SHAMSHER SINGH & ANR. versus LT. COL. NAHAR SINGH (D) THR. LRS. & ORS.

Citation: [2019] 9 S.C.R. 1155 · Decided: 29-07-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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     SHAMSHER SINGH & ANR.
v.
LT. COL. NAHAR SINGH (D) THR. LRS. & ORS.
      (Civil Appeal No. 5632 of 2019)
JULY 29, 2019
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Code of Civil Procedure, 1908:
Or. XXI,  r. 101 – Scope of – Pursuant to a court decree
possession of the property in question given to the decree-holders,
after dispossessing the respondent – Respondent filed application
before Executing Court complaining of his dispossession, claiming
to be in adverse possession of the property – Executing Court
rejected the application, holding that the respondent-applicant failed
to prove his title on the property – In First Appeal, High Court set
aside the order of Executing Court and directed to put back the
respondent into possession of the property – Appeal to Supreme
Court – Held: After the 1976 amendment in rule 101 of Order XXI,
an applicant is required to prove not only his bonafide possession,
but also his right, title and interest in the property, to be put back in
possession – Therefore, there was no error in the order of
Executing Court – High Court committed error in allowing the
appeal.
Allowing the appeal, the Court
HELD: 1. The scope and ambit of Rule 101 of Order XXI
of CPC prior to amendment of CPC was entirely different as
compared to Rule 101 as was brought into statute after 1976
amendment. Earlier a person who was a bona fide claimant and
who satisfied that he was in possession of the property on his
own account or on account of some other person then the
judgment-debtor could have been put in possession of the
property on an application under Rules 100 and 101, whereas
now after the amendment for putting back into possession an
applicant has not only to prove that he is in bona fide possession,
rather he has to prove his right, title or interest in the property.
What was earlier to be adjudicated in a suit under unamended
[2019]  9 S.C.R. 1155
            1155
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SUPREME COURT REPORTS
[2019] 9 S.C.R.
Rule 103 is now to be adjudicated in Rule 101 itself, thus, for
being put in possession, an applicant has to prove his right, title
or interest in the property and by simply proving that he was in
possession prior to the date he was dispossessed by
decree-holder, he is not entitled to be put back in possession.
Thus, In view of the statutory scheme which is delineated by
amended provisions of Rule 101, it cannot be said that by simply
proving the fact that the respondent was in possession prior to
he being dispossessed by decree-holder, he should be put back
in   possession. The respondent-applicant had to prove his right,
title or interest in the property to be put back in possession.
[Paras 14, 16 and 17] [1164-A-B, G; 1165-A-B]
2. All issues between the parties in application under
Order XXI Rules 99, 100 and 101 need to be examined by
Executing court and decided. The use of the words “all ques-
tions (including the questions relating to right, title or interest in
the property) arising between the parties to a proceeding on an
application under Rule 97 or Rule 99 …………” has to be given
meaning and full play. Prior to Amendment, 1976, under Rule
103, the aggrieved party could have brought a suit for
determination of rights between them but by Amendment, 1976,
Rule 103 has been amended. The purpose of amendment under
Rule 103 is also that any adjudication made under Rule 101 shall
have same force and be subject to the same conditions as to an
appeal or otherwise as if it was a decree.  Rule 101, thus, affords
an opportunity to get all issues relating to right, title or interest
in the property to be determined.  When respondent No.1 filed
his application claiming to be put back into possession, it was
obliged to establish its right, title or interest in the property
without which his application could not have been allowed.  The
Executing Court has considered the application of respondent
No.1 in right perspective and has clearly held that respondent
No.1 failed to prove his title by adverse possession, hence
application deserves to be rejected. [Paras 25, 26 and 27]
[1173-C-H]
3. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100 and 101,
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the Court is not to decide such question. The High Court, was
not correct in holding that the title in respect of the property by
way of adverse possession need not be gone into in the appeal
before it.  In the proceeding under Order XXI Rules 99, 100 and
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