THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
SECOND APPEAL No.1338 of 2004
Ahmed Shah Khan
Smt. Muneerunnisa Begum @ Sultana and others
Counsel for the appellant: Mr. M.A. Basith
Counsel for the Respondents: Mr. P. Pandu Ranga Rao
? Cases referred
AIR 1978 SUPRME COURT 1393
The appellant filed O.S.No.3690 of 1993 in the Court of the VI Junior
Civil Judge, City Civil Court, Hyderabad, for the relief of specific performance
of an agreement of sale against the 7th respondent herein in respect of 150
square yards of land in Survey No.284 of 2011, Gudimalkapur. It was pleaded
that the 7th respondent executed an agreement of sale on 23-01-1976, delivered
possession of the plot, but did not execute the sale deed inspite of repeated
requests. The suit was decreed on 20-08-1997. The appellant filed EP No.161 of
1999 for execution of the decree. Since the 7th respondent did not come forward
to execute the sale deed, the Court itself executed the document deed of
conveyance on 21-04-2000. When steps were initiated for recovery of possession
of the property, resistance was offered by the respondents
1 to 6 herein.
2. On noticing that steps were initiated for dispossessing them from the
property, the respondents 1 to 6 (for short 'the respondents') filed EA No.351
of 20000 under Rule-99 read with Rules 101 to 104 of Order XXI CPC. They
pleaded that Syed Bin Mubarak, the husband of the 1st respondent and father of
the respondents 2 to 6 purchased the extent of 300 square years in Survey
No.284/9 to 12 under an agreement of sale on 10-08-1973 from the original owner
and that ever since then he is in possession of the property. Syed Bin Mubarak
is said to have died on
20-06-1997. Respondents have also stated that the property was assessed to tax
and that they are paying the tax regularly. It was stated that the appellant
herein filed O.S.No.3235 of 1981 against Syed Bin Mubarak for injunction in
respect of the same property and that the suit was dismissed for default on 22-
04-1998, and that no effective steps were taken, thereafter.
3. The Executing Court dismissed E.A. No.351 of 2007 through order, dated 30-
12-2002. The respondents 1 to 6 filed A.S. No.25 of 2003in the Court of the II
Additional Chief Judge, City Civil Court, Hyderabad. The appeal was allowed
through judgment dated
14-06-2004. Hence, this Second Appeal.
4. Sri M.A. Basith, learned counsel for the appellant submits that an
application filed under Rule - 99 is required to be tried and disposed of as
though it is a separate suit to resist recovery of possession, and the
respondents 1 to 6 were under obligation to prove their title.
He contends that
the sole basis for the respondents to claim ownership was an unstamped and
unregistered agreement of sale, and even that was not filed into the Court. He
submits that the lower appellate Court was not justified in allowing the
application for the filing of documents, which do not have the effect of
conferring any title. He submits that there was no basis for the very
institution of the E.A. unless the respondents were actually dispossessed from
Placing reliance upon the judgment of the Supreme Court in Ram
Rattan v. Bajrang Lal and others1.
He submits that an unregistered and
unstamped agreement of sale does not confer rights, much less title.
5. Sri P. Pandu Ranga Rao, learned counsel for the respondents
1 to 6, on the other hand, submits that it is permissible for a third party to
file an application under Rule- 97 or 99 of Order - XXI before the actual
dispossession, takes place. He contends that for all practical purposes, the
respondents are entitled for the benefit under Section 53-A of the Transfer of Property Act, to offer resistance, since their claim is based upon an agreement of sale.
6. The appellant obtained a decree for specific performance of an agreement, in
respect of a plot of 150 square yards described in the suit schedule. The sale
deed was executed by the Executing Court itself, since the judgment debtor did
not come forward. Dispute arose at the stage of taking delivery of possession.
The respondents resisted the delivery of possession, by pleading that their
predecessor in title was delivered possession of the property under an agreement
of sale, and filed an application under Rule - 99 of Order-XXI C.P.C.
7. The appellant opposed the application by filing a counter. The Executing
Court framed a point for consideration, viz., whether the respondents herein are
the original owners of the property. On behalf of the respondents, PW-1 was
examined and Exs.P-1 to P-21 were filed. The appellant deposed as RW-1 and he
filed Exs.R-1 to R-6. On dismissal of the EA, respondents filed A.S. No.25 of
2003 and the lower appellate Court did not frame any independent point for
consideration and allowed the appeal.
8. It is not as if that the respondents were either trespassers or persons in
unlawful possession of the property. Their claim was based upon Ex.P-6, which is
in respect of a plot admeasuring 300 square yards. The other evidence adduced
by them included the special notice for self-assessment, receipt of payment of
property tax, slum certificate, water tax payment receipt, sanction letter from
the Municipal Corporation, electricity bills etc. The appellant intended to
dispossess the respondents from the property. It is relevant to mention that he
filed O.S.No.3690 of 1993 against the predecessor of the respondents in respect
of the same property. The suit was dismissed for default and no further steps
9. It is true that a third party can resist the delivery of possession in the
execution proceedings whether at the stage of attachment or under Rule - 58 or
delivery of possession by establishing independent title by filing applications
under Rule-58 or 99, as the case may be, of Order-XXI CPC. Filing of
independent suits is also prohibited in matters of this nature. A slightly
different approach becomes necessary where the person in possession of the
property claims the right under a separate agreement of sale. The agreement of
sale by itself does not confer title upon such person. However, he would not
have a right to take the plea under Section 53-A of the TP Act, whenever steps
are initiated for recovery of possession against him, either by the original
owner or any person claiming through him. It becomes highly doubtful whether
the adjudication on the touchstone of Section 53-A of the TP Act can be
undertaken in an application filed under Rule - 97 or 99 of Order-XXI CPC.
Though from the point of view of the decree holder, it may be the controversy
pertaining to execution of the decree, it would be evident that from the point
of view of a third party, his rights are to be adjudicated vis--vis the person
who executed the agreement of sale in his favour or anyone, claiming through
him. The truth or otherwise of the agreement of sale needs to be examined.
10. Identity of the property is another question. Even before the suit for
specific performance was filed, the appellant had initiated steps against the
predecessor of the respondents. That, however, was not taken to the logical
conclusion. In this scenario, the appellant could not have dispossessed the
respondents. The lower appellate Court has taken the correct view of the matter
and allowed the application.
11. Another aspect of the matter is that in case, the respondents have
dispossessed the appellant from the property, the present set of execution
proceedings cannot be the proper avenue for recovery of possession,
particularly, when he got the title to the property for the first time through a
sale deed executed by the Court itself. It is not as if the appellant is
without any remedy. He has to institute separate proceedings for declaration of
title on the strength of the sale deed and for recovery of possession.
11. Hence, the Second Appeal is dismissed, however, by leaving it open to the
appellant to institute proceedings for recovery of possession from the
respondents in accordance with law through a separate suit. There shall be no
order as to costs.
L. NARASIMHA REDDY, J
December 22, 2011.