Supreme Court clarifies the scope of Order XXI Rule 101 of the Code of Civil Procedure in property possession disputes: Shamsher Singh & Anr. vs. Lt. Col. Nahar Singh (D) Thr. Lrs. & Ors. (29 July 2019)

Date of the Judgment: 29 July 2019
Citation: Shamsher Singh & Anr. vs. Lt. Col. Nahar Singh (D) Thr. Lrs. & Ors. (2019) INSC 740
Judges: Ashok Bhushan, J., Navin Sinha, J.
Can a person who was dispossessed from a property during the execution of a court decree be put back in possession simply by proving prior possession, or must they also prove their right, title, or interest in the property? The Supreme Court of India addressed this question in a recent case, clarifying the scope of Order XXI Rule 101 of the Code of Civil Procedure (CPC). The Court held that merely proving prior possession is insufficient; the applicant must also demonstrate a right, title, or interest in the property to be restored to possession. This judgment was delivered by a two-judge bench comprising Justice Ashok Bhushan and Justice Navin Sinha.

Case Background

The dispute revolves around a property located at 15, Sahanagar Road, Calcutta, originally owned by Tarapada Dutta. Anadi Dutt, claiming to be Tarapada’s son, entered into agreements to sell the property to Rajvindar Singh and Shamsher Singh. However, the respondent, Lt. Col. Nahar Singh, claimed possessory rights over the property through adverse possession, stating that his father, Iqbal Singh, had occupied the premises and after his death, he had continued the occupation.

Rajvindar Singh and Shamsher Singh filed separate suits for specific performance against Anadi Dutt, which were decreed ex-parte. Subsequently, they obtained possession of the property through court execution. Lt. Col. Nahar Singh then filed applications under Order XXI Rules 98, 99, and 100 of the CPC, seeking to be restored to possession, claiming that he was illegally dispossessed.

Timeline:

Course of Proceedings

The Executing Court initially rejected Lt. Col. Nahar Singh’s applications, holding that he failed to prove his title by adverse possession. The Calcutta High Court, however, reversed this decision, stating that the question of whether Lt. Col. Nahar Singh had obtained title by adverse possession was not relevant. The High Court ordered that Lt. Col. Nahar Singh be put back into possession, emphasizing his prior possession before dispossession. This decision was then appealed to the Supreme Court.

Legal Framework

The core legal issue revolves around the interpretation of Order XXI Rules 98, 99, 100, and 101 of the CPC, particularly after the 1976 amendment.

Order XXI Rule 99 of the CPC states:
(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for 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.

Order XXI Rule 100 of the CPC states:
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.

Order XXI Rule 101 of the CPC, as amended in 1976, is crucial. It states:
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.

Before the 1976 amendment, Rule 101 focused on restoring possession to a “bona fide claimant.” However, the amended rule mandates that the court must determine all questions, including those related to “right, title, or interest” in the property. This amendment aimed to prevent prolonged litigation by resolving all related issues within the execution proceedings itself.

The Supreme Court emphasized that the 1976 amendment significantly altered the scope of Rule 101. The court noted that prior to the amendment, a person could be restored to possession simply by proving they were a bona fide claimant in possession. However, post-amendment, the applicant must establish their right, title, or interest in the property, not just prior possession.

Arguments

Appellant (Shamsher Singh & Anr.) Arguments:

• The Executing Court was correct in rejecting Lt. Col. Nahar Singh’s application because he failed to prove his title over the suit premises.
• The appellants were rightfully put in possession of the property through a court decree.
• The High Court erred in not considering whether Lt. Col. Nahar Singh had obtained any title to the property by way of adverse possession.
• The decree passed in favor of the appellants was never challenged by anyone, including Lt. Col. Nahar Singh or Asis Kumar Dutt (whom Lt. Col. Nahar Singh claimed was the true son of Tarapada Dutta).
• Lt. Col. Nahar Singh, having failed to prove his title, was not entitled to be put back in possession.

Respondent (Lt. Col. Nahar Singh) Arguments:

• Lt. Col. Nahar Singh was in long possession of the premises and had acquired possessory title.
• He had filed several documents before the Executing Court to prove his possession.
• It was not necessary for him to establish his title to the land for the purposes of Order XXI Rules 98, 99, and 100 of the CPC.
• Proving prior possession was sufficient to be put back into possession.
• The appellants had obtained a fraudulent decree against Anadi Dutt, who was not the true son of Tarapada Dutta.
• Lt. Col. Nahar Singh was dispossessed based on a fraudulent ex-parte decree.

Innovativeness of the Argument:

The respondent’s argument that prior possession alone is sufficient for restoration under Order XXI Rules 98, 99, and 100 of the CPC is a common legal tactic, but it was not innovative in light of the 1976 amendment which requires proof of right, title, or interest. The appellant’s argument that the respondent failed to prove his title and that the High Court erred in not considering this aspect was more aligned with the amended provisions of the CPC.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue addressed by the court was:

• Whether an applicant under Order XXI Rules 98, 99, and 100 of the CPC can be put back into possession of a property merely by proving prior possession, or whether they must also establish a right, title, or interest in the property.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court relied on the following cases and legal provisions to reach its decision:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Shreenath and Another Vs. Rajesh and Others, (1998) 4 SCC 543*: The Court relied on this case to highlight the legislative intent behind the 1976 amendment to the CPC, which was to consolidate all disputes related to the property within the execution proceedings.
• Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Another, (1998) 3 SCC 723*: This case was used to emphasize that all types of resistance or obstruction to the delivery of possession are to be dealt with under Order XXI Rule 97 and that third parties resisting the decree fall within the ambit of Rule 101.
• Ghasi Ram and Others Vs. Chait Ram Saini and Others, (1998) 6 SCC 200*: This case was cited to support the view that all disputes related to right, title, or interest in the property must be adjudicated in the execution proceedings.
• Ashan Devi and Another Vs. Phulwasi Devi and Others, (2003) 12 SCC 219*: The Court used this case to underscore that the 1976 amendment aimed to enable third parties to seek adjudication of their rights in execution proceedings, curtailing prolonged litigation.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the legislative intent behind the 1976 amendment to the Code of Civil Procedure. The court emphasized that the amendment was designed to ensure that all disputes related to the right, title, or interest in a property are resolved within the execution proceedings itself, rather than through separate suits. This was done to prevent prolonged litigation and to ensure that the execution of decrees is not unduly delayed.

The Court also noted that the High Court had erred in not considering the question of whether the respondent had obtained any title to the property by way of adverse possession. The Supreme Court emphasized that the respondent was required to establish his right, title, or interest in the property to be put back into possession. The Court observed that the respondent had failed to prove his title by adverse possession, and his suit for declaration of title was subsequently dismissed.

The Court’s reasoning was also influenced by the fact that the decree passed in favor of the appellants was never challenged by anyone, including the respondent or Asis Kumar Dutt, who was claimed by the respondent to be the true son of Tarapada Dutta. This indicated that the appellants had a valid decree and were entitled to possession of the property.

Logical Reasoning:

The Supreme Court rejected the argument that mere prior possession is sufficient for restoration of possession. The Court emphasized the need to establish a right, title, or interest in the property, which is in line with the amended provisions of the CPC. The Court also considered the fact that the respondent’s suit for declaration of title was dismissed, which further weakened his claim for restoration of possession.

The Court’s decision was based on a careful analysis of the amended provisions of the CPC, as well as the judgments of previous cases that had interpreted these provisions. The Court’s decision was also influenced by the need to prevent prolonged litigation and to ensure that the execution of decrees is not unduly delayed.

The Supreme Court held that the High Court had erred in setting aside the order of the Executing Court. The Supreme Court restored the order of the Executing Court, which had rejected the respondent’s application for restoration of possession. The Supreme Court observed that the respondent had failed to prove his title by adverse possession, and his suit for declaration of title was subsequently dismissed.

The Court quoted the following from the judgment:

“There is a marked difference between Rule 101 as it existed prior to amendment and as it now exists after 1976 amendment. Earlier a person who was a bona fide claimant and who satisfied that he was in possession of the property on his own account or on account of some other person then the judgment-debtor could have been put in possession of the property on an application under Rules 100 and 101, whereas now after the amendment for putting back into possession an applicant has not only to prove that he is in bona fide possession rather he has to prove his right, title or interest in the property.”

“The respondent-applicant had to prove his right, title or interest in the property to be put back in possession.”

“High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed.”

There were no minority opinions in this case, as both judges concurred.

Key Takeaways

• Proof of Title Required: An applicant seeking restoration of possession under Order XXI Rules 98, 99, and 100 of the CPC must prove their right, title, or interest in the property, not just prior possession.
• 1976 Amendment Significance: The 1976 amendment to the CPC mandates that all questions, including those related to title, must be adjudicated in execution proceedings, preventing the need for separate suits.
• Finality of Execution Proceedings: The decision in execution proceedings is conclusive and has the same force as a decree, subject to appeal.
• Impact on Property Disputes: This judgment clarifies that mere possession is not enough to claim restoration of property; a legal right or title must be established.

Directions

The Supreme Court did not give any specific directions in this case, other than to set aside the judgment of the High Court and restore the order of the Executing Court.

Development of Law

The ratio decidendi of this case is that under Order XXI Rules 98, 99, and 100 of the Code of Civil Procedure, an applicant seeking restoration of possession must prove their right, title, or interest in the property, not just prior possession. This judgment reinforces the changes brought about by the 1976 amendment to the CPC, which aimed to resolve all property-related disputes within the execution proceedings itself. This clarifies the position of law that mere prior possession is insufficient for restoration of possession, and a legal right or title must be established.

Conclusion

The Supreme Court’s judgment in Shamsher Singh & Anr. vs. Lt. Col. Nahar Singh (D) Thr. Lrs. & Ors. clarifies the scope of Order XXI Rule 101 of the Code of Civil Procedure. The Court held that a person dispossessed during the execution of a court decree cannot be put back into possession simply by proving prior possession. Instead, they must also demonstrate a right, title, or interest in the property. This decision reinforces the legislative intent behind the 1976 amendment to the CPC, which aimed to resolve all property-related disputes within the execution proceedings itself and prevent prolonged litigation through separate suits. The Supreme Court set aside the High Court’s judgment and restored the Executing Court’s order rejecting the respondent’s application.