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CASE NO.: Appeal (civil)  1617 of 2006

PETITIONER: Mohamed Masthan

RESPONDENT: Society, Congregation, Bros., S. Heart & Anr

DATE OF JUDGMENT: 10/03/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No. 20291 of 2004]

S.B. Sinha,  J.

       Leave granted.

       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.   The First Respondent filed a suit against the Second Respondent in the Court  of District Munsif, Tirunelveli which was marked as OS 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.   

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 OS 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.

       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 OS No. 140 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

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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 CPC."

       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 CPC, and  gave possession to petitioner, attested copy of Sale  Deed, decree copy is enclosed with this return.   Village Administrative order (sic) refused to sign."

       The First Respondent contends that they are still in possession.  It  filed an application in the said Execution Application being EA 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."

       The said Execution Application was dismissed.  During pendency of  the said Execution Application, the First Respondent filed two suits being  OS No. 271 of 2003 and OS 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 OS 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 OS No. 641 of 2003.  The said suit again  indisputably is still pending.

       Against the order dismissing the said EA 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 OS 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

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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."

       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 OS  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.   

       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 OS 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 OS  No. 1220 of 1987.

       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 OS 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 OS 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 \026  debtor in OS 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.

       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 OS 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.

       The High Court, however, was not correct in dealing with the question  as to whether the decree passed in OS 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 OS No. 381 of 2003 and OS No. 641 of  2003 which are still pending.  Until there is a decree in favour of the

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assignor of the Appellant in those suits, the compromise decree passed in OS  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 OS No. 381 of 2003 and OS No. 641 of 2003 are directed  to be tried jointly by a competent court.  As the Appellant herein is a party in  OS No. 641 of 2003, indisputably, all rival contentions could be gone into  therein.   

       It is not necessary, as has been directed by the High Court, to reopen  the decree passed in OS No. 140 of 2003.  The fate of the decree passed in  the said suit evidently would depend upon the outcome of the  aforementioned OS No. 381 of 2003 and OS 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 OS No. 140 of 2003  will stand nullified and the possession of the First Respondent is recognized  subject to the result of OS 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.

       This appeal is disposed of with the aforementioned directions.  The  parties shall bear their own costs.