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Tarabai Vishwanath Sabins Vs. National and Grindlays Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberAppeal No. 55 of 1968 and Suit No. 422 of 1964
Judge
Reported inAIR1969Bom447; (1969)71BOMLR156; 1969MhLJ512
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 97 to 102 and 103
AppellantTarabai Vishwanath Sabins
RespondentNational and Grindlays Bank Ltd. and ors.
Appellant AdvocateS.N. Naik and ;K.H. Bhabha, Advs.
Respondent AdvocateM.R. Mody and ;Paralkar, Advs.
Excerpt:
.....a division bench of the high court cannot investigate into findings made by a single judge of the high court on chamber summonses-applications for possession under rules 97 to 102 of order xxi of the code. - - the claim, prima facie, appears to be curious and, therefore, such as might have been rejected by the learned single judge, (sic) to the procedure prescribed is summary, it was permissible on these facts for the learned single judge to hold that the claim made by the appellant for continuing in possession was not a claim made in good faith and that accordingly the plaintiffs were entitled to the reliefs claimed in the chamber summons......was occupied by gajrabai and rama lalu was situate on government land. on the record before the learned judge it was not possible to reach the conclusion that the appellant was even constructively in possession of the hut and a small part of the land in question. that was so because opponents nos. 2 and 3 gajrabai and rama were in fact in possession and because, according to the appellant herself, she did not claim to be in possession except on behalf of the government. the learned judge formed the view that as the appellant went to the land at the time when the decree was being executed against the person in possession of the shed, the appellant was not in possession. for these reasons, the learned judge thought that it was not necessary to investigate the claim of the government.....
Judgment:

K.K. Desai, J.

1. This is an appeal on behalf of the original Opponent No.1 in the chamber summons dated May 31, 1967 whereby the 1st respondents-original plaintiffs sought directions for delivery of physical Khas possession of a certain portion of land bearing new S. No. 217 of village Kurar by removal, inter alia, of the appellant and two other Opponents viz., Gajrabai Lalu and Rama Lalu. The substance of the case of the plaintiffs was that decree for delivery of possession of the whole of the land bearing new S. No. 217 was passed in favour of the plaintiffs. For execution of that decree for possession, along with the plaintiffs' representatives, the Sheriff was to proceed on May 8, 1967. On may 7, 1967, the defendant in the suit removed the entire wire fencing round-about the land. Three hutments on the land were within the above wire fencing enclosing S.No. 217. As the barbed wire fencing was removed by the defendant and as the marks thereof had been obliterated, on May 8, 1967, when the Sheriff proceeded to the locality for taking possession, an attempt was made by the appellant on behalf of the Government to make a claim that one of the three huts lying on S.No. 217 was on the adjoining land bearing new S.No.218 belonging to the Government. In this third hut opponents Nos. 2 and 3 Gajrabai Lalu and Rama Lalu were found. The Sheriff, made a report dated May 8, 1967, which is annexed as Ex. 'A' to the affidavit of Shringarpure in rejoinder. As regards this third hut, the Sheriff stated that Gajarabai Lalu and her son Rama Lalu were staying in the hut. The occupants of the other two huts delivered possession but the appellant Tarabai came and claimed the land and fencing of small round piece of land in occupation of Gajarabai as belonging to the Government. The physical possession of this part of the land was, therefore, not taken. The plaintiffs thereupon took out the above chamber summons dated May 31, 1967, for the reliefs already described above.

2. By her affidavit in reply, the appellant stated that she was the Principal of Physical Training Institute and was residing at Kandivli. The Government was the owner of land bearing new S.No. 218, Malad, and the Government was running an Institute for physical training on the land. There were several buildings on the land. As regards this third hut and the small part of the land for which the summons was taken out, she stated hat this part of the land was given by the Government to the contractor who had put up buildings on S.No. 218 for cultivation of vegetables and the contractor had built a small hut on the portion of the land. When the Sheriff had come for execution on May 8, 1967, she had claimed that the hut was in the boundary of the Government land. She repeated that the hut was much inside the Government property. In affidavit in rejoinder all these facts were denied on behalf of the Plaintiffs.

3. Mody, J. by his order dated July 31, 1968, held that there was nothing on the record to show that the appellant (opponent) was in physical possession of the shed. The possession was that of the opponents Nos. 2 and 3 viz., Gajrabai and her son Rama Lalu. The opponent No. 1 had only arrived at the scene after the Sheriff had contacted her and then alleged that this hut which was occupied by Gajrabai and Rama Lalu was situate on Government land. On the record before the learned Judge it was not possible to reach the conclusion that the appellant was even constructively in possession of the hut and a small part of the land in question. That was so because opponents Nos. 2 and 3 Gajrabai and Rama were in fact in possession and because, according to the appellant herself, she did not claim to be in possession except on behalf of the Government. The learned Judge formed the view that as the appellant went to the land at the time when the decree was being executed against the person in possession of the shed, the appellant was not in possession. For these reasons, the learned Judge thought that it was not necessary to investigate the claim of the Government and/or the appellant to the land in question and made the summons absolute in terms of prayers (a) and (b) with costs.

4. At the commencement of the hearing of this appeal on behalf of the plaintiffs Mr. Mody submitted that the order made by the learned Judge was not a judgment within the meaning of Clause 15 of the Letters Patent and appeal did not lie against the same. Mr. Naik for the appellant controverted that submission and made certain arguments in that connection. On the merits of the case by submitted that the fact the land S. No. 218 was of the ownership of the Government was admitted on the record. The claim made by the appellant that the Government had put their contractor in possession of part of the land bearing S. No. 218 to cultivate vegetables should have been accepted by the learned Judge. He should have accepted that the third hut in respect whereof the present chamber summons was taken out was on the land bearing. S. No 218. In that connection, he relied upon some of the statements made in paragraphs 2 and 5 of the affidavit of Shringarpure in rejoinder. He submitted that the appellant had made a bona fide claim in respect of the third hut and that the land was part of S. No. 218 and the summons should have been dismissed.

5. Now, in connection with all these arguments, it first requires to be noticed that we are not prepared to interfere with findings made and orders passed on applications for delivery of possession which are made and heard under the provisions of Order 21, Rules 97 to 102 of the Code of Civil Procedure. In this connection it always requires to be emphasised that the procedure prescribed under these rules is a summary procedure and not intended for decisions to be made by hearing oral evidence tendered on behalf of the parties. Rule 103, therefore, provides that the conclusions arrived at the orders made under the above rules will always be subject to the result of a suit which either party against whom the orders are made would be entitled to file. In out view, having regard to the provisions in Rule 103, it would not be right for a Division Bench of this Court to investigate into findings made by a single Judge of this Court on chamber summons in applications for possession under Rules 97 to 102 or Order 21 of the Code of Civil Procedure. The conclusions arrived at by the learned Judge were not intended to the final and could be treated by the appellant at their own option as tentative and could be challenged in a substantive suit. It is, therefore, curious that in a matter of this kind an appeal has been filed on behalf of the appellant.

6. Having regard to the facts which we find from the affidavits on the record in this appeal, we do not propose to decide the question whether the learned Judge's order can be described as an appealable judgment within the meaning of that phrase in Clause 15 of the Letters Patent.

7. The plaintiff's case was that the hut in question was within the wire fencing which enclosed the land S. No. 217 belonging to the plaintiffs. That fencing had been removed by the defendant in the suit of May 7, 1967. If this was a true that the allegation of the appellant that the hut and the land belonged to the Government may not be correct. She has made an extraordinary case that a contractor had been permitted to put up a hut on the land belonging to the Government and to cultivate the land for the purpose of growing vegetables. The claim, prima facie, appears to be curious and, therefore, such as might have been rejected by the learned single Judge, (sic) to the procedure prescribed is summary, it was permissible on these facts for the learned single Judge to hold that the claim made by the appellant for continuing in possession was not a claim made in good faith and that accordingly the plaintiffs were entitled to the reliefs claimed in the chamber summons. These being the facts, we see no reason to set aside the order made by the learned Judges.

8. The appeal is dismissed with costs, Liberty to the attorneys of the Respondent 1 to withdraw the amount deposited for costs to the extend necessary.

9. Appeal dismissed


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