1. The dispute in this second appeal relates to a house situate in Batala, District Gurdaspur. It, admittedly, belong to one Das Mal, a Brahmin, who died leaving a widow Shrimati Chandi and a daughter Shrimati Lal Devi. One Parbati alias Paro, Khatri by caste, also claimed to be his widow. On 4th September, 1940 this house was given on a monthly rent of Re. 1/- to Mansa Ram by a deed, Exhibit D.W. 2/A, by Parbati. on 29th July, 1942, Chandi and Lal Devi executed a gift deed, Exhibit P.W. 1/A, regarding this house along with another one and a shop in favour of Arya Pradeshak Priti Nidhi Sabha, hereinafter called the A. P. P. Sabha, through its President Guru Datt. In the said deed, it was mentioned that Paro was a keep of Das Mal and she was in possession of his house at Amritsar by way of maintenance and had no right in this house.
On 31st July, 1942, Parbati gifted her alleged half share in this house, vide Exhibit D.W. 1/A, to Sanatan Dharam Yuvak Sabha, Batala, hereinafter referred to as the Yuvak Sabha. On 2nd August, 1942, Chandi executed a rent-deed, Exhibit P.W. 6/A, in favour of A. P. P. Sabha in respect of two rooms in this house and two rooms in another house. On the same day, Mansa Ram wrote a rent-deed, Exhibit P.W. 3/B, in respect of the remaining portion of this house in favour of the said Sabha and the endorsements on the back of this deed show that he paid rent to the Sabha.
On 1st December, 1947, Roshan Lal took this house on lease, vide Exhibit P.W. 3/A, from Guru Dutt, President of the A. P. P. Sabha. Endorsements on the back of this deed also show that he paid rent for the same. On 19th February, 1950, one Des Raj executed a rent-deed, Exhibit D.W. 2/B, regarding this house in favour of the Yuvak Sabha. On 26th October, 1955, there is a rent-deed, Exhibit D.W. 2/C, by Wazir Chand, defendant No. 2, in favour of the Yuvak Sabha regarding this very house. On 6th May, 1958, vide Exhibit P.W. 5/A, Kunj Behari Lal, plaintiff, executed a rent-deed regarding this house in favour of the A. P. P. Sabha. It appears that subsequently Ved Parkash Kansra, Secretary of the Yuvak Sabha, defendant No. 1, filed an ejectment application against Wazir Chand, defendant No. 2, before the Rent Controller and obtained an order of eviction against him. When the said order was being executed, Kunj Behari Lal resisted delivery of possession saying that he was in possession of the said house in his own right as a tenant under the A. P. P. Sabha and he had no connection either with defendant No. 1 or defendant No. 2.
On 9th May, 1959, the executing Court, vide Exhibit P.W. 8/A, held that the A. P. P. Sabha was never in possession of the house for the last more than 12-13 years and that the resistance by Kunj Behari Lal was without any just cause. It, therefore, directed that the decree-holder be put into possession of the house and a warrant of possession was, consequently, issued. This led to the filing of the suit, out of which the present second appeal has arisen, by Kunj Behari Lal on 13th May, 1959, for a declaration that the order dated 9th May, 1959 was illegal and not binding on him. His case was that he was in possession of the house as a tenant under the A. P. P. Sabha, his landlord was the owner of the said house, the order of eviction was a collusive one, Wazir Chand was never in possession of this house and since the plaintiff was in its possession, he could be ousted only by the true owner.
2. This suit was resisted by the Yuvak Sabha, which controverted the claim of the plaintiff on a number of grounds. It was pleaded that the A. P. P. Sabha was neither the owner of the house nor was ever in its possession. The Yuvak Sabha was its owner since 1942. The plaintiff never occupied this house and he was not the tenant of the A. P. P. Sabha. He had got into its possession in collusion with Wazir Chand, defendant No. 2, after the order of eviction had been passed in favour of defendant No. 1 against the latter. The order dated 9th May, 1959, was legal and the suit was collusive and had been instituted for the benefit of defendant No. 2.
3. On the pleadings of the parties, the following three issues were framed:--
'1. Whether Arya Pradeshak Sabha is owner of the suit property?
2. Whether the plaintiff is tenant in possession of the suit property under Arya Pradeshak Sabha?
3. Whether this suit is collusive?
4. The trial Judge held that the A. P. P. Sabha was the owner of the house and the plaintiff was in occupation of the same as their tenant. He also found that the suit was not collusive. On these findings, the suit was decreed and the plaintiff was granted a declaration that the order of eviction passed against him by the executing Court was illegal and that he was not liable to eviction in execution of the order of ejectment obtained from the Rent Controller by defendant No. 1 against defendant No. 2.
5. Aggrieved by this decision, defendant No. 1 went in appeal before the learned District Judge, Gurdaspur, who found that the plaintiff had failed to prove that he had been in possession of the house on his own account. According to the learned Judge, Wazir Chand was the tenant of the Yuvak Sabha. Reversing the decision of the trial Court on issue No. 2, he accepted the appeal and dismissed the plaintiff's suit. The learned Judge did not give any findings on issues Nos. 1 and 3. During the course of his judgment, the learned Judge observed:
'If Arya Pradeshak Priti Nidhi Sabha is the owner of the house in dispute, it may file a separate suit, on the basis of title. A delicate question like that of ownership cannot be decided in a suit like the present one. It is also significant that Arya Pradeshak Priti Nidhi Sabha is not a party to the suit.'
5A. Against the decision of the learned District Judge, the present second appeal has been filed by Kunj Behari Lal.
6. The first contention raised by the counsel for the appellant was that the learned District Judge had erred in law in dismissing the suit without giving any finding on issue No. 1. The learned Judge was bound to decide the question of title raised by the plaintiff in the suit and without determining that matter, the appeal filed by the Yuvak Sabha could not have been accepted.
7. The present suit, as already mentioned above, was for a declaration that the order dated 9th May, 1959, Exhibit P.W. 8/A, passed by the executing Court was illegal and not binding on the plaintiff. This order had, undoubtedly, been made under the provisions of Order 21, Rule 98, Code of Civil Procedure. The said rule as amended by the Punjab High Court reads--
'Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. Such detention shall be at the public expense and the person at whose instance the detention is ordered shall not be required to pay subsistence allowance.'
8. In the impugned order, the executing Court had come to the conclusion that the resistance by the plaintiff to the delivery of possession of the house to defendant No. 1 was without any just cause. It, therefore, directed that the decree-holder be put into possession of the property. This order was being challenged in this suit, which was brought by the plaintiff under the provisions of Order 21, Rule 103, Code of Civil Procedure. It says--
'Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.'
9. A perusal of this rule would show that the order passed by the executing Court under Rule 98 would be conclusive, but the same was subject to the result of a suit brought by the aggrieved party under this provision. In order to succeed, the plaintiff has to establish his right, which he claims to the present possession of the property. In the instant case, although the executing Court had found that the plaintiff was not in possession of the house in question in his own right and the resistance made by him was without any just cause, he could in this suit establish his right to remain in possession of the property. His case was that he was the tenant of the house and had taken it on rent from the A. P. P. Sabha. According to him, the said Sabha was the owner of the house. The position taken by the Yuvak Sabha was that the A. P. P. Sabha had nothing to do with this house and as a matter of fact, the same had been gifted in their favour by Parbati, the alleged widow of Das Mall. The Yuvak Sabha claimed ownership of the house in question. It was because of these pleadings that issue No. 1 was framed in the case. The trial Court had decided this issue in favour of the plaintiff.
The learned District Judge was, however, of the view that the question of ownership of the view that the question of ownership could not be decided in a suit like the present one. He has not given any reason why in a suit brought under the provisions of Order 21, Rule 103, Code of Civil Procedure, the question of title to the proprietary right in dispute cannot be gone into. From the language employed in Rule 103, to me it seems clear that the plaintiff could establish his right, which he claimed to the possession of the property. If his case was that he did not derive any title either from defendant No. 1 or defendant No. 2, but he was the tenant of the A. P. P. Sabha, which owned the property in question, he could prove that fact in the suit. How else could a plaintiff in such a suit establish his right, is difficult to understand. Undoubtedly, the plaintiff was in possession of the property when in execution of the ejectment decree passed against defendant No. 2, he was going to be dispossessed. It was, therefore, that he had to bring the suit, when his objections were dismissed under Order 21, Rule 98, Code of Civil Procedure. In the suit, it had to be determined whether the allegations made by the plaintiff were correct or not, namely whether the A. P. P. Sabha owned the house and he had taken the same on rent from it. That is why issue No. 1 was struck in the case and evidence was led by both the parties thereon. It was held by a Bench of the Madras High Court in Unni Moidin v. Pecker, AIR 1921 Mad 317:
'A suit under Rule 103 is not concerned only with the question of actual possession at the date of the summary order. The suit is to establish the right which the plaintiff claims to the present possession of the property, and this right may be established without showing that the plaintiff was in actual possession at the date of the summary order against him.'
9A. Similar view was taken by a Division Bench of the Sind High Court in Ramzan v. Fakir Mahomed, AIR 1925 Sind 201 at p. 202, when it was held--
'The burden of proving a subsisting title to a land lies on the party out of possession and the fact that the party in possession is forced to institute a suit under Order 21, Rule 103, Civil Procedure Code, does not shift the burden of proof on to him.'
10. I am, therefore, of the view that it was necessary for the learned District Judge to give a finding on issue No. 1 as well.
11. Learned counsel for the respondent submitted that the question of title could not be determined in the absence of the A. P. P. Sabha, which was not a party to the suit.
12. This argument was raised, because the learned District Judge, towards the close of his judgment, after having held that a delicate question like that of ownership could not be decided in a suit like the present one, also added a sentence, already quoted above, namely; 'It is also significant that the A. P. P. Sabha is not a party to the suit.' Under Order 21, Rule 103, Code of Civil Procedure, the party against which an order was made under Rule 98 was authorised to institute a suit to establish the right, which it claimed to the present possession of the property.
The order, in the instant case, was made against the plaintiff under Rule 98 and, therefore, he had brought the present suit to establish his right under which he claimed to be in possession of the property. He may or may not succeed in doing so, but that is a matter, which would be determined by the Court where the suit was brought and that would be done after referring to the evidence produced by the parties in the case. Learned counsel could not show as to why the plaintiff was bound to implead the A. P. P. Sabha to the suit. It was suggested that if the plaintiff failed to prove that the A. P. P. Sabha was the owner of this house, the said Sabha would not be bound by the litigation, as it was no party to it. Learned counsel, however, could not point out that the non-impleading of the A. P. P. Sabha in the present suit prevented the plaintiff in a suit under this rule to establish the right, which he claimed to the present possession of the property.
13. In this view of the matter, it is needless to discuss the other contentions raised by the learned counsel for the appellant before me at this stage.
14. Under these circumstances, I would remit the case to the learned District Judge for giving a finding on issue No. 1. Since the case is being sent back to him, it would be proper if the learned Judge also gives a finding on issue No. 3 as well. He should give these findings after hearing the parties, but on the evidence already recorded in the case. His report should reach this Court within two months. Parties have been directed to appear before him on 19-4-1971.
15. Appeal allowed.