SUPREME COURT OF INDIA
Mohamed Masthan
Vs
Society, Congregation, Bros., S. Heart and Another
C.A. No. 1617 of 2006
(S. B. Sinha and P. K. Balasubramanyan, JJ)
10.03.2006
S. B. SINHA, J.
1. Leave granted.
2. The properties in question are said to be belonging to the Society of Congregation of the Brothers of the Sacred Heart. Brother Lawrance, who was then Superior General of the First Respondent-Society (Society) transferred 8 acres and 44 cents of land to one Siluvai Rajan by a deed of sale, dated 18.10.1979. According to the Society, the said sale was illegal. After the death of the said purchaser, his wife sold the property to her sister Juliet Mary, Second Respondent herein by a deed of sale dated 23.7.1986.
3. The First Respondent filed a suit against the Second Respondent in the Court
of District Munsif, Tirunelveli which was marked as O.S. No. 1220 of 1987
praying for declaration of title and possession and consequential injunction.
The parties entered into a compromise in terms whereof right, title and
interest of the First Respondent was accepted. A compromise memo was also
filed. The suit of the Society was decreed in terms thereof. A decree was
prepared on the basis, of the said settlement declaring that the suit property
belonged to the plaintiff-Society, and granting permanent injunction
restraining the Second Respondent herein or her agent or, her men from in any
way interfering with the peaceful possession and enjoyment of the Society.
4. After a lapse of about fourteen years from the date of passing the said
decree, the Second Respondent filed a suit against the Society for a
declaration that the aforementioned consent decree passed in O.S. No. 1220 of
1987 was null and void. According to her, she did not appear in the said suit
nor put her signature on the memo of settlement. She was allegedly even not
aware of the institution of the said suit. The said suit admittedly is still
pending.
5. In the meanwhile, the Second Respondent entered into a purported agreement
for sale with the Appellant herein on or about 1.10.2002. The Appellant filed a
suit for specific performance of the contract in the Court of Subordinate
Judge, Tirunelveli being O.S. No. 14Q of 2003. The said suit was decreed on 11.4.2003
and in execution of the said decree, a deed of sale was executed and registered
on 17.6.2003. The Appellant filed an Execution Petition for obtaining
possession on the said lands. The Central Nazir, while purporting to deliver
possession on 19.10.2003, in his report stated:
"Most respectfully submitted, to the Sub-Judge, Tirunelveli by the
petitioner/plaintiff, on 19.10.2003 on the orders of N. Ganesan, Senior bailiff
District Court, Tirunelveli along with the under signed, I visited the schedule
property and it was noticed that on the above schedule property was not in the
possession of the respondent/defendants, I explained the nature of order to the
persons who accompanied me and the property was vacant land, I took possession
through senior bailiff of the Court under Order 21, Rule 35, C.P.C."
6. The Senior Bailiff in his report to the Court recorded:
"I went to the petitioner's place, at Munearpalam Village, Palai T.K.,
along with the witnesses, the respondent was not there, I explained the nature
of order regarding the vacant land under possession of respondent and under
Order 21, Rule 35, C.P.C, and gave possession to petitioner, attested copy of
Sale Deed, decree copy is enclosed with this return. Village Administrative
order (sic) refused to sign."
7. The First Respondent contends that they are still in possession. It filed an
application in the said Execution Application being E.A. No. 1222 of 2003
before the Executing Court on the next day i. e. on 29.10.2003 stating:
"Now I came to understand records have been created as though the 2nd
respondent had delivered the possession of the property to the 1st respondent.
Even though no such thing had happened in reality. Because I alone is in the
possession and enjoyment of the property."
8. The said Execution Application was dismissed. During pendency of the said Execution Application, the First Respondent filed two suits being O.S. No. 271 of 2003 and O.S. No. 276 of 2003. The first suit was filed for restraining the defendant (Second Respondent herein) from giving possession of the suit property whereas in the second suit, the prayer made was for cancellation of the decree passed in O.S. No. 140 of 2003 and declaring the sale deed borne out of the said decree as null and void. Both the suits were withdrawn. The First Respondent thereafter filed a suit for declaration of title and consequential permanent injunction in the Court of District Munsiff, Tirunelveli being O.S. No. 641 of 2003. The said suit again indisputably is still pending.
9. Against the order dismissing the said E.A. No. 1222 of 2003, the First
Respondent filed a Civil Revision Petition before the High Court. By reason of
the impugned judgment, the High Court not only went into the question as regard
correctness or otherwise of the purported delivery of possession of the land in
question in favour of the Appellant herein but also opined that the decree
passed in the aforementioned O.S. No. 140 of 2003 was collusive. Having held
so, it directed:
"In the above said circumstances, the power given to the Court under
Article 227 of the Constitution of India to have the superintendence over all
the Courts had got to be exercised to set aside the very decree and judgment
passed in O.S. No. 140 of 2003 and the first respondent is not entitled to
execute the decree and take possession of the suit property.
But, however, the parties to the proceedings in O.S. No. 140 of 2003 shall take
trial of that suit along with other suits in O.S. No. 641 of 2003, District
Munsif Court, Tirunelveli, and O.S. No. 381 of 2003 on the file of the District
Munsif Court, Tirunelveli. As the matters are inter related with each other in
respect of the very same subject matter of the suit properties and also to
avoid further multiplicity of proceedings, I come to the conclusion that all
the suits have got to be tried jointly. Hence, I do hereby withdraw the suits
pending before the District Munsif Court, Tirunelveli, and post these suits
before the Sub-Court, Tirunelveli for a joint of all the suits which alone
appears to me as more appropriate."
10. Mr. V. Krishna Murthy, learned counsel appearing on behalf of the Appellant
raised a short question in support of this appeal. It was urged that having
regard to the fact that in the Execution Application, the bailiff delivered
possession of the suit land in favour of the Appellant, the First Respondent
herein could not have maintained an application purported to be under Section
151 of the Code of Civil Procedure for the reliefs prayed for therein. Having
not filed an application in terms of Order 21, Rule 97 of the Code of Civil
Procedure, the First Respondent, thus, could not have raised a contention as to
whether the decree obtained by the Appellant in the said O.S'. No. 140 of 2003
was collusive or not. Such a contention, Mr. Krishna Murthy would submit,
should have been raised in a duly constituted suit.
11. Mr. P.S. Mishra, learned Senior Counsel appearing on behalf of the
Respondent, on the other hand, submitted that as the First Respondent continued
to be in possession of the suit property, the High Court rightly went into the
question as regards legality or otherwise of the decree passed in the said O.S.
No. 140 of 2003. It is not a case, Mr. Mishra would submit, where a suit for
specific performance was filed impleading the owner of the property. Evidently,
the Appellant and the Second Respondent herein had entered into the said
purported agreement for sale dated 1.10.2002 only in an attempt to get rid of
the compromise decree dated 27.4.1989 passed in O.S. No. 1220 of 1987.
12. It is not in dispute that the consent decree passed in O.S. No. 1220 of
1987 has not yet been set aside. It is furthermore not in dispute that in terms
of the consent decree, the First Respondent herein is in possession. A decree for
permanent injunction has been passed in its favour. The Appellant herein in
terms of the decree passed in his favour in O.S. No. 140 of 2003 and the
purported sale deed pursuant thereto on 17.6.2003, merely has stepped into the
shoes of the Second Respondent. He cannot claim a better title than her. Thus,
so long the decree passed in the said O.S. No. 1220 of 1987 is not set aside,
and/or the original Suit No. 381 2003 is not decreed, the possession of the
First Respondent herein could not have been interfered with. The slip-shod
manner in which the purported delivery of possession was sought to be effected
has been noticed by us. The Central Nazir did notice that the schedule property
was not in possession of the judgment-debtor in O.S. No. 140 of 2003 but still
the possession thereof was purported to have been taken through Senior Bailiff
under Order 21, Rule 35 of the Code of Civil Procedure. Even the Senior Bailiff
in his report states that he went to the plaintiff's place. The defendant was
not there. How the land was identified had not been shown. Even the Village
Administrative Officer refused to sign.
13. In that view of the matter, when the First Respondent in its application
under Section 151 of the Code of Civil Procedure stated that it continued to be
in possession, the same cannot be disbelieved. In any event, having regard to
the fact that the First Respondent could not have been dispossessed pursuant to
or in furtherance of the decree passed in the said O.S. No. 140 of 2003, it
would be entitled to continue to possess the said property and in the event,
possession has been taken symbolically or otherwise, possession should be
restored to the First Respondent.
14. The High Court, however, was not correct in dealing with the question as to
whether the decree passed in O.S. No. 140 of 2003 was collusive or not. Such a
question did not and could not have arisen before the Executing Court. The
First Respondent also filed a suit which is pending. The question may have to
be decided in O.S. No. 381 of 2003 and O.S. No. 641 of 2003 which are still
pending. Until there is a decree in favour of the assignor of the Appellant in
those suits, the compromise decree passed in O.S. No. 1220 of 1987 would have
to prevail and prima facie, the title of the land is with the First Respondent.
We are, therefore, of the opinion that interests of justice will be subserved
if, in modification of the order passed by the High Court, both O.S. No. 381 of
2003 and O.S. No. 641 of 2003 are directed to be tried jointly by a competent
Court. As the Appellant herein is a party in O.S. No. 641 of 2003,
indisputably, all rival contentions could be gone into therein.
15. It is not necessary, as has been directed by the High Court, to reopen the
decree passed in O.S. No. 140 of 2003. The fate of the decree passed in the
said suit evidently would depend upon the outcome of the aforementioned O.S.
No. 381 of 2003 and O.S. No. 641 of 2003. We will, however, request the
concerned Court to consider the desirability of disposing of the aforementioned
two suits as early as possible, preferably with a period of six months from the
date of communication of this order. The purported delivery of possession in
execution of O.S. No. 140 of 2003 will stand nullified and the possession of
the First Respondent is recognized subject to the result of O.S. Nos. 381 of
2003 and 641 of 2003. If necessary, the Executing Court will redeliver the
property to First Respondent, if applied for in that behalf.
16. This appeal is disposed of with the aforementioned directions. The parties
shall bear their own costs.