein above. Hon'ble Apex Court inAhmed saheb (Dead) by L.Rs. and Ors. v. Sayed Ismail [(2012) 8 SCC 516], on which learned counsel for respondent decree-holder has placed reliance, has also considered this aspect of the matter and declined to relegate the parties once again to Court below due to lingering of the matters for years together. The Court held:
18. We are, therefore, of the view that the dismissal of the suit on the simple ground that Exhibit 69 was not a registered document cannot be accepted. Having regard to our above conclusion, the appeals deserve to be allowed. Since the claim of the plaintiff has been lingering from the year 1971, we do not wish to relegate the parties once again to the Court below for the simple purpose of ascertaining the arrears.
30. Even if the request for remanding the matter back is examined threadbare on the touchstone of Order41, Rule23, 23A & 24 CPC, in my opinion, when sufficient material exists on record, on which this Court can decide the matter finally, it is not desirable to remand the case back to lower Court. Therefore, I am not persuaded to accede to the alternative argument of learned counsel for the appellants for remitting the matter back to the learned trial Court after acceptance of application under Order41, Rule27CPC.
31. Now switching on to the merits of the case, I proceed to examine the rival contentions for disposal of the appeal.
Submissions Touching the Merits of the Case:
32. Learned counsel for the appellants submits that the allotment of industrial plots to the decree-holder by RIICO is under serious cloud inasmuch as when the land itself was leased out to RIICO on 10th of January 1979, how a lease-deed came into offing in favour of decreeholder anterior to that date.
33. Learned counsel submits that there are serious discrepancies in the industrial plots allotted to the decree-holder and the area of allotment, inasmuch as, the arbitral award, which was ultimately made rule of the Court, indicates area of allotment as 8000 sq.mtrs. whereas in execution proceedings measurement of the industrial plots is shown as 9250 sq.mtrs., which was a very vital issue, but the same has not been addressed by the learned Court below in the impugned order. Elaborating his submissions in this behalf, learned counsel would contend that in view of change in the material particulars of the land allotted for industrial purposes, decree is not executable. Mr. Maloo, while assailing the finding of the Court below on Issue No.1, submits that the finding is ex-facie perverse and based on complete misreading of the evidence of the appellants. Learned counsel also submits that while partially deciding issue in favour of judgment-debtor RIICO, the learned Court below has recorded a tentative finding, which is clearly vitiated in law. Addressing on Issue No.2, learned counsel would contend that despite umpteen material available on record to show that appellants have not been dispossessed from the land by RIICO, the learned Court below has recorded finding partially favouring the appellants on mere ipse dixit. Learned counsel has also questioned the findings of Court below on Issue No.3 & 4 by contending that the said findings are recorded by the learned Court below without examining the materials available on record including the report of Sale Amin. Submission of the learned counsel is that in fact no proceedings for executing the decree were undertaken by the Sale Amin and the entire proceedings are hoax and the so called possession delivered to the decree-holder is only a paper possession. Attacking the finding on Issue No.5, Mr. Maloo submits that there was umpteen material available on record to show that report of Sale Amin, including report of handing over of possession to the decree-holder, was fraudulent, but for repudiating the allegation of fraud the reasons incorporated in the impugned order are not convincing so as to make the impugned order vulnerable. Arguing on the crucial issue, i.e. issue No.6, relating to limitation, learned counsel for the appellants would urge that the objections were submitted within limitation when the appellants came to know about the proceedings undertaken by execution of decree and handing over of paper possession to the decree-holder on 30th of October 1996, therefore, the learned Court below has seriously erred in non-suiting the appellants solely on the ground of limitation. Learned counsel for the appellants further submits that the findings and conclusions of learned Court below on Issue No.6 in construing objection barred by limitation, are wholly perverse and not sustainable. Learned counsel for the appellants has also made an attempt during the course of arguments to question the legality and proprietary of the directions issued by this Court while deciding S.B. Civil Writ Petition No.7758/2007 and submits that the directions contained therein are beyond the scope of writ petition, therefore, being per-incuriam are not binding in nature. Learned counsel has also urged that order of restoration of possession without recording definite finding about dispossession is infirm and perverse. Mr. Maloo has also made scathing attack on the evidence of decree-holder and submits that there are many pitfalls in the testimony of NAW1 Shanti Prakash, which was completely eschewed by the learned Court below while recording finding on various issues. Lastly, Mr. Maloo has contended that when the judgment-debtor RIICO has not tendered any evidence, how and in what manner learned Court below has recorded finding partially favouring it on Issue No.1, 2 & 4. Mr. Maloo has also contended that once decree stands satisfied, warrant of possession cannot be issued afresh by the executing Court, was a crucial issue which has not been properly addressed by the learned Court below in the impugned order. Learned counsel, in support of his various contentions, has placed reliance on following legal precedents:
*Ramlal & Anr. v. Phagua & Ors. [AIR 2006 SC 623].
*Shri Paresar v. Municipal Board, Mount Abu [1997 (1) WLC (Raj.) 443].
*Bajranglal Shivchandrai Ruia v. Shashikant Ruia & Ors. [2004 (2) WLC (SC) Civil 296].
*Chokalingaswami Idol Thr. R.N. Pillai v. Gnanapragasam (Dead) by LRs. [2008 (2) WLC (SC) Civil 196]
*Merla Ramanna v. Nallaparaju & ors. [AIR 1956 SC 87].
*Santosh v. Jagat Ram & Anr. [2010 (1) WLC (SC) Civil 291].
*Bishnu Charan Mohanty & Anr. v. Rahas Bihari Das & Ors. [AIR 2013 Orissa 165].
*Ibrahim Sahib v. Konammal & Anr. [AIR 1923 Madras 25.].
*Shew Bux Mohata & Anr. v. Bengal Breweries Ltd. & Ors. [AIR 1961 SC 137].
*Shobha Lal v. Laxmi Lal [AIR 1981 Raj 20].
*Ram Sarup & Ors. v. Puran & Ors. [AIR 1971 P&H 106].
*Radhanath Das & Anr. v. Sadhan Chandra Dey [AIR 1935 Cal 245].
*The State of Rajasthan v. Rao Raja Kalyan Singh (dead) by his legal representatives [AIR 1971 SC 2018].
*Moly and Anr. v. State of Kerala [AIR 2004 SC 1890].
*Chief Engineer, Hydel Project & Ors. v. Ravinder Nath & Ors. [2008 CDR 427 (SC)].
*Mohd. Laiquiddin & Anr. v. Kamala Devi Misra (Dead) by LRs. & Ors. [2010 (1) WLC 189].
*Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & Anr. [2008 CDR 569 (SC)].
*Som Mittal v. Government of Karnataka [AIR 2008 SC 1528].
*Dwarka Prasad Agarwal (D) by LRs & Anr. v. B.D. Agarwal & Ors. [AIR 2003 SC 2686].
*Ramnik Vallabhdas Madhvani & Ors. v. Taraben Pravinlal Madhvani [AIR 2004 SC 1084].
*Kanta Parihar & 31 Ors. v. State of Rajasthan & Ors. [1999 (3) WLC (Raj.) 593].
*Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. [AIR 2007 SC 1077].
*Sayyed Ali & Ors. v. Andhra Pradesh Wakf Board, Hyderabad & Ors. [AIR 1998 SC 972].
*State of West Bengal & Ors. v. Banibrata Ghosh & Ors. [AIR 2009 SC 1845].
*Union of India & Anr. v. Association of Unified Telecom Service Providers of India & Ors. [AIR 2012 SC 1693].
*Shivshankar Gurjar v. Dilip [AIR 2014 SC 1182].
*State of Orissa & Ors. v. Md. Illiyas [AIR 2006 SC 258].
*Santosh v. Bheru Lal & Ors. [2010 WLC (Raj.) UC 314].
*Lachhman Das v. Ram Lal & Anr. [AIR 1989 SC 1923].
*Hariom Agrawal v. Prakash Chand Malviya [AIR 2008 SC 166].
*Commissioner of Income-Tax, Jaipur v. Sirehmal Nawalakha [2001 WLC (SC) Civil 780].
*Urban Improvement Trust, Jodhpur v. Gokul Narain & Anr. [AIR 1996 SC 1819].
*United India Insurance Co. Ltd. v. Rajendra Singh & Ors. [AIR 2000 SC 1165].
*Sewa Ram v. Firm Modaram Tulsiram [2001 (2) WLC (Raj.) 312].
*Shreenath & Anr. v. Rajesh & Ors. [(1998) 4 SCC 543].
*Hazi Abdul Gafar v. Suraj Mal [1999 (2) WLC (Raj.) 499].
*Anwarbi v. Pramod D.A. Joshi & Ors. [(2000) 10 SCC 405].
*Sameer Singh & Anr. v. Abdul Rab & Ors. [AIR 2015 SC 591].
*Ajeet Kumar Jain v. Smt. Urmila Sharma [1996 (1) WLC (Raj.) 514].
*Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors. [2006 (1) WLC (SC) Civil 717].
*Sadhana Lodh v. National Insurance Co. Ltd. & Anr. [2003 (2) WLC (SC) Civil 255].
*State of Haryana & Ors. v. Manoj Kumar [AIR 2010 SC 1779].
*Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil [2010 (2) WLC (SC) Civil 457].
34. Per contra, learned Senior Counsel, Mr. M.R. Singhvi, for judgment-debtor RIICO submits that if the award (Ex.P/23) and lease-deed (Ex.D-12/A-1) are properly construed, then there remains no doubt about the measurement of industrial plots allotted to the decreeholder, and therefore, submissions of the appellants in this behalf are superfluous. While joining the issue with the appellants on title of RIICO and its authority to allot industrial plots, Mr. Singhvi submits that entrustment of the land to RIICO by State for industrialization was never challenged at the behest of appellants and on the contrary in their earlier revenue suit and even in the pleadings in objections, allotment of land to RIICO has been admitted by the appellants. With these submissions, Mr. Singhvi has urged that appellants cannot be permitted to disown and eschew their admission to question rights of RIICO for allotment of industrial plots. While referring to award (Ex.P/23) laying emphasis on the foot-note and the endorsement, learned counsel submits that it clears all the doubts about original numbers of the industrial plots and subsequent re-numbered industrial plots allotted to the decree-holder as well as measurement of the land, therefore, no interference with the impugned order is warranted. Mr. Singhvi has also laid emphasis on the rule of Court dated 16th January 1996 (Ex.P/24), wherein while making the award rule of Court, the learned District Judge has passed the decree in terms of the award. At this stage, again referring to the arbitral award (Ex.P/23), Mr. Singhvi would urge that the sole arbitrator has recorded a categorical finding that respondent decree-holder be handed over possession of the land as per registered lease-deed. With all these submissions, Mr. Singhvi has contended that in view of the fact that matter has been examined by the learned Court below threadbare in this execution first appeal with the limited scope of judicial review, no interference with the impugned order is called for.
35. Learned counsel for the decree-holder, Mr. Rishab Sancheti, while taking a dig at the averments in the amended objections submitted by the appellants, submits that there is apparent contradiction in the pleadings of the appellants, inasmuch as, in Para 1 of the objections, the appellants have asserted that land measuring 21 bighas 4 biswas was entered in the name of their ancestor as Khatedar whereas in Para 2 while candidly admitting that more than 10 bighas of land was taken over by the RIICO, have still ventured to contend that they are in possession of 15 bighas of land. Buttressing his submissions in this behalf, Mr. Sancheti would contend that this apparent contradiction and in want of there being any proof about Khatedari rights of the ancestor of the appellants, their objections are not worth any credence and the learned Court below has rightly nonsuited them by rejecting the objections. Learned counsel Mr. Sancheti submits that insinuations hurled by the appellants against the officers of the Court, entrusted with the task of execution, are without any basis and moreover there is no candid disclosure by the appellants about handing over of possession to the decree-holder on the last day of October 1996. Assailing the sketchy pleading of the appellants in Para 7 of the objections, learned counsel submits that concealing material facts and clever drafting by the appellants cannot bring their objections within limitation and the learned Court below has rightly rejected their objections on the ground of limitation by placing reliance on their oral testimony and other materials, which warrants no interference.
36. Authenticating his submissions on limitation, learned counsel for the decree-holder has referred to the appeal (Ex.D/9) preferred by the appellants before Revenue Appellate Authority presented on 24th August 1996, wherein in Para 4 appellants have specifically pleaded that some incumbents made an attempt to dispossess them on 23rd August 1996. Placing heavy reliance on Ex.D/9, Mr. Sancheti submits that appeal (Ex.D/9) preferred by the appellants before the Revenue Appellate Authority and the recitals contained therein clearly and unequivocally falsify their positive assertion about the date of knowledge of threatened action of dispossession on 30th October 1996. In this behalf, elaborating his submissions, learned counsel for the respondent decree-holder has also referred to first information report lodged by the proprietor Shanti Prakash Ex.D/10 dated 25th August 1996.
37. Countering arguments of the learned counsel for the appellants on the judgment rendered by this Court in S.B. Civil Writ Petition No.7758 of 2007 that it is not binding on them and per-incuriam, Mr. Sancheti submits that an order passed by this Court inter-se parties is binding on the parties and cannot be disowned by either of the parties. Reiterating his submissions in this behalf with full vehemence, Mr. Sancheti has urged that this sort of argument is against the judicial propriety and contemptuous. While highlighting the conduct of the appellants, learned counsel Mr. Sancheti would contend that appellants are in habit of disowning every order passed by a judicial or quasi judicial authority at their whims and fancy, including set apart order by the State Government as well as the proceedings undertaken by RIICO against them under the Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1964, as is evident from the averments made in the revenue suit (Ex.D/2) filed by the appellants.
38. Castigating the appellants for their casual approach in pleading their cause, learned counsel submits that an order, which has attained finality under the Act of 1964 by virtue of Section 10 of the Act of 1964, cannot be disowned by the appellants at their convenience and the said order clearly indicates that as early as on 24th August 1979 they were in know of the fact that land has been allotted to RIICO for industrialization and they were sought to be evicted from it as unauthorized occupants.
39. While referring to Section 16 of the Rajasthan Tenancy Act, 1955, learned counsel for the respondent decree-holder submits that on the face of it, in view of set apart order passed by the District Collector, Jodhpur (Annex.A/1), suit for declaration about Khatedari rights by the appellants is not maintainable. Mr. Sancheti has also urged that on meaningful consideration of the objections, it is clearly borne out that the finding on Issue No.6 relating to limitation has not been assailed by the appellants, therefore, no indulgence can be granted. Learned counsel for the respondent decree-holder submits that there are serious inconsistencies and contradictions in the pleadings of appellants, inasmuch as, while admitting allotment of industrial plots to the decree-holder in Para 4 & 5, the appellants have completely juxtaposed their stand in Para 6, has made the objections per-se vulnerable and therefore the learned Court below has rightly rejected the objections. Learned counsel further submits that Para 5 of the revenue suit (Ex.D/2) speaks volume about the fact that appellants had the knowledge about setting apart of land and allotment to RIICO for industrial purposes. Further emphasising on the revenue suit (Ex.D/2), learned counsel Mr. Sancheti has urged that allotment of industrial plots to the decree-holder and execution of lease-deed dated 20th September 1978 has not been referred in the revenue suit dated 25th July 1981, whereas in revenue suit three other allottees of the industrial plots of even date are arrayed as defendants, clearly indicates the selective approach of appellants by concealing the material facts about allotment of industrial plots to the decree-holder, and therefore, the conduct of the appellants itself is sufficient to nonsuit them in this appeal. Learned counsel submits that in want of challenge being laid against the order of set apart under Section 92 of the Land Revenue Act, which has attained finality by afflux of time, nothing survives in this appeal for adjudication. Joining issue with the appellants on powers of the executing Court to execute a decree, learned counsel would contend that by virtue of Order21, Rule101, CPC executing Court can determine all the questions and the issues incidental thereto.
40. Refuting the argument of the learned counsel for the appellants that once pursuant to issuance of warrant of possession decree stands satisfied, no further execution of decree is desirable, wholly untenable. While referring to the additional evidence Annex.A/2, lease-deed executed by the State in favour of RIICO, learned counsel for the decree-holder submits that recitals contained therein clearly and unambiguously indicate that the lease-deed relates back to the year 1974, i.e. anterior to the lease-deed executed in favour of decreeholder, therefore, the argument of the appellants that RIICO had no authority to allot industrial plots is wholly preposterous. In support of his contentions, learned counsel for the respondent decree-holder has placed reliance on following legal precedents:
*Board of Trustees of Port of Kandla v. Hargovind Jasraj & Anr [(2013) 3 SCC 182].
*Brahmdeo Chaudhary v. Rihikesh Prasad Jaiswal & Anr [(1997) 3 SCC 694].
*B. Gangadhar v. B.R. Rajalingam [(1995) 5 SCC 238].
41. Heard learned counsel for the parties, perused the impugned order and thoroughly scanned the entire record of the case including the additional evidence tendered by respondent decree-holder.
Findings & Conclusions Vis-@-Vis Points For Determination:
Case in hand is languishing in Courts of law since last more than three decades. The first litigation, at the behest of respondent decreeholder, was launched in the year 1981 by way of filing a writ petition before this Court and the decree-holder made all efforts from nook and corner for redressal of his grievances and ultimately on passing of the arbitral award and making it rule of Court, it proceeded to get the decree executed in the year 1996. Effective and purposeful execution of a decree is a cherished goal of every decree-holder whereas its non-execution is quite paradoxical. Non execution of a decree, or facing undue hindrance in its execution may at times, cause nauseating feeling in the mind of decree-holder that his hopes are belied by procedural wrangles. It is in that background, the provisions for execution of a decree are incorporated in Order 21 CPC to facilitate execution of a decree smoothly and the provisions are not meant for thwarting execution of a decree on a plea/objection which is not legitimate within the four corners of various rules of Order 21 CPC. If the provisions contrained under Order 21 CPC are properly construed, then, it would ipso facto reveal that reaping the fruits of a decree for a decree-holder is a routine phenomenon and its result in catastrophic is an exception.
Points For Determination:
Now I bestow my consideration to the findings of the learned trial Court to adjudicate the following points of determination in chronological order:
I. Whether land of Khasra No.723/29 (New Khasras No.953 and 969) Vyasji ki Baori was the land allotted to RIICO by the State Government?
42. The first point for determination relates to allotment of land of Khasra No.723/29 (new Khasra No.953 and 969) Vyasji ki Baori and its allotment by the State Government to RIICO. The learned trial Court, on the basis of evidence of the litigating parties and materials available on record, has concluded that the issue is partially proved in favour of RIICO and decided the same accordingly. While arriving at this conclusion, the learned Court below has relied upon the testimony of A.W.1, Ajij Khan S/o Mede Khan, wherein he has admitted entrustment of land measuring 4 bighas and 12 biswas of Khasra No.323 by the State Government to RIICO. That apart, it has also taken note of the admission of A.W.1, Ajij Khan that part of the land of same Khasra measuring 6 bighas and 5 biswas is taken over by RIICO without lawfully dispossessing the appellants. Although the learned trial Court has taken cognizance of the order of set apart passed by District Collector, Jodhpur as well as Jamabandi of Samvat 2055 to 2058, showing entry of land in the name of RIICO, but in want of placing requisite document on record by RIICO, the issue is partially decided in favour of RIICO.
43. A very redeeming feature of the case is that lease-deed in favour of decree-holder is of the year 1978, whereas the revenue suit filed by the appellants or their ancestor, for declaration about khatedari rights of the agricultural land, is posterior to the date of execution of the lease-deed i.e. 1981. In this background, the evidence tendered by the appellants to stake their claim of khatedari rights on the land in question becomes contentious. Obviously, if someone is enjoying khatedari rights over agricultural land, there is no necessity for the individual to seek declaration from a competent revenue court. Moreover, taking into account the averments of the objectors, as the very edifice, on which objections are founded, it is rather difficult to completely absolve, or bail out the appellants from discharging their burden. It goes without saying that if the objector has joined issue to defeat cause of a decree-holder, it has to stand on its own legs and cannot be benefited for some pitfalls in evidence of the decree-holder, or the judgment-debtor, as the case may be. Admission of the objectors about entrustment of land by State Government to RIICO and availability of Jamabandi in favour of RIICO can be sufficiently construed as a proof to the effect that the land was entrusted to RIICO by the State Government. It is needless to emphasise here that admission of a party in the proceedings, either in pleadings or oral, is the best evidence which needs no further corroboration.
44. Hon'ble Apex Court in Ahmedsaheb (supra), while dilating on this aspect, held as under:
12. It is needless to emphasise that admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration. In our considered opinion, that vital aspect in the case viz. the admission of the respondent in the written statement about the rate of rent and the further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. The High Court failed to note the said factor while deciding the Second Appeal which led to the dismissal of the appeals. Even while eschewing Exhibit 69 from consideration, the High Court should have noted that the relationship of landlord and tenant as between the plaintiffs and the defendants was an established factor and the rate of rent was admitted asRs.800/- per year.
45. Therefore, even on the strength of materials available on record before the learned trial Court, there remains no doubt about entrustment of the land by State Government to RIICO and finding on Issue No.1, in this behalf, partially disfavouring the appellants cannot be categorized vulnerable at the behest of appellants.
46. At this stage, if the finding on Issue No.1 is subjected to judicial scrutiny on the touchstone of additional evidence tendered by the decree-holder, then it clears all the clouds hovering around the factum of allotment of land of Khasra No.723/29 (New Khasras No.959 and 969) by State Government to RIICO.
47. The set apart order passed by the District Collector, Jodhpur, dated 26th July, 1974 (Annex.A/1) is issued under Section 92 of the Rajasthan Land Revenue Act, 1956 with annexed Schedule-A, contains material particulars about the Khasras of Basni village and measurement of the land set apart for industrial purpose. In Schedule-A, at Serial No.30, Khasra No.953 is mentioned with measurement of 9 bighas and 10 biswas and Serial No.83 contains description about Khasra No.969 with measurement of land 12 bighas and 8 biswas. Therefore, the entire land of old Khasra No.723/29 with new Khasras No.953 and 969 measuring 21 bighas and 4 biswas is covered by the set apart order.
48. Now adverting to the document Annex.A/2, lease-deed, executed by the State Government in favour of RIICO dated 10th of January, 1979 with annexed schedule, the recitals of which are pari materia to schedule appended with the set apart order (Annex.A/1), makes it crystal clear that entire land of Khasra No.953 and 969 of Basni village was handed over to RIICO by lease-deed (Annex.A/2). At this stage, it is also pertinent to note that although the date of execution of lease-deed in favour of RIICO is 10th of January 1979, but its commencement is more than four years anterior to the execution of the lease-deed, inasmuch as Clause 2 of lease-deed, while defining the term of the lease, has clarified that the lease shall be deemed to have been commenced on the 29th day of October, 1974 and delivery of possession to RIICO on even date. The relevant excerpts of Annex.A/2, i.e., Clause 2 with sub-clauses (a) and (b) reads as under:
2. That the Government hereby covenants with the Company:
(a) That the lease shall be for a term of 120 years and shall be deemed to have commenced on the 29th day of Oct. 1974 and to have concluded on the 28th day of Oct. 2094 unless the lease is sooner determined in accordance with the hereinafter appearing;
(b) that the possession of the land is hereby delivered/has been delivered to the company on/or with effect from 29th day of Oct. 1974.
49. In the changed fact scenario and availability of sufficient material to dispel doubts and suspicion about allotment of land by State Government to RIICO, there remains no hindrance to decide Issue No.1 wholesomely in favour of RIICO - the judgment-debtor. It is noteworthy that appellants have very candidly admitted that part of the land belonging to this Khasra was taken over by RIICO, and therefore, a wholly unreliable oral evidence of the appellants cannot match the documentary evidence, which is in the nature of public documents like Annex.A/1 & A/2. Legal position on this issue is no more res-integra, inasmuch as Chapter-VI of the Indian Evidence Act, 1872 clearly envisages exclusion of oral by the documentary evidence. It is a cardinal rule of evidence, not one of technicality, but of substance, which it is dangerous to depart from, that where documents exist, they shall be produced as the best evidence of their own contents. Therefore, emergence of a clear picture about allotment of land by State Government to RIICO for industrial purpose has persuaded me to decide Issue No.1 wholly in favour of RIICO - the judgment-debtor.
50. How to meet this sort of situation, wherein this finding is not under challenge, either at the behest of RIICO - the judgment-debtor, or the decree-holder, is clearly envisaged under Order41, Rule33CPC under the caption "POWER OF COURT OF APPEAL". Therefore, even if there is no challenge to finding, may be wholly or partially against a party to the litigation, the appellate Court is not loathed with the power to record its finding favouring the cause of respondent for doing complete justice to the parties. Therefore, in totality, while affirming the finding on Issue No.1 with the modification that Issue No.1 is substantially proved in favour of respondent-RIICO, challenge to the finding on this Issue, at the behest of appellants, cannot be sustained. Therefore, the point for determination is accordingly adjudicated.
II. Whether the objectors were not dispossessed from entire land of Khasra No.723/29 (New Khasras No.953 and 969) by the RIICO?
51. Issue No.2 is essentially settled on the basis of pleadings of the appellants, and therefore, onus to prove the said issue was on them. On appreciation of evidence and materials available on record, the learned Court below has recorded finding on this issue partially favouring the cause of the appellants. While recording its finding, the learned trial Court has taken cognizance of the report of the Commissioner appointed by the Revenue Court but curiously, while analysing the evidence of the appellants, the learned Court below has eschewed relevant part of the discrepancy in the statements of witnesses A.W.2 Shafi Mohd. and A.W.3 Murad Ali. On a suggestive question to witness A.W.4 Allahanoor, he has pleaded ignorance about the set apart order issued by the State Government. It is also discernible from the finding on Issue No.2 that, while deciding Issue No.2 partially in favour of appellants, the learned Court below has also noticed some of the contradictions in the deposition of sole witness of decree-holder, NAW1 Shanti Prakash. Eventually, if the findings are critically analysed, then it would ipso facto reveal that the learned Court below has also noticed a very vital fact that RIICO - the judgment-debtor, has not tendered any evidence that the land was allotted to it by State Government and its possession was handed over.
52. Be that as it may, the fact remains that, on the face of it, this finding is required to be tested on the anvil of additional documents, Annex.A/1 and A/2. The set apart order is of 26th July, 1974 and the lease-deed, which is covering the land in question, has commenced w.e.f. 29th of October, 1974 with clear recital about delivery of possession of the land by State Government to RIICO.
53. At this stage, reference can be profitably made to certain averments contained in the revenue suit filed by appellants in the year 1981, which is Ex.D/2 on record. In Para 6 of the plaint under Sections 88, 92A and 188 of the Rajasthan Tenancy Act, the appellants have mentioned that the order was passed against their ancestors under the Act of 1964 on 24th August, 1979, however, while disowning the said order, the appellants have simply categorized the said order as nullity in eye of law without laying any challenge to the same.
54. The legal precedents, on which learned counsel for the appellants have placed reliance for this proposition, viz., Dwarka Prasad Agarwal, Ramnik Vallabhdas Madhvani and Hasham Abbas Sayyad (supra), are of no avail and consequence to the appellants in this behalf.
55. The Act of 1964 clearly envisages provision for eviction of unauthorized occupants under Section 5. Section 9 of the Act of 1964 provides remedy of appeal to an aggrieved individual, which can be filed before the District Judge of the district in which public premises are situated. Finality of the orders passed under the Act of 1964 is clearly envisaged under Section 10 of the Act of 1964. Section 10 of the Act of 1964 reads as under:
10. Finality of orders- Save as otherwise expressly provided in this Act, every order made by an Estate Officer or Appellate Officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
56. Therefore, in totality, I am unable to find any infirmity in the finding on Issue No.2, at the behest of appellants, to reverse or upset the same but for observing its vulnerability on the touchstone of Annex.A/1 and A/2 as well as document Ex.D/2 on record tilting balance in favour of respondents. Decision on point No.2 for determination is rendered accordingly.
III. Whether physical possession of part of the land owned and possessed by the objectors of Khasra No.723/29 (New Khasras No.953 and 969) was not taken on 23rd August 1996?
57. Issue No.3, as per impugned order, is partially proved in favour of respondent decree-holder. The parties to the litigation have locked horns on this issue to contest tooth and nail. While the appellants' endeavour is reversal of its finding and deciding it wholesomely in their favour, the endeavour of the respondents is to defend the finding and persuade this Court to render a verdict favouring their cause. In totality, on appreciation of evidence and materials available on record, more particularly, the proceedings undertaken by Sale Amin for execution of warrant of possession, it is amply clear that efforts were made for execution of warrant of possession on 13th June, 1996. It clearly emerges out of the finding on Issue No.3 that original report of Sale Amin has not been exhibited and only its certified copy, as Ex.D/8, is produced on record, and therefore, by not considering it to be primary evidence, the learned Court below has declined to rely upon the same. If the finding, as such, is construed, in light of the evidence tendered by rival parties, then it would ipso facto reveal that precisely the learned Court below has scrutinised the oral evidence tendered by rival parties having their own perceptions about taking over of possession of the land in question, or otherwise. For that finding, the learned Court below has also taken cognizance of revenue suit laid by appellants and the status-quo order passed by Revenue Appellate Authority concerning Khasra No.953/723.
58. For calling in question the partly affirmative finding by the learned Court below on this issue in favour of respondent decreeholder, the appellants have seriously questioned measurement of the land allotted to the appellants which according to them is 8000 sq.mtrs. in terms of application for allotment and has been projected as 9250 sq.mtrs., by the decree-holder. It is also urged that neither its correct dimensions, nor its location is mentioned with clarity and precision in the lease-deed as well as decree-sheet.
59. While joining issue with the appellants, the decree-holder has contended that entire record of Execution Case No.29/1996 is livid with the fact that appellants are concocting a series of falsehood and the record makes it clear that proceedings had happened in accordance with law and Sale Amin had gone to the site with police force duly authorised by the learned District Collector. It is also urged that, in their oral evidence, the appellants have candidly admitted that police had come to the site. In this regard, reliance is also placed on a suggestion given to the witness of the decree-holder, wherein the witness has stated eviction of two persons. Espousing its cause, the decree-holder has also placed reliance on a letter written by appellants to Superintendent of Police, Jodhpur on 24th August, 1996, so also, laying stay petition before the revenue Court against RIICO on 24th August, 1996 mentioning police proceedings. Admission of the star witnesses of the appellants, viz., Shakur and Hamid, that FIR was lodged against them, is also cited as material piece of evidence to support the finding on the issue in question.
60. Upon scrutinising the entire finding on Issue No.3, in conjunction with the materials available on record, it is difficult to categorize the finding of the learned Court below as infirm or perverse. A finding of fact recorded by the learned Court below, in its discretion on analysing the materials available on record, is per-se not erroneous on the touchstone of aforesaid pleas advanced by the appellants. In want of concrete material to substantiate the plea of the appellants, it is rather not possible for the appellate Court to dislodge the findings of the learned Court below partially favouring the cause of the decree-holder.
61. True it is that RIICO - the judgment-debtor, has not tendered its evidence, but its reply to the objections is on record and if the reply is harmoniously construed with the recitals contained in the lease-deed executed in favour of decree-holder, then, it would ipso facto reveal that besides the measurement of the plot allotted to the decreeholder, its location is also crystal clear. At this stage, reference can also be made to a decision rendered by this Court on 6th of January, 1994, wherein, at the threshold, Court has taken cognizance of the fact that respondent decree-holder firm was allotted a land measuring 9250 sq.mtrs., in Basni Industrial Area, II Phase, Jodhpur, consisting of Plots No.E-215, F-270 and F271, by the RIICO.
62. In that background, the contention of the appellants about location and measurement of the plots is merely superfluous and, in overall fact scenario, finding of fact recorded by the learned Court of first instance requires no interference in exercise of appellate jurisdiction. Point No.3 for determination is, accordingly, merits decision in affirmation favouring the cause of decree-holder.
IV. Whether Plots No.E-231, F-232, F-233 measuring 8233 sq.mtrs., is relocated and renumbered with same dimensions with new Plots No.E-215, F-270 and F-271?
63. Issue No.4, which has been decided in favour of respondent decree-holder in to to, has prompted the appellants to assail the said finding vociferously. Precisely, to assail the finding on Issue No.4, the appellants have relied on the version of the respondent decree-holder as well as RIICO that initially decree-holder was allotted Plots No.E- 231, F-232 and F-233 then how and in what manner these three plots are converted into Plots No.E-215, F-270 and F-271.
64. The entire argument of the appellants hinges on the fact that plots allotted to the decree-holder are different from Plots No.E-215, F- 270 and F-271. If the finding on this issue is examined in totality, then it would ipso facto reveal that no cogent evidence is tendered by the appellants to discharge their burden.
65. RIICO, in its return, has admitted this fact that, at the threshold, industrial Plots No.E-231, F-232 and F-233 were allotted to the decreeholder/firm, but subsequently the same plots were renumbered as E- 215, F-270 and F-271 respectively and, accordingly, lease-deed is executed for the aforesaid plots on 20th September, 1978. The decreeholder, in its reply, is reiterating the stand of the RIICO.
66. At this stage, it is just and proper to refer to the lease-deed (Ex.D/12), judgment dated 6th January, 1994 (Ex.DW/2A) and arbitral award (Ex.P/23) with specific reference to the part of the arbitral award and a seal of endorsement dated 20th October, 1994. The operative portion of arbitral award as well as endorsement dated 20th October, 1994 is reproduced as under:
" Therefore, in view of the judgment of Hon'ble High Court in Civil Writ Petition No.1043/81 decided on 06.01.94, the applicant firm should be given possession of the land as per the registered lease deed. The RIICO office at Jodhpur should take action accordingly."
67. While analysing the arguments on this issue, the appellants have also taken a dig at the pleadings of RIICO by contending that when the lease-deed was executed by State Government in favour of RIICO on 10th January, 1979 then how and in what manner RIICO has executed a lease-deed in favour of decree-holder anterior to that date, and precisely for that contention the appellants have invoked the well known doctrine of transfer of property that nobody can transfer a better title than his own.
68. In Ramlal (supra), Hon'ble Apex Court has duly recognised the principle settled by a catena of decisions that vendor cannot convey to the vendee a better title than she herself has.
69. In Shri Paresar (supra), this Court was concerned with the execution of decree, which was allegedly obtained fraudulently. While taking note of the fact that there was a policy decision of the Government prohibiting transfer of regularised land by a person, who has committed encroachment on the land of the Government or Municipal Board, the Court found that such a transfer is void ab-initio and is to be ignored within the meaning of Section 23 of the Indian Contract Act.
70. In Bajranglal Shivchandrai Ruia (supra), Hon'ble Apex Court has duly recognised the right of a defendant to question the title of the plaintiff, which he is had claimed on the basis of the act of State.
71. In Chokalingaswami Idol Thr. R.N. Pillai (supra), wherein question of ownership of the land was involved, and the trial Court recorded a finding about ownership of the land against Government. In that background, the Hon'ble Apex Court held that the First Appellate Court and High Court were not justified in holding that land belongs to the Government.
72. The propositions laid down in all these judgments are based on interpretation of law, in the backdrop of facts and circumstances of individual case, and this Court, while agreeing with the propositions of law without any demur, feels that these legal precedents are clearly distinguishable and the law laid down in these verdicts is having no ramification on the facts and circumstances of the instant case.
73. In view of availability of the lease-deed executed in favour of respondent decree-holder on record and conferment of title on RIICO, which has transferred the said land to decree-holder by a registered lease-deed after acquiring khatedari rights anterior to the execution of aforesaid lease-deed executed, there remains no quarrel that the land was validly leased out to the decree-holder by RIICO. As observed herein above, the lease-deed in favour RIICO by the State (Annex.A/2) commencing w.e.f. 29th October 1974 makes the things crystal clear and, in such a situation, the efforts made by the appellants to question finding on Issue No.4 prove abortive, and consequently, unhesitatingly, I fully concur with the findings of the learned Court below on Issue No.4. Thus, finally, I conclude that Point No.4 for determination merits decision in favour of respondent decree-holder.
V. Whether in execution of decree, for taking possession of land of objectors, proceedings were undertaken fraudulently?
74. Framework of Issue No.5 clearly and unambiguously suggests that it has been settled on a plea of appellants, and therefore, obviously burden to prove the same rested on them. In fact, the genesis of this issue is the averments contained in Para 7 and 8 of the objections. While insinuating officer of the Court, deputed to execute warrant of possession, the appellants have asserted that entire proceedings was a hoax, which was nothing but paper proceedings. It is also averred that the proceedings are dehors the law and carried out by the Sale Amin in collusion with the decree-holder by keeping the Court in dark. The learned Court below has observed in the impugned order that for proving this issue material evidence has not been tendered by the appellants. While reiterating its finding on Issue No.3 about allotment of industrial plots to the decree-holder measuring 9250 sq.mtrs., the learned Court below has categorically held that a specific prayer is made by the decree-holder in execution petition for handing over the possession of Plots No.E-215, F-270 and F-271 with requisite particulars about its location. The learned trial Court has also thoroughly examined the warrant of possession issued by the Court, and while repudiating the contention of the appellants that it is a spurious document, the Presiding Officer has observed that it bears his signature as then Presiding Officer of the Court of Additional District Judge No.1, Jodhpur. It is further recorded in the impugned order that it was signed in absence of the then District Judge, Jodhpur, Shri D.N. Joshi (as he then was) having authority to do so. Therefore, in totality, the learned Court below has completely ruled out the theory propounded by the appellants that execution of warrant of possession is carried out fraudulently or dehors the law.
75. Appellants have vociferously assailed the said finding of the learned Court below by reiterating their stand before the learned Court below. On the other hand, the respondent decree-holder has stoutly defended finding on Issue No.5. While laying emphasis on the execution proceedings in Execution Case No.29/1996, on which the entire objections are founded, it is urged on behalf of the respondent decree-holder, that there is no semblance of proof that proceedings were not carried out in adherence of law. The respondent decreeholder has also placed heavy reliance on the report of Sale Amin, which is part of the record to substantiate its contentions.
76. It goes without saying that proceedings undertaken by the authorised officer of a Court of law cannot be impeached at the behest of a party to the litigation at its whims and fancy. Allegations against the authorised officer of the Court, who was entrusted with the task of executing warrant of possession, require strict proof and are not to be relied upon mere bald statements. Learned Court below has rightly observed that the evidence adduced by appellants in this behalf is absolutely hazy and, as such, it is insufficient to categorize the proceedings undertaken by Sale Amin as fraudulent or hoax. This Court is constraint to observe that well it is true that a litigant seeking redressal from an appellate Court can advance any argument to assail the findings of the learned Court below as perverse or dehors the law, but it is not desirable for an aggrieved party to put-forth fanciful argument at its whims or convenience. Castigating sacrosanct nature of Court proceedings, without arraying the alleged erring party to the litigation, itself is sufficient to expose the concoction and falsehood of the allegations. Therefore, in totality, I fully concur with the finding on Issue No.5 recorded by the learned Court below and the same warrants no interference. In view of non-interference with the findings and conclusions of the learned Courts below, the answer to Point No.5 for determination is in negation to completely repudiate the theory of fraud.
VI. Whether objections merit dismissal as barred by limitation?
77. Issue No.6 is very vital as the decision on the same has sealed fate of the appellants. While recording its finding, the learned trial Court has rejected the objections of the appellants as barred by limitation.
78. Considering the great significance of the issue, appellants have made whole-hearted endeavour to assail the said finding craving a favourable verdict. On the other hand, the respondent decree-holder has stoutly defended the said finding and made endeavour to persuade this Court to concur with the said finding.
79. At the outset, it may be observed that the facts pleaded by the appellants for their dispossession from the disputed immovable property are absolutely vague, cryptic and unspecific inasmuch as material facts about factum of dispossession, more particularly, the crucial date is conspicuously tentative, not inspiring confidence. It is trite that dispossession of a person from immovable property by decree-holder or purchaser is sine-qua-non for laying an application under Rule99Order21CPC. It is noteworthy that the grounds set out in the memo of appeal to challenge finding on Issue No.6 are also not convincing. A redeeming feature, which cannot be lost sight, is the inconsistency in the stand of the appellants, inasmuch as, one breath of their positive assertion is that decree was never executed and possession was never delivered to the decree-holder and, on the other hand, they are seeking relief of possession by invoking Rule99Order21CPC.
80. The learned Court below, while examining the materials available on record threadbare to decide this issue, has thoroughly discussed the evidence tendered by the appellants. In this regard, the learned Court below has referred to the statement of Ajij Khan (A.W.1) in conjunction with the averments contained in the stay petition moved on behalf of the appellants before the revenue Court. A material contradiction about the date of knowledge as to when possession was handed over to decree-holder is also noticed by the learned Court below, wherein the witness has at first admitted that possession was delivered to the decree-holder in 1986, but then changing his stand asserted that it came to his knowledge in 1986/1987. In order to decide this issue, the learned Court below has also critically examined the statements of the witnesses of decree-holder who averred that possession was delivered on 25th August, 1996, but subsequently the appellants have made an overt act to undo the lawful proceedings undertaken by Sale Amin with police aid. During cross-examination of NAW1, Shanti Prakash, on a suggestive question by the appellants that Sale Amin has simply taken over possession from Shakur and Hamid, the witness has critically stated that possession of the entire land was handed over. Noticing this fact, the learned Court below has concluded that, in fact, the Sale Amin, while executing warrant of possession, has handed over possession of the immovable property from appellants to the decree-holder. A report lodged by Ajij Khan (A.W.1) before the police authorities on 25th August, 1996 is also indicative of the fact that factum of taking over of possession by decree-holder was within their knowledge as early as on 25th of August, 1996.
81. The appellants have though asserted in their objections the date of knowledge as 30th of October, 1996 in respect of dispossession proceedings undertaken by Sale Amin, but no reliable evidence has been tendered in this regard. The relevant Article governing the province of limitation in the subject-matter is Article 128 of the Limitation Act, which reads as under:
128. Order of rejection of the memorandum of appeal - Whether falls within the definition of the word "decree". - It is true that the rejection of a plaint on the ground of limitation is a decree. But the order of rejection of the memorandum of appeal does not amount to rejection of the plaint and thus does not fall within the definition of the word "decree". In words, an order dismissing an appeal after dismissal of an application under Section 5 of the Limitation Act is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure.
82. Hon'ble Supreme Court, in Merla Ramanna, while considering Article 165 of the Limitation Act, 1908, which is now Article 128 in the Limitation Act of 1963 and deals with Rule100Order21CPC, has held as under:
Under Article 165, an application by a person dispossessed of immovable properties and disputing the right of the decree-holder or purchaser at an execution sale to be put in possession must be filed within 30 days of dispossession. If this is the article applicable to the present proceedings, then it must be held that the plaint treated as an execution application was filed out of time.
InThattantavita v. Kombi Aliasson AIR 1919 Mad 269 (FB)(F), a Full Bench of the Madras High Court has held, dissenting from the view previously expressed in 'Ratnam Aiyar v. Krishna Doss Vital Doss', 21 Mad 494 (G) and following AIR 1916 ALL 104that this article applies only to applications for being restored to possession by persons other than judgment-debtors, as under Order21, Rule100Civil Procedure Code and that applications by judgment-debtors claiming relief on the ground that their properties had been erroneously taken in execution of the decree are not governed by it.
This view was approved and followed in - 'Rasul v. Amina', AIR 1922 Bom 271 (H)and 'Bahir Das v. Girish Chandra,' AIR 1923 Cal 287(I). We are of the opinion that the law has been correctly laid down in the above decisions, and that in accordance therewith, the present proceedings are not barred by Article 165.
83. In case of Santosh (supra), the Hon'ble Apex Court was concerned with a fraudulent decree. The appellate Court in that case on unearthing the fraud, had declared the decree nullity and set aside the same.
84. In Bishnu Charan Mohanty (supra), the Hon'ble High Court of Orissa, while construing true purport of Article 128 of the Limitation Act, has laid emphasis that limitation for an application under Order21, Rule99CPC would run from the date of knowledge and not from the date of dispossession.
85. Ratio decidendi of the judgments referred by the appellants cannot render any assistance to them for the simple reason that finding of fact recorded by the learned Court below, in this behalf, are based on sound appreciation of evidence indicating date of knowledge to the appellants about dispossession, and therefore, same cannot be categorized as perverse. Moreover, it is to be noticed that apparently there is no ground set out in the objections about a fraudulent decree. The proceedings for claiming possession of the ancestral plots allotted to the respondent decree-holder commenced in the year 1981 when Writ Petition No.1043 of 1981 was filed. While disposing of that writ petition, this Court was pleased to refer the matter to arbitration, thereupon, the arbitrator passed award and the same was made rule of the Court and the decree was put to execution by decree-holder in 1996.
86. As discussed herein above, the material particulars about the plots allotted to the decree-holder and subsequent alteration of the plot numbers measurement of the land allotted is not a subject-matter of dispute. The legal precedents, on which learned counsel for the appellants have placed reliance, cannot come to their rescue so as to upset the finding of the learned Court below.
87. In view of candid admission by the appellants about the date of knowledge of dispossession of the disputed immovable property, I am afraid, bald plea of the appellants about date of knowledge on sacrosanct day of 30th of October, 1996 cannot be relied upon.
88. Admission is the best evidence, which can be relied upon by the opposite party. Reliance, in this behalf, can be profitably made to a decision of Hon'ble Supreme Court inNarayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi & Ors. [AIR 1960 SC 100], wherein, while examining the value of admission, the Apex Court held as under:
11. In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and his predecessors in the title which he claims, had admitted on numerous occasions that the public had a right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devasthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive 'of the matter, unless successfully withdrawn or proved erroneous. We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated.
89. As such, in the factual gamut of the case, there remains no cloud regarding finding on Issue No.6 recorded by the learned Court below. The learned Court below has rightly construed the provisions of Article 128 of the Limitation Act and taking into account the date of knowledge of dispossession as 25th of August, 1996, has rightly nonsuited the appellants on the ground of limitation. The finding being absolutely just and proper calls for no interference. The crucial Point No.6, for determination pertaining to limitation, is therefore, decided against the appellants and in favour of respondent decree-holder.
VII. Whether after execution of decree, objections are sustainable?
90. While deciding Issue No.7, pertaining to applicability of the objections after execution of the decree, the learned Court below has ordered for restoration of possession of decree-holder in adherence of the directions issued by this Court while deciding Civil Writ Petition No.7758/2007. The observations of the Court, while deciding that writ petition, have been quoted supra.
91. Although the learned Court below has taken into account the legal precedents, on which the appellants have placed reliance to explain the requisite procedure for execution under Order21, Rule97to 101 CPC, but without discussing the legal precedents threadbare, the learned Court below, while rejecting the objections of the appellants, has ordered for restoration of possession to the respondent decree-holder in compliance of the directions of this Court.
92. In that background, the appellants have made endeavour to not only reiterate their contentions on merits of the case, but have also tried to impress upon this Court that directions issued by this Court, while deciding writ petition No.7758/2007 are not binding, by persisting with their contention that decree once executed cannot be made subject-matter of execution for issuance of warrant of possession again.
93. Although appellants have referred many judgments, in support of their arguments, to substantiate the plea of execution of warrant of possession and eventually satisfaction of the decree to urge that no further execution of decree by issuance of fresh warrant of possession is desirable by citing legal embargo, but in this connection, judgment in Ibrahim Sahib by the Madras High Court (supra) is clearly distinguishable inasmuch as in that case contesting party was the judgment-debtor and not an intruder.
94. In Shew Bux Mohata (supra), the decree-holder had acknowledged satisfaction of the execution of decree against the judgment-debtor, which is not a case here as the decree-holder has asserted that after execution of warrant of possession, the appellants have made an overt act to take possession of the property in question. This fact is also clearly discernible from reply of the decree-holder submitted before the learned Court below in response to the objections submitted by the appellants.
95. In Shreenath & Anr. (supra), Hon'ble Apex Court has discussed the scope of Rule 97 (1) of Order 21 CPC by holding that words 'any person' includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree. Same is the ratio in the case of Hazi Abdul Gafar (supra).
96. In Anwarbi (supra), Hon'ble Apex Court has held that a person, who is in possession of immovable property claiming legal entitlement thereto and obstructing execution of decree for possession, cannot be divested of possession without adjudicating his rights in appropriate proceedings.
97. The learned Court below has made sincere endeavour to adjudicate the rights of the appellants and, in view of the changed scenario, more particularly availability of additional evidence on record, there remains no shadow of doubt that appellants are having no right, title or interest on the land in question. On the face of it, when there is an order of set apart and consequential execution of lease-deed in favour of RIICO by the State and its subsequent allotment to the respondent decree-holder, merits of the objections of appellants is under serious cloud. This sort of situation and the fact that suit for declaration for khatedari rights instituted by the appellants is subsequent to the set apart order, is clearly hit by the embargo under Section 16 of the Tenancy Act. The objections of the appellants are superfluous and mis-matched to unsettle the legitimate claim of the decree-holder for delivery of possession of the land in question.
98. In Sameer Singh & Anr. (supra), the lis involved in the matter was altogether different before the Hon'ble Apex Court and the Court has held that when the objections against dispossession by decreeholder are rejected by the executing Court, the same cannot be construed as a decree and as such it is assailable before this Court by invoking supervisory jurisdiction under Article 227 of the Constitution of India.
99. Hon'ble Apex Court, in B. Gangadhar (supra), has thoroughly discussed the provisions of Order 21 Rules 35, 98 and 101 as well as Order1, Rule3CPC. While discussing the rights of a tenant, against whom decree for eviction is passed, Hon'ble Apex Court has held that, by exercising power under Section 151 CPC, the executing Court can direct demolition of construction raised pendente lite without relegating the plaintiff to tortuous remedy of separate suit seeking mandatory injunction or for possession so as to avoid delay in execution or frustration and thereby defeat the decree. The Court held as under:
6. The right to ownership of a property carries with it the right to its enjoyment, right to its access and of other beneficial enjoyment incidental thereto. If any obstruction or hindrance is caused for its enjoyment or use, the owner, of necessity, has the remedy to have it removed. If any obstruction is raised by putting up a construction pendente lite or prevents the passage or right to access to the property pendente lite, the plaintiff has been given right and the decree-holder is empowered to have it removed in execution without tortuous remedy of separate suit seeking mandatory injunction or for possession so as to avoid delay in execution or frustration and thereby defeat the decree. The executing court, therefore, would be justified to order its removal of unlawful or illegal construction made pendente lite so that the decree for possession or eviction, as the case may be, effectually and completely executed and the delivery of possession is given to the decree-holder expeditiously. Admittedly, pending suit the petitioner had constructed shops and inducted tenants in possession without permission of the court. The only course would be to decide the dispute in the execution proceedings and not by a separate suit.
7. Order21, Rule35(3) envisages that:
"Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decreeholder in possession."
8. Rule 35(3) of Order 21 itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the court executing the decree is entitled to pass such orders incidental, ancilliary or necessary orders for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or superstructure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment-debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any constructions on the property pending suit, the decree-holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the court. Otherwise, the decree becomes inexecutable driving the plaintiff again for another round of litigation which the code expressly prohibits such multiplicity of proceedings.
100. In Brahmdeo Chaudhary (supra), yet again Hon'ble Apex Court, while discussing the true purport of Order 21 Rules 35, 97, 98, 99, 101 and 105 CPC, has held that in the event of an application filed by decree-holder for issuance of fresh warrant of possession with the help of police force, the only right available to obstructionist in possession is to hear about his alleged right to the property and to adjudicate the same. The Court further held that if the resistance or obstruction is found to be unjust or unwarranted then the same would be removed by the Court. The Court held as under:-
6. On the undisputed facts on record it has, therefore, to be held that because of the resistance or obstruction offered by the appellant, amongst others, on 28-4-1991 the application moved by the respondent decree-holder on 6-5-1991 was necessarily to be one falling within the scope and ambit of Order21, Rule97. It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order21, Rule97CPC could have been offered by any person. The words "any person" as contemplated by Order21, Rule97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. It is not in dispute between the parties that no decree for possession has been obtained by Respondent 1 against the appellant. He is, therefore, prima facie a stranger to the decree. When he offered obstruction or resistance to the execution of the decree he would squarely fall within the sweep of the words "any person" as found in Order21, Rule97, sub-rule (1). Consequently it must be held that Respondent 1's application dated 6-5-1991 though seeking only re-issuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order21, Rule97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order. We may in this connection also refer to the Schedule to the CPC, Appendix E which gives various forms for summons to be issued to parties in execution proceedings especially Form No. 40 which deals with "Summons to appear and answer charge of obstructing execution of decree (Order21, Rule97)". The said form reads as under:
Summons to Appear and Answer Charge of Obstructing Execution of Decree (Order21, Rule97) (Title)
Whereas , the decree-holder in the above suit, has complained to this Court that you have resisted (or obstructed) the officer charged with the execution of the warrant for possession:
You are hereby summoned to appear in this Court on the day of 19, at a.m., to answer the said complaint.
Given under my hand and the seal of the Court, this day of 19. Judge."
7. It is, therefore, clear that in an application under Order21, Rule97moved by a decree-holder who complains about the resistance or obstruction offered by any person to the decree-holder in his attempt at obtaining possession of property and who wants such obstruction or resistance to be removed which otherwise is an impediment in his way, a lis arises between the decree-holder applicant under Order21, Rule97on the one hand and such obstructionist or resisting party on the other, to whom summons have been issued by the Court as per Form No. 40. When such a lis arises, it has to be adjudicated upon as enjoined by Order21, Rule97, sub rule (2). The procedure for adjudicating such a lis has to be culled out from the remaining succeeding Rules of Order 21. This directly takes us to the consideration of Order21, Rule101which reads as under:
"101. Question to be determined. - All questions (including 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 or their representatives, and relevant to the adjudication of the application, 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 questions."
Now it is obvious that such questions relating to the right, title and interest in the property arising between the parties to any proceedings under Order21, Rule97or Rule 99 have to be adjudicated upon by following an identical gamut of procedure by the executing court. The said gamut of procedure is laid down by Order21, Rule98which reads as under:
"98. Orders after adjudication. - (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub rule (2), -
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days."
It is now time for us to consider Order21, Rule99which reads as under:
"99. Dispossession by decree-holder or purchaser. - (1) Where any other person than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
8. A conjoint reading of Order 21, Rules 97, 98, 99 and 101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order21, Rule35then the decree-holder has to move an application under Order21, Rule97for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order21, Rule97, sub-rule (2) read with Order21, Rule98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order21, Rule98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order21, Rule101and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order21, Rule99CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order21, Rule98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order21, Rule99to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order21, Rule98, sub-rule (1) would be deemed to be a decree as laid down by Order21, Rule103and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order21, Rule101.
101. In the backdrop of the fact situation and the position of law, as emerged out from various legal precedents, referred to supra, there remains no quarrel that, while considering the objections under Order21, Rule99and100CPC, the Court is not loathed with power to take note of any unlawful act by the objector/obstructionist and the said question being incidental to the objections can very well be determined by the executing Court to facilitate reaping of fruits flowing from decree by the decree-holder.
102. It is needless to observe here that appellants have mentioned the date of apprehended action of dispossession by decree-holder as 30th of October, 1996, then, in that event, positive assertion of the decree-holder to put them into possession on 21st of November 1996, which is evident from their stand in reply to the objections is within 30 days, can very well be construed as a petition under Order21, Rule97CPC and the same is saved by virtue of Article 129 of the Limitation Act.
103. There is absolutely no embargo about competence of an executing Court, to consider all questions raised by the persons offering obstruction under Rule97Order21CPC, to pass appropriate order, which under the provisions of Order21, Rule103is to be treated as a decree.
104. Be that as it may, the fact remains that the learned Court below has ordered for restoration of possession to the decree-holder, in adherence of the directions issued by this Court, while deciding writ petition No. 7758 of 2007, and therefore, the submissions of the appellants to question the aforesaid directions req
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uire adjudication. Appellants have vociferously canvassed that directions issued by this Court are wholly without jurisdiction and per- incuriam and have made endeavour to rely on many legal precedents. The arguments advanced by the appellants are without properly construing the order. If the Order dated 19th December, 2007 is constructed, in the backdrop of facts and circumstances of the instant case, then, it would ipso facto reveal that the Court was constraint to make such order to check the dilatory tactics adopted by the appellants to prolong the proceedings by making applications after applications. This Court has taken cognizance of the fact that conduct of the appellants is seriously questionable and their whole attempt is to delay the proceedings. 105. Hon'ble Apex Court inRamrameshwari Devi & Ors. v. Nirmala Devi & Ors. [(2011) 8 SCC 249]has strongly deprecated the abuse of process of Court and dilatory tactics adopted by a litigant. To meet the challenge of prevailing delay in civil litigation, Court has proposed some solutions to effect drastic change in the existing system. The Court held as under: 52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials: A. Pleadings are the foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial Judge to carefully scrutinise, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed. B. The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at the truth of the matter and doing substantial justice. C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. D. The court must adopt realistic and pragmatic approach in granting mesne profits. The court must carefully keep in view the ground realities while granting mesne profits. E. The courts should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing the parties concerned appropriate orders should be passed. F. Litigants who obtained ex parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court. G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice. H. Every case emanates from a human or a commercial problem and the court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice. I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided. J. At the time of filing of the plaint, the trial court should prepare a complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of the judgment and the courts should strictly adhere to the said dates and the said timetable as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed. K. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided. L. At the time of filing of the plaint, the trial court should prepare a complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of the judgment and the courts should strictly adhere to the said dates and the said timetable as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed. 106. Therefore, the observations made by this Court, while disposing of the aforesaid writ petition, which was intra-party litigation, the Court's concern was to expedite disposal of the matter, and as such argument of the appellants that these observations are per-incuriam or without jurisdiction, cannot be countenanced. 107. Assuming it that the observations are having no nexus with the lis involved in the matter, I am afraid, it is not open for the appellants, who were party to the litigation, to disown the said observations. Moreover, observations made by this Court were on a petition filed by the appellants to seek amendment in their objections second time with the sole intention of prolonging the matter so as to keep decree-holder at bay to get the fruits of the decree, which was passed as early as in January 1996 and the proceedings for which initiated in 1981. The legal precedents on which learned counsel for appellants has placed heavy reliance are clearly distinguishable and are therefore of no assistance to categorize directions per-incuriam. 108. It may also be observed here that the appellants cannot be permitted to disown or eschew the said order without challenging it before appropriate legal forum. Reliance, in this behalf, can be profitably made to a decision of Hon'ble Apex Court in Board of Trustees of Port of Kandla (supra). In this verdict, Hon'ble Apex Court, while considering plea of the plaintiff that order terminating his lease-deed is invalid, held as under: 27. The termination of the lease deed was by an order which the plaintiffs ought to get rid of by having the same set aside, or declared invalid for whatever reasons, it may be permissible to do so. No order bears a label of its being valid or invalid on its forehead. Anyone affected by any such order ought to seek redress against the same within the period permissible for doing so. We may in this regard refer to the following oft-quoted passage inSmith v. East Elloe Rural District Council, 2012 (2) WLC (SC) Civil 220. The following are the observations regarding the necessity of recourse to the Court for getting the invalidity of an order established: " An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' (Smith case7, AC pp.769-70) (emphasis supplied) This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed put repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects."* 28. The above case was approved by this Court inKrishnadevi Malchand Kamathia v. Bombay Environmental Action Group, wherein this Court observed: (SCC pp. 369- 70, para 19) "19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person." 29. To the same effect is the decision of this Court inPune Municipal Corpn. v. State of Maharashtra, 2012 (8) SCC 516wherein this Court discussed the need for determination of invalidity of an order for public purposes: (SCC pp. 225- 26, paras 36 & 38-39) "36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states: 'The principle must be equally true even where the "brand of invalidity" is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court'. He further states: 'The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the "void" order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another.' * * * 38. A similar question came up for consideration before this Court inState of Punjab v. Gurdev Singh. 39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. 'If the statutory time of limitation expires, the court cannot give the declaration sought for.'" (emphasis supplied) 30. Reference may also be made to the decisions of this Court inR. Thiruvirkolam v. Presiding Officer, 2011 (2) WLC (SC) Civil 618.,State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, 2010 (1) WLC (SC) Civil 291andTayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., 2010 (1) WLC (Raj.) 189, where this Court has held that an order will remain effective and lead to legal consequences unless the same is declared to be invalid by a competent court. 109. While fully concurring with the findings and conclusions of the learned Courts below and the reasons spelt out herein above after threadbare discussion on the point in issue, Point No.7 for determination merits decision accordingly. 110. Therefore, viewed from any angle, the impugned order, whereby the learned Court below has directed restoration of possession to the decree-holder cannot be categorized as perverse or infirm and considering the dubious conduct of the appellants and considering the peculiar facts and circumstances of the instant case, I do not feel persuaded to interfere with the said directions. 111. The upshot of the above discussion is that there is no merit in this appeal and the same is hereby dismissed. The stay petition is also dismissed. Let records of learned Court below in Misc. Case No.77B/1996 and Execution Case No.29/1996 be sent back forthwith. Costs are made easy. Appeal Dismissed - Stay application also dismissed.