Girraj and Others vs Ram Prasad and Others

V.K. Shukla, J.—Present Second Appeal has been filed against the judgment and decree dated 20.03.1990 passed by IIIrd Additional Civil Judge, Mathura in Civil Appeal No. 146 of 1980, affirming the judgment and decree dated 25.07.1990 passed by Additional Munsif, Mathura in Original Suit No. 308 of 1978, Ram Prasad and Ors. v. Girraj and Ors.

Brief background of the case is that the plaintiffs instituted Original Suit No. 308 of 1978 contending therein that they were owner of the property detailed at the foot of the plaint. The said property in question is situated in Khasra No. 188 and in the revenue record in 1258 Fasli, names of Jai Singh, Duli Chand and Smt. Batto have been recorded and the plaintiffs are their nearest surviving relatives, and as such they are owner of the same, and further in the background of litigation of case No. 88 of 1963, wherein decree had been passed declaring ownership of property in question, and thereafter, it was mentioned that illegally possession had been taken over, hence the suit for ejectment and damages. Said suit was contested by filing written statement and the plea taken therein was that the plaintiffs had no concern with the property in dispute, and since the time of their ancestors, the defendants are owner in possession. Further in earlier proceedings in case No. 88 of 1963, since the defendants were not parties, the decree, if any, was nullity, and as such decree of ejectment could not have been passed along with the damages. Before the trial court, on the basis of pleadings, in all 9 issues were framed. From the side of the plaintiffs, documentary evidence was filed and Rameshwar, Ram Rahi and Mishri Lal, Advocate were examined as P.W. 1, P.W.-2 and P.W.-3, respectively. From the side of the defendants also, documentary evidence was filed and Shyam Charan was examined as D.W. 1. The other witnesses examined from the side of the defendants were Natthi Lal, Ram Hari, Gopal Prasad and Bhagwat Swaroop Saxena as D.W.2, D.W.-3 and D.W.-4, respectively. The trial court on over all assessment of evidence on record decreed the suit on 25.07.1990. Aggrieved against the same civil appeal had been filed, and the same was also dismissed. At the said juncture, present second appeal was filed.

Sri G.N. Verma, Senior Advocate, contended with vehemence that in the present case both the courts below have erred in law in holding that the judgment and decree passed in suit No. 88 of 1963 operates as res judicata, whereas judgment of said suit could not have operated as res judicata as the attachment under Order 38 Rule 5 C.P.C. had been withdrawn, and as such title of the parties could not have been decided and by placing reliance on the judgment and decree in suit No. 88 of 1963, perverse and unsustainable orders have been passed ignoring the fact that appellants were not party in said proceedings, as such the judgment and decree of both the courts below are liable to be set aside.

Countering the said submission, Sri M.K. Nigam, Advocate, representing the respondents, on the other hand, contended that in the present case, the judgment and decree passed by both the courts below are based on rightful consideration and on over all assessment of evidence on record, there is no substantial question of law involved in the case, the present second appeal is concluded by pure finding of fact, as such the judgment and decree passed by the courts below are liable to be confirmed.

After respective arguments have been advanced, factual position which emerges in the present case is that original suit No. 308 of 1978 had been filed by the plaintiffs by clearly contending therein that in respect of property in dispute original suit No. 88 of 1963 had been decided, wherein suit property in question was accepted as property of the plaintiffs and on the said property the defendants had illegally taken forcible possession on 05.08.1978 and had put thrashed roof over the said property and were tying their cattle over the same. When they were asked to remove the same then they denied, claiming that it was their property.

In the background of the case, the facts of original suit No. 88 of 1963 are also being looked into. In the said case, Ram Krishna and others had filed suit No. 474 of 1961 against the defendants of suit No. 88 of 1963 and in the said suit, property of present suit and certain other properties were attached. Ram Swaroop and others moved an application in the said proceeding, contending therein that attachment had been illegally carried out. Said application was dismissed summarily. After the said application was dismissed, another application under Order 21 Rule 63 C.P.C. was filed, wherein declaration was sought that the suit property was their ancestral property and they had been in possession thereof. In the said suit genealogical table was given. Said suit was dismissed. Appeal against the same was also dismissed. Before this Court Second Appeal No. 1597 of 1967 was filed and this Court on 29.07.1976 allowed the appeal and passed order directing the parties to adduce further evidence and the evidence already recorded in the case were directed to remain continue as evidence in the case and suit was directed to be decided accordingly. Thereafter on 14.02.1977, Munsif Mathura passed order and categorical finding of fact was recorded that qua the property pedigree which was given therein was correct pedigree and the property involved in suit No. 88 of 1963, the defendants were not at all owner in possession of the same. After the said judgment and decree had been passed, an application was moved under Order 9 Rule 13 C.P.C. for setting aside exparte decree. Said application was dismissed on 10.08.1977. Against the said order, appeal No. 150 of 1977 was preferred and the said appeal was also dismissed on 23.12.1977. Said order has attained finality.

It has been sought to be pointed out in the present case that the said judgment cannot be treated as res judicata, specially when the defendants were not at all party to the said proceeding. Undisputed position is that in suit No. 88 of 1963, predecessors of the defendants were parties and the defendants have acquired their right through them and not in any independent capacity. Section 11 C.P.C. prohibits decision on issue, which has been subject matter in former suit, in between parties, who are claiming and litigating under the same title. The judgment which has been passed on 14.12.1977 has attained finality, wherein adjudication had been in respect of ownership of property in question. Under Order 21 Rule 63 C.P.C. where a claim/objection is preferred under Order 21 Rule 58 C.P.C., the party against whom an order is made may institute suit to establish the right which he claims to the property, but subject to the result of such suit, if any, the order shall be conclusive. Order 21 Rule 58 deals with the matter where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment. The court is entitled to investigate the claim or objection. The investigation to be made under Order 21 Rule 58 is of summary nature and thereafter any one against whom an order is made, has right to institute suit to establish his right under Order 21 Rule 63 C.P.C.

At this juncture the decision cited by appellants is being looked into. This Court in the case of Bhore Akhey Ram v. Basant Lal and Ors. AIR 1924 All. 860, has taken the view that unde Order 38 Rule 5 C.P.C. the mode of attachment before judgment has to be the same as that for the attached in execution of a decree, but that rule does not refer to the way in which attachment comes to an end and Order 21 Rule 57 does not apply to the attachment.

In the case of Nawab Syed Mahammad Hashim Ali Khan and Another Vs. Iffat Ara Hamidi Begum and Others, view has been taken by Calcutta High Court that the provisions of Order 21 Rule 58 and Order 21 Rule 63 is a reasonable adjustment of two principles. The first is that a judgment creditor should have the fruits of his decree as quickly as possible; and the other principle is that a third party should not be allowed to be harassed by the decree-holders'' attempt to take in execution his property. The adjustment is made by allowing third party to intervene in the execution proceedings as a claimant but the first principle which keeps in view the interest of decree holder requires that the claim proceedings should not be prolonged.

In the case of Gopal Purshottam v. Baidivali I.D. Vol. 9 1892-93 Bombay page 242, view has been taken that where attachment is withdrawn, parties are restored to the status-quo ante, and reason was that when attachment was removed, there was no longer attachment or any other proceedings in execution on which the order could operate to the prejudice of the claimant and therefore, no necessity for bringing a suit to set aside the order.

In the case of Ramnagina Sah and Others Vs. Harihar Sah and Others, view has been taken that where decree has been satisfied, execution has been struck off, then in such circumstances suit under Order 21 Rule 63 was held not necessary and suit for partition was held not barred.

Based on these judgments suggestion has been made that decree had been satisfied, as such suit itself had rendered itself as infructuous.

In the present case factual position is that order under Order 21 Rule 58 C.P.C. order has been passed, and thereafter application under Order 21 "Rule 63 had been filed and the said proceedings under Order 21 Rule 63 C.P.C. were as good as original proceeding like regular suit u/s 9 of the Code of Civil Procedure, which the plaintiff continued to pursue and ultimately, the same was brought to its logical end. In the said proceeding unlike regular suit issues had been framed, evidence was led, issues were decided and the decree was passed. Hon''ble Apex Court in the case of Sawai Singhai Nirmal Chand Vs. Union of India, , has taken the view that under order 21 Rule 63 C.P.C. suit is not only confined to possession but also of title an scope of said suit is different than the scope of Order 21 Rule 58 C.P.C.. Same is like regular suit, and even notice u/s 80 is required. Even after attachment has been withdrawn or decree has been satisfied, proceedings under Order 21 Rule 63 C.P.C. will not ipso facto render itself as infructuous, and as the nature of the proceeding is like regular suit, wherein question of title is involved, the plaintiff can always insist for getting his rights declared, so that there remains no confusion on the spot. Even otherwise, there is nothing on record to show that money was and decree was ever set aside. Once proceeding under Order 21 Rule 63 is at par with the proceedings of regular suit, then in that background when predecessors of the defendants were parties to the proceeding, then issue of title in subsequent proceedings has rightly been accepted as res judicata, as in the earlier suit, categorical finding of fact had been returned that qua ownership of the plaintiff''s predecessor and qua the defendants'' predecessor not being owner. Both the courts below have rightly relied upon the said decree.

Not only this, in the present case merit of the matter has also been seen qua the ownership and it has been found that in Khasra of 1258 Fasli names of the predecessor of the plaintiffs was there in respect of the property in question, whereas in respect of defendants there was nothing on record to show their title. Identity of property has also been accepted. The defendants have gone even to the extent of claiming adverse possession. Said theory had been considered in extenso and has not found favour. Both the courts below have rightly, on the basis of assessment of evidence on record, have found that the plaintiffs were owner of the property in question and the defendants have illegally encroached upon the same. Suit has been rightly decreed.

Once suit in question has been decreed on factual assessment of the evidence, then it can not be said that in the present case any substantial question of law arises for consideration of this Court. Hon''ble Apex Court in the case of P. Chandrasekharan and Others Vs. S. Kanakarajan and Others, and Ors. and Kashmir Singh v. Harnam Singh and Anr. 2008 (3) AWC 2323(SC) has clearly ruled that when in the fact of case substantial question of law arises, then only interference at the level of High Court is feasible. Here no substantial question of law has arisen, as courts below have not ignored material evidence nor have accepted any in admissible evidence nor have drawn any wrong inferences by placing wrong burden. The decision is based on appreciation of evidence and taking as whole, the view which has been taken, being supported by oral as well as documentary evidence, as such no substantial question of law arises.

Consequently, present Second Appeal is dismissed.