MOHAMED MASTHAN versus SOCIETY, CONGREGATION, BROS. S. HEART AND ANR.

Citation: [2006] 3 S.C.R. 1 · Decided: 10-03-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Judgment (excerpt)

\ 
MOHAMED MASTHAN 
v. 
SOCIETY, CONGREGA TJON, BROS. S. HEART AND ANR. 
MARCH IO, 2006 
[S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.] 
Possession--D~termination-First party in possession of land on the 
strength of compromise decree between first party and second party-Decree 
A 
B 
not questioned-Subsequent suit, by the second party for declaration of C 
compromise decree as null and void, pending~Agreement of sale of land by 
second party to third party-Suit by third party, for specific performance of 
sale, decreed-Land not found in possession of second party-Possession 
delivered to third party under Order 21 Rufe 35 CPC-Dismissal of application 
of first party stating to. be in possession of the land-Pendency of suit lly first 
party seeking declaration of sale to third party as null and void-In Revision D 
Petition against dismissal of application of first party, High Court holding the 
suit filed by appellant as collusive and directed}oint trial of all the suits-On 
appeal, held: First party being in possession of the suit land in terms of the 
compromise decree, could not be dispossessed pursuantto decree in favour of 
the third party, unless the compromise decree is set aside-Correctness of the E 
decree passed in the suit filed by the third party can be decided only in the 
pending suits and.not by Executing Court-The pending suits directed to be 
tried jointly. 
The property in question was sold by the Superior General of the 
first respondent-society to one 'S'. After the death of the purchaser, his F 
wife sold the property to second respondent. Respondent-society filed a 
suit in 1987 praying for declaration of title, possession and consequential 
injunction. Therein a compromise was entered into and decree was passed 
in terms thereof. In 2003 second respondent filed a suit against the 
respondent-society on the ground that the compromise ·decree was null and 
void as the same was to her ignorance. The suit is still pending. Second G 
respondent entered into agreement for sale with the appellant. Appellant 
filed suit for specific performance. The suit was decreed and deed of sale 
was executed. In Execution Petition for obtaining possession, Central Nazir 
noticed that the property was not in possession of the second respondent 
H 
2 
SUPREME COURT REPORTS 
(2006] 3 S.C.R. 
A and hence possession was given to the appellant through Senior Bailiff who 
in his report had stated that the second respondent herein was not there. 
Respondent-society filed an execution application stating that they were 
actually in possession of the property. The same was dismissed. During 
pendency of the application, the Society had also filed two suits but the 
same were withdrawn. Thereafter Society filed a suit in 2003 and the same 
B is pending. Against dismissal of Execution Application Society filed 
Revision Petition. High Court went into the question of correctness of 
delivery of possession of the property and opined that decree passed in 
the suit of the appellant was collusive. It directed joint trial of all the suits. 
Hence the present appeal. 
c 
Disposing of the appeal, the Court 
HELD: l. The consent decree passed in 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 
D injunction has been passed in its favour. The Appellant herein in terms 
of the decree passed in his favour in 2003 in the suit filed by him and the 
purported sale deed pursuant thereto, 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 1987 is not set aside, and/ or the original suit 
of 2003 filed by the second respondent is not decreed, the possession of 
E the first respondent herein could not have been interfered with. The 
Central Nazir did notice that the schedule property was not in possession 
of the judgment - debtor in suit of 2003 filed by the appellant, but still 
the possession thereof was purported to have been taken through Senior 
Bailiff under Order 21, Rule 35 of CPC. Even the Senior Bailiff in his 
F report states that he went to the plaintifrs 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 CPC stated that 
it continued to be in po

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