Jammu & Kashmir High Court
Peer Rattan Nath Mahant Sh. Shiv Ji … vs Wazir Onkar Singh S/O Late Wazir Mansa … on 28 February, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
IN THE HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT JAMMU
.......
CFA No. 24/2012.
Reserved on 31.12.2024
Pronounced on 28.02.2025.
1. Peer Rattan Nath Mahant Sh. Shiv ji Maharaj Peer kho, Jammu.
2. Sh. Banari Lal Sharma S/O Pt. Behari Lal Sharma R/O Patel Nagar,
Akhnoor Road, Jammu.
....... Appellant(s)/Petitioner(s)
Through: Mr. D. R. Khajuria,Advocate.
Mr. Vikas Mangotra, Advocate.
Anuj Dewan Raina, Advocate.
Versus
1. Wazir Onkar Singh S/o Late Wazir Mansa Ram;
2. Wazir Sukh Dev Singh (Insane) S/o Wazir Mansa Ram;
3. (a) Chaitanya Choudhary @ Chaitanya Mahajan S/O Late Vinay
Kumar Choudhary, R/O K. C Mansion, Shakti Nagar, Jammu.
3(b) Vishal Choudhary @ Vishal Mahajan S/O Late Vinay Kumar
Choudhary R/O K. C Mansion, Shakti Nagar, Jammu;
3(c) Smt. Saroj Mahajan Wd/O Late Vinay Kumar Choudhary
R/o K. C Mansion, Shakti Nagar, Jammu;
4. State of J&K Th. Commissioner Secretary, Home Department,
Srinagar;
......Respondent(s)
Through: Mr. O. P. Thakur, Sr. Advocate with
Mr. R. K.S. Thakur, Advocate.
CORAM: HON'BLE MR. JUSTICE.JAVED IQBAL WANI, JUDGE
JUDGMENT
28.02.2025.
1. The instant 1stAppeal arises from the judgment and decree dated
07.06.2012, passed by the court of 1 st Additional District Judge, Jammu
(hereinafter for short “the trail court”) in Civil Original Suit No. 11/40 titled
as “Peer Rattan Nath and Another v. Wazir Onkar Nath“, whereby the suit
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CFA No. 24/2012
filed by the plaintiffs/appellants herein has been dismissed on the ground of
it being not maintainable.
2. In the suit supra, the plaintiffs/appellants herein had sought a decree of
declaration, declaring that the decree dated 26.04.1979, passed by this Court
in civil suit No. 01 of 1961 titled as “Smt. Parvati v. Wazir Beli Ramand
others” as null and void to the extent it includes the land measuring 06
Kanals and 04 marlas, falling under Khasra No. 02, Khewat No. 102 and
Khata No. 301, (hereinafter for short “the land in question”) owned and
possessed by the plaintiffs/appellants herein, besides also having sought a
declaration that the sale deed executed by Wazir Mansa Ram-father of
defendants/respondents 1 & 2 herein through his attorney in favour of
defendant/respondent 3 herein and registered by the Sub-Registrar (North)
Jammu, on 02.06.2001, along with mutation No. 2762 dated 02.01.2003, be
also declared null and void, inoperative to the extent it affects the rights of
the plaintiffs/appellants herein over the land in question. A consequential
decree and injunction had also been sought by the plaintiffs/appellants in
the suit.
3. Facts emerging from the pleadings of the parties and the material on record
are detailed out in brief as under:-
(I) A suit for partition of immoveable properties owned by one Wazir
family was instituted by one Smt. Parvati Wd/O Wazir Mehar
Singh on 26.08.1961, before this Court against “Wazir Beli Ram
and others” which suit came to be registered as Civil Original
Suit No. 01/1961. Smit Parvati in the suit claimed entitlement of
1/5th share in the total property. A preliminary decree was passed
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CFA No. 24/2012in the said suit on 19.03.1964, and a Commission was issued for
effecting partition by metes and bounds to the extent of plaintiff-
Smt. Parvati’s share in the suit property, reflected in annexure-A
thereto, detailed out in the preliminary decree.
(II) The Commissioners proceeded to the site, executed the mandate
and submitted their report/plan on 14.03.1972, in which report
they noted that a parcel of land measuring 06 Kanals 04 marlas,
covered under Khasra No. 02, in estate Nowabad, though forming
part of the joint property had not been included in the suit
property, as such, made its recommendation for its inclusion in the
partition proceedings.’
(III) Upon submission of the report by the Commissioners, the
plaintiff-Smt. Parvati filed an application before this Court
seeking passing of the final decree and after considering the
submissions of counsel for the parties, this Court on 26.04.1974,
passed a final decree, directing the separation of plaintiff’s 1/5 th
share through partition of the property mentioned in annexure-A
of the final decree and the plaintiff-Smt. Parvati was held entitled
to 81 Kanals, 04 marlas of land as per partition plan which
included the aforesaid 06 Kanals and 04 marlas of land covered
under Khasra No. 02 in estate Nowabad.’
(IV) ‘An appeal/LPA was preferred against the said judgment and
decree passed by this Court on 26.04.1974, which however, came
to be dismissed on 02.05.1975’.
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CFA No. 24/2012
(V) Wazir Mansa Ram who had been substituted as plaintiff upon the
demise of original plaintiff-Smt. Parvati vide order dated
20.11.1969, filed an application seeking execution of decree dated
26.04.1974, before this Court which came to be transferred to the
court of District Judge, Jammu, followed by further transfer to the
court of Additional District Judge, Jammu for disposal under law’.
‘The judgment debtors named therein, in the said decree dated
26.04.1974, were put on notice who after entering appearance
filed objections thereto and the Executing court consequently
after hearing both the sides and after noticing the chronology of
events which took place, ruled over multiple objections raised by
the judgment debtors and ordered issuance of a fresh warrant on
14.06.1976, for the delivery of possession of various properties in
terms of judgment and decree under execution dated 26.04.1974,
which warrant was finally executed on 18.06.1974, by following
requisite procedure including beating of drums and symbolic
possession of the property in question to the decree holder which
being in possession of Interrogation Centre, Jammu came to be
handed over to the decree holder’.
(VI) Pursuant to the final decree dated 26.04.1974, Tehsildar Jammu in
furtherance thereof attested mutation No. 1418 dated 30.09.1997,
with respect to the land in question in favour of Wazir Mansa
Ram’.
(VII) ‘Subsequently, one Om Prakash Dalmotra, claiming to be the
lessee of ManirShiv ji Maharaj Peer kho, Jammu in respect of
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CFA No. 24/2012
land in question challenged the aforesaid mutation No. 1418
before the Director Land Records, Jammu who exercised the
powers of the Settlement Officer and the said challenge
succeeded and in terms of order dated 21.10.2004, the mutation in
question was modified, deleting the land in question there from.
(VIII) ‘Meanwhile, prior to the passing of the said order by the
Settlement Officer dated 21.10.2004, Wazir Mansa Ram had sold
the land in question by way of a sale deed dated 01.06.2001, in
favour of the original respondent 3 herein, pursuant to which
mutation No. 2762 had been attested on 01.01.2003 which
mutation No. 2762 also came to be challenged in an appeal before
the Director Land Records, Jammu which appeal as well came to
be allowed vide order dated 08.01.2005, setting aside the same on
the ground that the land in question was neither included in the
schedule of joint property in the suit filed by Smt. Parvati, nor was
it incorporated in the preliminary decree-annexure to the final
decree and was not, as such, subject to partition’.
(IX) ‘The aforesaid order dated 08.01.2005, was assailed by the
respondents 1-3 herein before the Settlement Commissioner,
Jammu in an appeal which however, was dismissed vide order
dated 11.10.2005, whereupon a Revision Petition came to be
preferred before the Financial Commissioner, Jammu against the
order of Settlement Commissioner which too met with the same
fateand came to be dismissed vide order dated 06.10.2006’.
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CFA No. 24/2012
(X) ‘Aggrieved by the said order/s, the respondents 1-3 herein
challenged the same before this Court in OWP No.909/2006, and
after hearing the parties, this Court dismissed the said petition on
25.03.2011, which came to be assailed by the respondent 3 in
Latter’s Patent Appeal (LPA), bearing No. 129/2001, in which the
LPA Bench while passing order dated 01.02.2012, made the
following observations:-
(i) “Having heard learned counsels for
the appellants as well as the respondents
and having regard to the fact that a civil
suit titled Peer Rattan Nath &Ors. v.
Wazir Onkar Singh &Ors. preferred by
the contesting private respondents is
pending on the files of learned 1st
Additional District Judge, Jammu, where
the issues raised therein have to be
thrashed out, we only direct the parties to
work out their remedy in the said suit in
order to get a lasting solution.
(ii) We only direct the concerned court,
before whom the civil suit is pending to
expedite the hearing of the suit and in any
event dispose of the same within six
months from the date of production of
copy of this order. We make it clear that
the concerned civil Court will be at liberty
to dispose of the suit on its own merits
uninfluenced by whatever stated by the
learned Single Judge in the order
impugned in this appeal dated 25.02.2011
passed in OWP No. 909/2006 as well as
the orders which were impugned in the
writ petition. Registrar Judicial to take
note of it.
(iii) This appeal shall be taken up for
hearing after disposal of the aforesaid
titled suit”.
(XI) ‘During the pendency of the aforesaid writ petition (OWP
No. 909/2006) filed by respondents 1-3 herein, Peer Rattan
Nath and another. v. Wazir Onkar Singh and others, suit
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CFA No. 24/2012
was instituted by the plaintiffs/appellants before the trial
court in April, 2008, wherein besides some of the aforesaid
facts, it came to be pleaded that Mandir Shivji Maharaj
Peer Kho, Jammu, a religious institution owns and
possesses various properties across the State of Jammu and
Kashmir, including the land in question measuring 06
Kanlas and 04 marlas, covered under Khasra No. 02
Khewat No. 102 and Khata N.301, situated at Nowabad,
Akhnoor road, Jammu under possession of the joint
Interrogation Centre of the Home Department since 1965
and that the ownership of the said land stood vested in the
plaintiff/appellant 1 herein through mutation No. 401 dated
16.05.1958, where-after the said land stands leased out by
the plaintiff/appellant 1 to one Om Prakash Dalmotra S/O
Shri Beli Ram vide lease deed dated 01.07.1985, executed
by Mahant Peer Shivnathji and subsequently, said Om
Prakash Dalmotra sub-leased the land in question to
plaintiff/appellant 2 herein through lease deed dated
25.10.2004, registered before Sub-Registrar, Jammu on
08.11.2004, contending further in the said suit that the suit
instituted by Smt. Parvati for partition for her 1/5th share in
the immoveable properties of Wazir family before this
Court, a preliminary decree was passed and the
Commissioners was appointed to formulate a partition plan,
however, the said Commissioners in derogation of their
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CFA No. 24/2012
mandate inadvertently and fraudulently included the land
in question measuring 06 Kanals and 04 marlas covered
under Survey No. 02 in their report/partition plan submitted
before this Court, even though said land was never part of
the said property while asserting further in the suit that the
decree obtained in the suit by Smt. Parvati was not
implemented and was not binding upon them as the Khasra
No. 2 had never formed part of the properties owned by the
Wazir family or by Smt. Parvati. The plaintiffs/appellants
herein in the suit further more refuted the claim of the
defendants/respondents herein that there had been any
exchange of land in question with land falling under Khasra
No. 391.
‘On the strength of the aforesaid facts pleaded in the
suit, the plaintiffs/appellants herein claimed rightful
ownership over the land in question and asserted their
entitlement to recover possession thereof from the joint
Interrogation Centre, Jammu’.
(XII) ‘The defendants/respondents herein filed their written
statement to the suit supra wherein they have categorically
controverted the averments made in the plaint inter-aliaon
the ground that the suit was neither maintainable in the
present form nor was the trial court vested with the
jurisdiction to entertain the same or grant the reliefs prayed
therein, while pleading further that the decree passed by this
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CFA No. 24/2012
Court in the suit filed by Smt. Parvati had been upheld by
the Division Bench in an appeal which was preferred by the
defendants in the earlier suit and consequently, the
allegations of fraud purported by the Commissioners and
this Court were untenable and without any legal basis. It
came to be additionally pleaded by the
defendants/respondents herein that the predecessor in
interest of defendants/respondents 1 &2 herein and Mandir
Peer Kho had exchanged their respective lands on or before
1912-1913, Bikrimi and land falling under Khasra No. 391
min was originally the proprietary land of the predecessors
in interest of defendants/respondents herein which was
exchanged with the land in question measuring 06 Kanals
and 04 marlas, falling under Survey No. 02, belonging to
the Temple and, as a result of this exchange, the Wazir
family, of which Smt. Parvati was a member became the
absolute owner of the same and subsequently, came to be
provided to Smt. Parvati in accordance with the partition
plan, prepared by the Commissioners and that the said land
was duly incorporated in the final decree after its
endorsement and acceptance by this Court’.
‘It came to be lastly pleaded by the
defendants/respondents 1 & 2 herein in the written
statement that the reliefs sought by the plaintiffs/appellants
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CFA No. 24/2012
herein were not available through the institution of the suit
and, as such, the suit is liable to be dismissed’.
(XIII) Based on the aforesaid pleadings of the parties, the trial
court framed as many as nine issues, one of which was
subsequently deleted and two issues were re-casted and
following were finally issues framed for trail by the trial
court:-
1. Whether the suit in the present form is not
maintainable? (OPD)
2. Whether the suit is within time? (OPD)
3. Whether Court has no jurisdiction to try the
present suit?(OPD)
4. Whether the plaintiff No. 1 is the owner of land
measuring 6 Kanals 04 marlas comprising
Khasra No. 02, Khewat No. 102 and Khata No.
301 situated at Nowabad, Akhnoor Road, Jammu?
(OPP)
5. Whether the suit land was given by the plaintiff
No. 1 to Wazirs in exchange of Khasra No. 391
min, if so what is its effect on the suit? (OPD)
6. Whether the decree dated 26.04.1974 passed by
the Hon’ble High Court in Civil Suit No. 1 of
1961 titled Mst. Parvati Vs. Wazir Bali Ram and
others is nullity to the extent it direct partition of
land measuring 6 Kanals 04 marlas comprising
Khasra No. 2 Khewat No. 102 and Khata No. 301
situated at Nowabad, Jammu as it neither form
part of suit property mentioned in annexure-A
with the plaint nor it forms the part of the
preliminary decree?(OPP)
7. In case Issue No. 4 and 6 are decided in
affirmative whether sale deed dated 01.06.2001
executed by late Wazir Mansa Ram father of
defendant No. 1 and 2 through his attorney
registered on 02.06.2001 in favour of defendant
No. 3 with respect to land measuring 6 Kanals 04
marlas comprising Khasra No. 2 Nowabad is
valid?(OPD)
8. Relief?(OPP).
(XIV) The trial court vide order dated 22-09-2009 treated
issues 1 to 3 as preliminary issues, however, vide order
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CFA No. 24/2012
dated 18-03-2012 on the admission of the counsel for
the parties that issue no. 2 relating to the limitation was
a mixed question of fact and law and could not be
decided without evidence, the said issue no. 2 was
dropped from the said preliminary issues and
consequently the counsel for the parties came to be
directed to advance arguments on issues 1 and 3 alone
and after hearing the counsel for the parties on said
issues 1 and 3, the trial court dismissed this suit in terms
of the impugned judgment and decree dated 07-6-2012
on the grounds that the plaintiffs appellants herein had a
remedy before the forum envisaged under Rules 99,
100, 101, and 103 of Order 2 of the Code of Civil
Procedure and not by a separate suit.
4. The plaintiffs appellants herein have questioned the impugned
judgment and decree in the instant appeal on multiple grounds,
primarily on the grounds that the land in question was never
owned by the Wazir family, but was in fact owned by the temple
Peer Kho and was in its possession till 1965 when it was taken
over by the police department and that the plaintiffs appellants
were neither a party to the suit filed by Smt. Parvati nor were
they ever dispossessed from the land in question, as such, there
was no occasion for the plaintiffs appellants herein to file a claim
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CFA No. 24/2012
under Order 21, Rule 99 of the Code and that assuming the
warrant of possession was executed in 1976 by following the
requisite procedure, including beating of drums and handing
over of the symbolic possession of the land in question to the
decree holder, the Rules 97 to 103 of Order 21 of the Code were
not in existence at that relevant point of time in the Code and as
such, the rules of procedure thus cannot be made applicable
retrospectively, therefore, the remedy under the said rules as held
by the Trial Court was not available.
Heard learned counsel for the parties and peruses the record.
5. Before adverting to the case set up by the appellants herein in
the instant appeal, a reference to the following provisions of
Rules 35, 36, 99, 100, 101 and 103 of Order 21 of the Code
would become imperative:
35. Decree for immovable property.
(1) Where a decree is for the delivery of any immovable property,
possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on
his behalf, and, if necessary, by removing any person bound by the
decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property,
such possession shall be delivered by affixing a copy of the warrant in
some conspicuous place on the property and proclaiming the beat of
drum, or other customary mode, at some convenient place, the
substance of the decree.
(3) Where possession of any building on 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
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CFA No. 24/2012any lock or bolt or break open any door or do any other act necessary
for putting the decree-holder in possession.
36. Decree for delivery of immovable property when in occupancy of
tenant.–Where a decree is for the delivery of any immovable
property in the occupancy of a tenant or other person entitled to
occupy the same and not bound by the decree to relinquish such
occupancy, the Court shall order delivery to be made byaffixing a copy
of the warrant in some conspicuous place on the property, and
proclaiming to the occupant by beat of drum or other customary
mode, at some convenient place, the substance of the decree in
regard to the property.
99. Dispossession by decree-holder or purchaser.–
(1) Where any person other than the judgmentdebtor 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.
100. Order to be passed upon application complaining of
dispossession.–Upon the determination of the questions referred to
in rule 101, the Court shall, in accordance with such determination,–
(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.
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.
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CFA No. 24/2012
103. Orders to be treated as decrees.–Where any application has
been adjudicated upon under rule 98 or rule 100, the order made
thereon shall have the same force and be subject to the same
conditions as to an appeal or otherwise as if it were a decree.]
As is evident from above, under Order 21 Rule 35, supra, an
executing court is empowered to deliver actual physical
possession of the disputed property to the decree holder, and if
the judgment debtor or any other person bound by the decree
refuses to vacate the premises, the court can take necessary
measures including their removal from the property to ensure
compliance of the decree. In essence, this provision ensures that
the decree holder obtains effective and enforceable possession,
preventing any obstruction by the parties obligated to comply
with the decree.
Order 21 Rule 36 supra governs the mode of executing a
decree for possession of immovable property when the property
is occupied by a tenant or any person not bound by the decree
and in such case the court grants symbolic possession of the
property by affixing a copy of the warrant at a prominent
location of the property and publicly announcing the substance
of the decree through customary means, such as, beat of drum
with an aim to ensure that the occupant of the property is duly
notified while the decree holder secures symbolic and
constructive possession.
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Order 21 Rule 99 supra addresses situations where
resistance or obstruction is encountered while exercising decree
for possession of immovable property and such obstruction or
resistance may be caused by the judgment debtor, a person
claiming rights through the judgment debtor, or even an
independent third party including a tenant who was not a party to
the suit and if the decree holder faces such resistance or
obstruction, he can apply to the executing court seeking
possession of the property.
Following the amendment of 1976 carried in Code, Sub-Rule
(2) of Rule 99, empowers the executing court to adjudicate upon
such claims in accordance with the provisions that follow
specifically Order 21 Rule 101 supra mandates that all questions
relating to the right, title, or interest in the disputed property
arising in proceeding under Rule 97 or Rule 99 shall be decided
by the executing court itself rather than through a separate suit.
The aforesaid amendment of 1976, streamlined the process,
ensuring that even objections raised by third parties in the
process of execution of a decree are adjudicated thereby
avoiding multiplicity of litigation.
6. It is significant to note here that the expression “any person”
appearing in Order 21, Rule 97 (1) supra, has been employed to
broaden the scope of executing court’s jurisdiction in
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CFA No. 24/2012adjudicating claims arising from a resistance or obstruction to
the delivery of possession, and by using this inclusive language,
the provision encompasses all individuals opposing execution of
a decree irrespective of whether they are bound by the decree
and includes within its ambit tenants, persons claiming an
independent right over the property or even strangers. Therefore,
the executing court is empowered to examine and determine
such claims within the execution proceedings, eliminating the
need for institution of a separate litigation.
7. Before proceeding further in the matter, a reference to the
unamended aforesaid provisions of Order 21 Rules 97 to 101 and
103 also becomes necessary and are as such reproduced here
under:
“97.(1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property
sold in execution of a decree is resisted or obstructed by
any person in obtaining possession of the property he may
make an application to the Court complaining of such
resistance or obstruction.
(2) The Court shall fix a day for investigating the matter
and shall summon the party against whom the application
is made to appear and answer the same.
98. Where 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, 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 to
be detained in the civil prison for a term which may extend
to thirty days.
99. Where the court is satisfied that the resistance or
obstruction was occasioned by any person (other than the
judgment-debtor) claiming in good faith to be in
possession of the property on his own account or on
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CFA No. 24/2012account of some person other than the judgment-debtor,
the Court shall make an order dismissing the application.
100. (1) Where any person other 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 or where such property has been sold in
execution of a decree, by purchaser thereof, he may make
an application to the Court complaining of such
dispossession.
(2) The Court shall fix a day for investigating the matter
and shall summon the party against whom the application
is made an answer the same.
101. Where the Court is satisfied that the applicant was in
possession of the property on his own account or on
account of some person other than the judgment- debtor,
it shall direct that the applicant be put into possession of
the property.
103. Any party not being a judgment-debtor against whom
an order is made under rule 98, rule 99 and rule 101 may
institute a suit to establish the right which he claims to the
present possession of the property, but, subject to the
result of such suit (if any), the order shall be conclusive.”
It is significant to note here that Order 21 Rule 97 (1) Supra
remains unchanged even after the amendment of 1976 in the
Code. However, post-amendment all disputes relating to
resistance or obstruction to possession under Rules 97 and 99 are
required to be adjudicated by the executing court under Rule 101.
Before the amendment of 1976, Rule 97 (2) provided that when a
person obstructed the decree holder’s possession, the executing
court would issue summons to such a person and conduct an
inquiry under Rule 98 and if the court found that the obstruction
was without just cause, it would restore possession to the decree
holder. Conversely, under Rule 99, if the obstruction was caused
by a person claiming bona fidepossession in his own right, the
decree holder’s application was liable to be dismissed.
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CFA No. 24/2012
8. Therefore, what emanates from above is that prior to
amendment of 1976, a tenant or any person claiming an
independent right in the property though not a party to the suit
was entitled to have their claim adjudicated under Rule 99,
thereby eliminating the necessity of filing a separate suit, however,
after the amendment of 1976, if a tenant or any other person claiming
an independent right in the property, resists the decree holder’s
possession, their objection must be adjudicated under Rule 97
read with Rule 101.
Before the amendment of 1976, such disputes were
determined under Rule 97 read with Rule 99 and under the pre-
amended law, it was only if an adverse order was passed against
such person that they had to file a separate suit under Rule 103 to
establish their right, however, post-amendment of 1976 such
disputes are conclusively to be adjudicated by the court under
Rule 101 without filing a separate suit.
9. Thus, it is manifest that whether under the pre-
amendment or post-amendment law supra, if a tenant or any
other person claiming an independent right resists the execution
of a decree, their objection under Order 21 Rule 97, had to be
adjudicated by the executing court itself.
Further Chapter (V) of the Code of Civil Procedure Amendment
Act of 1976, which deals with the Repeal and saving clause and
reads as under:
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CFA No. 24/2012
“97. Repeal and savings. (1)………
(2)…………
(3) Save as otherwise provided in sub-section (2), the
provision of the principal Act, as amended by this Act,
shall apply to every suit, proceedings, appeal or
application, pending at the commencement of this Act or
instituted or filed after such commencement,
notwithstanding the fact that the right, or cause of action,
in pursuance of which such suit proceeding, appeal or
application is instituted or filed, had been acquired or had
accrued before such commencement.”
10. Having regard to the aforesaid position of law inasmuch as the
facts and circumstances of the case, the only inescapable
conclusion that could be drawn by this Court is that every suit,
proceedings, appeal or application instituted or filed after
commencement of Amendment Act of 1976, supra is governed
by said amended provision notwithstanding the fact that the right
or cause of action in pursuance of which such suit, proceeding,
appeal or application, instituted or filed, had accrued before such
commencement of the Amendment Act of 1976.
11. For what has been observed, consideredand analysed
hereinabove, the Trial Court cannot be said to have faulted while
passing the impugned judgment and decree which seemingly has
been passed rightly and legally, thus not calling for any
interference by this Court.
12. Resultantly the appeal fails and is accordingly dismissed.
13. Registry is directed to draw and frame a decree sheet
accordingly.
(Javed Iqbal Wani)
Judge
Srinagar
28.02.2025.
“Ab. Rashid PS”
Whether the judgment/order is speaking; Yes/No
Whether the judgement/order is reportable; Yes/No
Nissar Ahmad Bhat
I attest to the accuracy and
authenticity of this document
04.03.2025 13:55
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