K.B. Asthana, J.
1. By this application an order passed by the learned First Additional Civil Judge of Kanpur dismissing the auction purchaser's application under Order XXI, Rule 97 of C. P. Code for delivery of possession of the house purchased, has been brought up for revision. The facts which are necessary for the proper appreciation of the contentions raised by the learned counsel for the parties may be briefly stated.
2. The Punjab and Sindh Bank obtained a decree for money against Smt. Narani Devi and one of her sons Shri Narain. In execution of this decree the decree-holder got a big house No. 24/88-A, Birhans Road, Kanpur, belonging to Smt. Naraini Devi, one of the judgment debtors, attached. The house attached was put to auction on 4-9-1961 and was purchased by the applicants for a sum of Rs. 1,11,000/-. The sale was confirmed on 14-1-1962. Smt. Naraini Devi, it appears, filed a revision in the High Court against the confirmation of the sale but failed. Her revision was dismissed by the High Court on 27-3-1962. The house in question was partly tenanted of which possession had already been delivered to auction purchasers and partly occupied by the judgment-debtors Smt. Naraini Devi and her son Shri Narain, On 4-4-1962 on the application of the auction purchasers the court directed the judgment-debtors to deliver possession. Hari Narain, another son of Smt. Naraini Devi who was not a judgment-debtor resisted delivery of possession. It appears that when Hari Narain came to know that the auction purchasers had sought police help to get the delivery of possession, he approached the court and filed an application on 11-4-1962 for setting aside the order of the court dated 4-4-1962 directing delivery of possession. This was registered as Misc. Case No. 22 of 1962.
3. On 7-5-1962 the auction purchaser applicants filed their application under Order XXI Rule 97, C. P. C. alleging that Hari Narain at the instigation of the judgment-debtors had obstructed the delivery of possession and prayed for necessary orders against him. This was registered as Miscellaneous application No. 25 of 1962. The learned Civil Judge consolidated the above said-two applications for hearing.
4. Hari Narain in his reply to the application of the auction purchasers pleaded that the house in question was owned by the firm Hari Narain Shri Narain as the plots on which the house stood had been acquired from the funds of the said firm during the life time of has father Raja Ram who was a partner in equal share with him and Shri Narain. It was alleged that the funds for constructing the house in question were invested from the partnership assets and the name of Smt. Naraini Devi in the sale deeds (lease deeds) in respect of the plots and on the house entered in public records were merely benami. It was further pleaded that the objector was residing in a separate portion of the house since the time it was built and each of the judgment debtors was also in possession of separate portions of the house as co-sharer proprietors. It was also alleged that the resistance and obstruction made by the objector was bona fide and on his own behalf and in any view the auction purchasers were entitled to be delivered possession only as co-sharers on the shares of the judgment-debtors that is merely a symbolical possession and prayed that they be prevented from physically dispossessing him. The learned Civil Judge by his order under revision accepted these pleas of Hari Narain and dismissed the application of the auction purchasers under Order XXI Rule 97, C. P. C.
5. Sri Brij Lal Gupta, the learned counsel for the applicants, submitted that the court below had acted with material irregularity and illegality in the exercise of its jurisdiction inasmuch as the manner in which it arrived at the result, suffers from manifest illegality and procedural irregularity. It was pointed out that in a proceeding of this nature the court below had no jurisdiction to decide the question of title to the house by entertaining a plea of benami and making an inquiry in this regard and recording a finding thereon. It was also pointed out that in arriving at its finding the court below in disregard of the principles of law allowed its mind to be influenced by cartain material on the record which was irrelevant and even inadmissible in evidence. The learned counsel submitted that the evidence on record established that Hari Narain had no bona fide claim to the house and the finding recorded to the contrary on the basis of benami by the court below is not supported by any evidence on record and this amounted to an error apparent on the face of the record or a decision against the provisions of law. It was lastly urged that in any view of the matter the court ought to have ordered actual delivery of possession of at least that portion of the house which was in actual physical possession of the judgment debtors.
6. On the other hand, Sri Rajaram Agarwal appearing for the opposite party Hari Narain submitted that the order of the court below did not suffer from any jurisdictional error and findings recorded were valid and could not be interfered with by this Court in exercise of its revisi-onal powers under Section 115 of the Civil Procedure Code.
7. Munshi Ambika Prasad, who appeared at the later stage on behalf of the opposite party contended that on merits of the question involved reliance placed by the court below on a previous judgment in which the house in question was held not to be the property of Smt. Naraini Devi alone, but as the property of the partnership firm constituted of Rajaram and his sons was just and proper as the said judgment was relevant and admissible in evidence and it could not be said that the findings recorded by the court below were not supported by any evidence.
8. It is not disputed on behalf of the opposite party Harinarain that he had all along knowledge of the fact that the house in question was got attached in execution of the decree against Naraini Devi and Shri Narain and it was sold in execution of that decree. In fact there is evidence on the record that Hari Narain was present at the auction of the disputed house. It is also not disputed that Hari Narain never raised any objections to the attachment, the sale proclamation and to the sale itself. It was only in April 1962 when the auction purchasers went to take actual delivery of possession after the revision of Naraini Devi had been dismissed by the High Court that Hari Narain for the first time came on the scene. In his objection as already mentioned above, Hari Narain stated that the opposite parties, i.e. Naraini Devi, Shri Narain and himself were residing in separate portions of the house since the same was built and each one of them was in possession as a co-sharer proprietor and not merely as a licensee of Smt. Naraini Devi and that he was in possession of a portion of the house described at the foot of the objection as a co-sharer owner and did not claim any rights through Smt. Naraini Devi and Shri Narain judgment debtors. It is thus admitted by Hari Narain that he was in actual physical possession of a specified portion of the house and further that each of the judgment-debtors was in actual physical possession of separate portions of the house.
9. As appears from the order of the court below, on behalf of the auction purchasers in order to establish that the disputed house was the exclusive property of Smt. Narayani Devi two deeds of lease were produced which show that the plots on which the house in dispute was constructed were leased in favour of Smt. Narayani Devi. Reliance was also placed on statement made by Hari Narain in Original Suit No. 2 of 1957, (Smt. Narayani Devi v. Union of India) as a witness for the plaintiff which was to the effect that the house in dispute was exclusively owned by his mother Smt. Narayani Devi. The fact that the costs incurred in the construction of the house were debited to the personal khata of Smt. Narayani Devi in the accounts of the Firm Shri Narain Hari Narain was also relied upon. Certain judgment and decrees were also produced evidencing that several suits were filed by and against Smt. Narayani Devi alone in respect of the said house. Certain assessment rolls relating to the disputed house for the years 1953 to 1958 showing that Smt. Narayani Devi alone was mentioned as the owner of the disputed house were also produced.
The learned Civil Judge has explained away these pieces of evidence as not establishing the sole ownership of Smt. Narayani Devi on the disputed house on the basis that she was benamidar of the disputed house the above said transacions being in her name alone would not conclusively or even satisfactorily show that she must be deemed to be the owner of the disputed house and not merely its benamidar. It is interesting to note that the learned Judge first considered these documents and rejected them and then later on proceeded in his judgment to consider whether Smt. Narayani Devi was a benamidar of the disputed house. The statement of Hari Narain in the previous suit which was sought to be relied upon by the auction purchasers as an admission of the sole title of Smt. Narayani Devi was brushed aside by the learned judge on the ground that it was not made in a suit between the parties to the present proceedings and that it was for the applicants-.aucion purchasers to have asked for an explanation from Hari Narain about the circumstances in which that admission was made and that not having been done it could not be relied upon.
10. To prove his positive case of Benami Hari Narain relied upon an averment in an affidavit sworn by Gopi Krishna, one of the auction purchasers, as an admission on his part that the house in dispute was owned by the firm Shri Narain Hari Narain. Other piece of evidence which was produced by the objector Hari Narain was a judgment in the Original Suit No. 2 of 1957, Smt. Narayani Devi v. Union of India, in which Smt. Narayani Devi was held to be benamidar of the disputed house. No other evidence of any kind beyond what has been mentioned above was produced by Hari Narain to prove that Smt. Narayani Devi was only a benamidar of the house in dispute. Hari Narain himself did not appear as a witness in the miscellaneous proceedings.
I think the learned counsel for the applicants is on strong grounds when he submits that the above said pieces of evidence are no evidence to prove the case of benami. To prove the so-called admission of Gopi Krishna contained in Ext. A-I a copy of the affidavit filed by him in the High Court in opposition to the application and affidavit of Smt. Narayani Devi for an interim order pending her revision in the High Court against the order confirming the sale (paragraph 17) which was sought to be relied upon as an admission, in my judgment, is no admission at all of any fact relating to the title to the disputed house. That paragraph was sworn in reply to paragraph IT of the main affidavit filed on behalf, of Smt. Narayani Devi and what was said in that paragraph was that it was held by the learned Civil Judge, Kan-pur, in case No. 2 of 1957 that the house in dispute belonged to the firm Shri Narain Hari Narain of which Smt. Narayani Devi and her sons were partners and a sum of Rs. 70,000/- lying as surplus of the purchase price of the disputed house was attached by the Income-tax Department.
It was further averred that the deponent was advised to state that surplus could not be treated as a deposit under the second proviso of Order XXI, Rule 90 for granting or refusing exemption. It is beyond comprehension that the contents of that paragraph in the affidavit of Gopi Krishna can amount to an admission that the house in dispute was owned by Firm Shri Narain Hari Narain and not by Smt. Narayani Devi. It only stated a fact that in Orignal Suit No. 2 of 1957 it was held so, and that he was advised that the so called surplus of Rs. 70,000/- could not be considered as deposit under second proviso to Order XXI, Rule 90. The learned Judge has drawn an absolutely erroneous inference from the contents of the relevant paragraphs in Ext. A-1, and on that basis holding, to use his own words. 'It goes to smash the claim of the auction purchasers and contrarily supports the aforesaid contention of the objector Hari Narain'.
The learned Judge further adverted to in his judgment to another so-called admission of Gopi Krishna contained in his statement before the Court in respect of the possession of Hari Narain in the portion of the disputed house and by a peculiar reasoning to the effect that it was not stated to Gopi Krishna that possession of Hari Narain over some portion of the disputed house was on behalf of Smt. Narayani Devi and not in his own right and title observed 'that admission gave a death blow to the claim of the purchaser'. The relevant statement of Gopi Krishna has been read over to me and no portion of that statement by any stretch of imagination can be read as an admission on the part of Gopi Krishna admitting that Hari Narain was in possession of a portion of the disputed house on the basis of his own right and title. From the above discussion it is clear that the learned Judge has wholly mis-read and mis-construed material pieces of evidence and on that basis spelt out a case of admission on the part of the auction purchasers in respect of the right and title of Hari Narain objector. It follows that the above said pieces of evidence are no evidence in the eye of law to support a finding that the house in dispute was owned by all the opposite parties under their respective right and title and Smt. Narayani Devi's name was only benami.
11. As to the relevancy and admissibility of the judgment in the original suit No. 2 of 1957 somewhat lengthy arguments were addressed by the learned counsel at the Bar. Sri Gupta on behalf of the applicants submitted that as that judgment was not covered by Sections 40, 41 and 42 of the Evidence Act, it was irrelevant as enjoined by Section 43 of the Evidence Act and was inadmissible. Sri Ambika Prasad for the opposite parties urged that under Section 13 of the Evidence Act it could be admitted in evidence as a transaction or instance recognising a right. It was further urged that even assuming that the Court below relied upon it by admitting it in evidence it would amount to merely a mistake of law on its part and would not raise a question of jurisdiction within the meaning of any of the Clauses of Section 115, Civil Procedure Code. Sri Gupta on behalf of the applicants further submitted that even assuming that the said judgment was admissible and could be relied upon as a relevant fact under Section 13 of the Evidence Act that judgment by itself could not prove the fact that Hari Narain objector was a co-sharer in the disputed house and had a right or title to it and the purchase was benami in the name of Smt. Narayani Devi inasmuch as there was no substantive evidence on the record of the present case to prove that fact.
The learned counsel brought out the distinction between a 'relevant fact' and 'fact in issue' as defined in the Evidence Act and submitted that when a right or custom is in dispute and there is material on record in the suit to support that right then a previous judgment in which such a right had been recognised can be relied as a relevant fact that a transaction by which or a particular instance in which such right was recognised. It is clear that a right in dispute cannot be proved on the basis of the finding in respect of that right in a previous suit not inter partes. It cannot be disputed that a judgment recording a finding recognising certain right cannot be used as evidence to prove that in another suit not between the same parties. The learned Judge of the Court below seems to have treated the judgment in original suit No. 2 of 1957 as a proof in the nature of a substantive evidence that Smt. Nara-yani Devi was merely a Benamidar of the disputed house. The judgment in original suit No. 2 of 1957 was not inter partes. The present auction purchasers were not bound by the same.
As there is no other direct evidence on the record and not even the statement on oath of Hari Narain objector or any witness on his behalf that he had a moiety share in the disputed house and all the transactions in the name of Smt. Na-rayani Devi in respect of the disputed house were benami, the judgment in original suit No. 2 of 1957, in my opinion, could not be of any benefit to Hari Narain. It has been pointed out to me that the very judgment in original suit No. 2 of 1957 makes a reference to a still earlier suit No. 173 of 1949 in which after contest the Court had found that the house in dispute exclusively belonged to Smt. Narayani Devi. That was a suit by Smt. Narayani Devi against the State, but it was ultimately dismissed on the technical ground that notice under Section 80 of the Code was not given. There is yet another good reason why the judgment in original suit No. 2 of 1957 could not be used to prove a relevant fact in support of the fact in issue in the present case under Section 13 of the Evidence Act and it is that the said judgment has not yet become final being under appeal in the High Court. The suit in which that judgment was given is still continuing in the shape of an appeal in the High Court and it will not be known as to what would ultimately be decided in that suit. This circumstance, to my mind, derogates from its character of being a transaction recognising a right or an instance recognising that right.
It seems to me that it is inherent in the scheme of Section 13 of the Evidence Act that only a judgment which has become final can be said to be a transaction evidencing the recognition of a right or an instance in which that right has been recognised. I am, therefore, clearly of the opinion that the judgment of the original suit No. 2 of 1957 would be no legal evidence to support the finding that objector Hari Narain had a moiety share in the disputed house and was in possession of a portion of the same in his own right or on his own account.
12. The burden of proving that the objector Hari Narain was in possession of the disputed house or a portion thereof on his own account was on him. I agree with Sri Gupta's contention that the manner in which the learned Judge of the Court below has approached the case shows that he placed the burden on the auction purchasers-applicants. The auction purchasers as said above had produced relevant materials as evidence to show that the house in dispute was exclusively owned bv Smt. Narayani Devi the judgment-debtor. Without any satisfactory consideration as to the intrinsic worth of those materials the learned Judge explained the same away or brushed the same aside by merely assuming that Smt, Narayam Devi was a Benamidar. When he came to give a finding on the question of benami, he used certain materials as pieces of evidence in support of that finding which I have already shown above were no legal evidence in support of that finding.
The result thus is that while the evidence filed on behalf of the applicants that the house in dispute exclusively belonged to Smt. Narayani Devi and other allegations on behalf of the auction purchasers to the effect that the objector Hari Narain had obstructed the delivery of possession at the instigation of the judgment-debtors and his conduct was not bona fide remain unconsidered, the Court below has given a finding in favour of the objector without any evidence to support it. The statement of Hari Narain as a witness in original suit No. 2 of 1957 whether it amounted to an admission binding on him even in the present proceedings is not for me to consider at this stage but I must observe that the learned Judge has on a very untenable ground eliminated the same from consideration. The onus was on Hari Narain to explain the admission. The auction purchasers applicants were under no duty to call him in the witness box for cross-examination. It was suggested on behalf of the opposite parties that there was an affidavit on the record by Hari Narain averring all the facts. My attention has not been drawn to any such affidavit; even if it were there it would not be evidence in a case of this nature and more particularly to prove Benami.
13. It was next suggested on behalf of the opposite parties that this Court ought not to exercise its discretionary powers under Section 115 of the C. P. Code as under Rule 103 of Order XXI there was an alternative remedy open to the auction purchasers applicants to file a suit to get the necessary relief. This argument has been made often and considered by various High Courts many times. There cannot be any hard and fast rule in this regard. It will depend on the facts and circumstances of each case. That is inherent in the very nature of exercise of discretionary powers. Rule 103 of the Code equally affords a remedy to any aggrieved person, whether an auction purchaser-applicant or a person who claims to be bona fide in possession on his own account. In this case, as I have come to the conclusions that the Court below has neither made a proper approach to the case, nor has it given any mature consideration to the evidence and the manner in which the result has been arrived at is not in accordance with law, the case does call for interference.
14. The question yet remains to be considered whether the Court below has committed an error which amounts to any material illegality or irregularity in the exercise of its jurisdiction. The learned counsel for the parties cited before me a large number of cases explaining the extent and scope of Section 115 of the C. P. Code for the exercise of revisional power by the High Court. I do not propose to mention those cases as I do not think it to be necessary. To my mind law on Section 115, C. P. Code is now well crystallised, while clauses (a) and (b) of Section 115 Civil Procedure Code deal with erroneous assumption ofjurisdiction or erroneous refusal to exercise a jurisdiction, Clause (c) deals with material illegality andirregularity in the exercise of jurisdiction. The lastclause, therefore, contemplates cases or causeswhich the Court has jurisdiction to entertain anddecide but while exercising that jurisdiction in arriving at its decision it commits illegality or material irregularity. The law has been declared bythe Supreme Court that acting illegally in theexercise of jurisdiction means arriving at the result in the breach of any provision of law, andacting with material irregularity means committinga procedural error in the conduct and manner ofproceedings affecting the result. See Chaube Jagdish Prasad v. Ganga Prasad, AIR 1959 SC 492para 19 at p. 497.
15. Under the scheme of Rules 97 onwards to Rule 103 of Order XXI it is manifest that an auction purchaser in whose favour the sale has become absolute is entitled to get actual delivery of possession. If anybody obstructs or resists, the Court will grant the auction purchaser the requisite aid and relief. If it is shown to the satisfaction of the Court that it is the judgment-debtor who is obstructing, the judgment-debtor has no defence and he will have to be ejected. The same is the fate of the person who obstructs on behalf of the judgment-debtor or at his instigation. The law, however, affords a protection to a person who is in possession bona fide on his own account and it preserves that right even to this extent that if he is ejected then he can apply to the Court for being put back into possession. The jurisdiction of the Court to reject the application of the auction purchasers under Order XXI, Rule 97 depends on the finding that the person who is obstructing has bona fide right to remain in possession on his own account such person has to satisfy the Court.
At the same time auction purchaser has a right to say to the Court that the person obstructing has been set up by the judgment-debtor himself or is obstructing at his instigation. It is the duty of the Court to afford opportunity to the auction purchaser to prove his case and to the obstructor, who claims the right to remain in possession, to prove that he has a bona fide claim to remain in possession on his own account. No question of title as such is to be decided by the Court in these proceedings. No doubt the Court has to satisfy itself as to tie bona fide claim of a person objecting under Order XXI Rule 99 of the Civil Procedure Code and any observation or finding recorded by it could not be to the prejudice of either party as the remedy to establish their respective right is open by way of a suit under Rule 103 but that does not absolve the Court from, its responsibility to give a judicial consideration to all the facts and circumstances of the case placed before it by either party.
As I have found above that in the present case the Court below has not at all properly approached the case and has in arriving at the result in favour of the objector Hari Narain omitted to take into consideration several pieces of evidence filed on behalf of the auction purchasers applicants or at any rate has not given sufficient and proper consideration to the same and has taken into consideration materials which could not be legally taken into consideration in arriving at a finding in favour of the objector Hari Narain it does appear to me that in exercise of his jurisdiction the Court below has acted with material illegality and irregularity vitiating the result.
16. There further remains the question' of giving symbolical possession to the auction-purchasers-decree-holders to the extent of the snare of the judgment-debtors. It was stated before me at the Bar by counsel for the applicants that possession over the portions of the disputed house which were tenanted had already been delivered to the auction-purchasers-applicants in accordance with law. The obstruction was caused only in respect of those portions which were in actual physical possession of the judgment-debtors and Hari Narain objector. It is admitted that each of the three persons that is the two judgment-debtors Smt. Narayani Devi and Shri Narain and the third Hari Narain were in separate actual physical possession of specific portions. I do not find anything in the scheme of Order XXI Rule 97 for the delivery of symbolical possession. An obstruction and resistance contemplated under Order XXI, Rule 97 is to the actual delivery of physical possession. When a person is actually occupying immovable property and resisting the delivery of possession only when he would be said to be obstructing and resisting the actual delivery of possession on the ground that he is bona fide in possession on his own account. Therefore, reading Rules 97 and 99 together only that person can claim relief under Rule 99 who is in actual physical possession of the property and claims that he is bona fide in possession on his own account.
It follows, therefore, when Hari Narain applied under Rule 99 to the Court concerned regarding the portion which he was occupying he was saying that he was in actual and physical occupation thereof bona fide on his own account. If that was not so it would result in an absurd position, namely, that the judgment-debtor who under the scheme of those rules have no right to resist and obstruct actual delivery of possession would continue to remain in possession since the third co-sharer who was not a judgment-debtor can claim that unless there is partition the auction-purchaser cannot get actual delivery of physical possession. I do not think that was intended under the scheme of those rules. I am, therefore, of the view that as far as that portion of the disputed house which is in actual occupation of Smt. Narayani Devi and Sri Narain, judgment-debtors, applicants auction-purchasers are entitled to the delivery of actual physical possession.
In respect of the specified portion only which is in actual occupation of Hari Narain, objector, a claim can be made and relief sought under Rule 99 and it has to be decided by the Courts on merits in accordance with law. A reference was made to the provisions of Order XXI Rule 36 by the learned counsel for the opposite parties and it was urged that the same principle should be applicable as laid therein. I do not think any analogy can be drawn between a case falling under Order XXI, Rules 97 and 99 and a case contemplated under Order XXI Rule 36 of the Code, This submission does not appeal to me.
17. As a result of the discussion above this application in revision succeeds. The order of the Court below is set aside. It is ordered that the auction-purchasers applicants shall get actual delivery of possession of those portions of the disputed house which are in occupation of the judgment-debtors Smt. Narayani Devi and Sri Narain. As far as the question of actual delivery of possession if the portion of the house in dispute occupied by Hari Narain, objector, is concerned it is ordered that the case is remanded to the Court below and the Miscellaneous case No. 25 of 1962 shall be restored to its original number and heard and decided in accordance with law in the light of the observations made in this judgment. The applicants shall be entitled to their costs of this revision.