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PETITIONER: B. GANGADHAR

       Vs.

RESPONDENT: B.G. RAJALINGAM

DATE OF JUDGMENT12/05/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMAD SAGHIR S. (J)

CITATION:  1996 AIR  780            1995 SCC  (5) 238  JT 1995 (5)   630        1995 SCALE  (4)549

ACT:

HEADNOTE:

JUDGMENT:                     O R D E R      This petition  arises from  the  order  of  the  Andhra Pradesh High  Court  dated  17.2.1995  made  in  C.R.P.  No. 496/94.      The petitioner  is the  judgment-debtor. The respondent laid O.S.  No. 375/1985  for declaration of title to and for possession of  the property bearing No. 21-6-652 situated at Chelapura, Hyderabad.  By decree  dated January 25, 1991 the trial court  declared him  to the absolute owner of the suit property and  also directed the petitioner "his men, tenants to vacate  and hand  over vacant possession of the land held by the  petitioner".  The  decree  had  become  final.  When warrant was  issued in execution for delivery of possession, the pailiff  returned it  on the  ground that the petitioner had constructed  shops and  inducted tenants into possession and that, therefore, he cannot execute the warrant. Thereon, the respondent  filed an application under Order 21, Rule 98 read with  s.151 CPC  to issue  warrant to  the  bailiff  to demolish the shops constructed by the petitioner and deliver vacant possession  of the  suit house.  The executing court, after  enquiry,  by  its  order  dated  September  30,  1993 directed bailiff  by warrant  to demolish  the shops  and to deliver vacant  possession to the respondent. The petitioner carried the  order in  revision but  was unsuccessful.  Thus this SLP.      Two principal  contentions raised  all through are that in the  absence  of  mandatory  injunction  granted  in  the decree,  the   executing  court   is  devoid  of  power  and jurisdiction to  direct demolition  of the shops constructed by the petitioner. The second contention is that the tenants in possession being not eonominee parties to the decree, are not bound  by the  decree of the trial court and, therefore, the direction  to dispossess  them is  illegal.  The  courts below have rightly rejected both the cooperation      Order 21 Rule 101 provides that:

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<SLS>           "All questions (including 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 90 or      their representatives,  and relevant  to      the  adjudication  of  the  application,      shall be determined by the Court dealing      with  the   application  and  not  by  a      separate suit  and for this purpose, the      Court shall,  notwithstanding and not by      a separate  suit and  for this  purpose,      the   Court    shall,    notwithstanding      anything to  the contrary  contained  in      any other  law for  the  time  being  in      force, be deemed to have jurisdiction to      decide such questions." <SLE>      The executing  court, therefore,  is mandated to decide all questions  relating to  right, title  or interest in the property in  the execution  proceedings and  not by way of a separate suit,  notwithstanding anything  contained contrary in any  other law  for the  time being  in force. Halsbury’s Laws of  England, IVth Ed., Vol.35 in paragraph 1214 at page 735, the  word ‘possession’  is used in various contexts and phrases, for  example, in  the phrase ‘actual possession’ or ‘to take  possession’ or ‘interest in possession’ or ‘estate in possession’  or ‘entitled  in possession’.  In  paragraph 1211 at  page 732,  legal possession  has been  stated  that possession may  mean that possession which is recognised and protected as  such by  law. Legal  possession is  ordinarily associated with  de facto  possession; but  legal possession may  exist   without  de  facto  possession,  and  de  facto possession is  not always  regarded as  possession in law. A person who,  although having  no  de  facto  possession,  is deemed to  have possession  in law is sometimes said to have constructive possession.  In paragraph  1216 at  p.736 it is stated that  the right to have legal and de facto possession is a  normal but not necessary incident of ownership. Such a right may  exist with,  or apart  from, de  facto  or  legal possession, and different persons at the same time in virtue of different proprietary rights.      In Black’s  Law Dictionary, VIth Ed., the ownership has been defined  as "Collection  of rights  to  use  and  enjoy property,  including   right  to   transmit  it  to  others. Therefore, ownership  is de  jure recognition  of a claim to certain property. Possession is the objective realisation of ownership. It is the de facto exercise of a claim to certain property and a de facto counterpart of ownership. Possession of a  right is  the de facto relation of continuing exercise and  enjoyment  as  opposed  to  the  de  jure  relation  of ownership. Possession is the de facto exercise of a claim to certain property.  It is  the external  form in which claims normally manifest  themselves. Possession  is in  fact  what ownership is  in right  enforceable at  law to  or over  the thing. A  man’s property is that which is his own to do what he likes  with it.  Those things  are a man’s property which are the  object of  ownership on his part. Ownership chiefly imports the  right of  exclusive possession and enjoyment of the thing  owned. The  owner in  possession of the thing has the right  to exclude  all others  from the  possession  and enjoyment of  it. If  he is  wrongfully deprived  of what he owns, the owner has a right to recover possession of it from the person  who wrongfully  gets into  possession of it. The

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right to  maintain or  recover  possession  of  a  thing  as against all  others  is  an  essential  part  of  ownership. Ownership implies  not so much the physical relation between the person  and the thing as the relation between the person owning and  the thing  owned. Ownership  is pre-eminently  a right. The  right to ownership of a property carries with it the right to its enjoyment, right to its access and of other beneficial enjoyment  incidental thereto. If any obstruction or hindrance  is caused for its enjoyment or use, the owner, of necessity,  has the  remedy to  have it  removed. If  any obstruction is  raised by putting up a construction pendente lite or  prevents the  passage or  right to  access  to  the property pendente  lite, the  plaintiff has been given right and the  decree-holder is  empowered to  have it  removed in execution without  tortuous remedy  of separate suit seeking mandatory injunction  or for possession so as to avoid delay in execution  or frustration  and thereby defeat the decree. The executing  court, therefore, would be justified to order its  removal   of  unlawful  or  illegal  construction  made pendente lite so that the decree for possession or eviction, as the  case may be, effectually and completely executed and the delivery  of possession  is given  to the  decree holder expeditiously. Admittedly,  pending suit  the petitioner had constructed shops and inducted tenants in possession without permission of  the court. The only course would be to decide the dispute  in the  execution  proceedings  and  not  by  a separate suit.           Order 21, Rule 35(3) envisages that : <SLS>           "Where possession  of any  building      or enclosure  is to be delivered and the      person in possession, being bound by the      decree, does not afford free access, the      court, through  its officers, may, after      giving reasonable  warning and  facility      to any  woman not  appearing  in  public      according to  the customs of the country      to withdraw,  remove or open any lock or      bolt or  break open  any door  or do any      other  act  necessary  for  putting  the      decree-holder in possession." <SLE>      Rule 35(3)  of Order  21 itself  manifests that  when a decree for  possession of immovable property was granted and delivery of  possession was  directed to  be done, the court executing the  decree is  entitled to  pass such incidental, ancillary or  necessary orders  for effective enforcement of the decree  for possession.  That power  also  includes  the power to  remove any  obstruction  or  super-structure  made pendente lite.  The exercise  of  incidental,  ancillary  or inherent power is consequential to deliver possession of the property in  execution of  the decree.  No doubt, the decree does not  contain a mandatory injunction for demolition. But when the  decree for  possession had  become final  and  the judgment-debtor or  a person  interested or  claiming  right through the  judgment-debtor has  taken law in his hands and made any  constructions on  the property  pending suit,  the decree-holder is  not bound  by any  such construction.  The relief of  mandatory injunction, therefore, is consequential to  or   necessary  for   effectuation  of  the  decree  for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the  court.   Otherwise,  the  decree  becomes  inexecutable driving the  plaintiff again for another round of litigation which the  code expressly  prohibits  such  multiplicity  of

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proceedings.      It is also not necessary that the tenant should be made party to  the suit  when the  construction was  made pending suit and  the tenants  were inducted into possession without leave of  the court.  It is  settled law  that a  tenant who claims title,  right or interest in the property through the judgment debtor or under the colour of interest through him, he is  bound by  the decree  and that, therefore, the tenant need not  eonominee be impleaded as a party defendant to the suit not it be an impediment to remove obstruction put up by them to  deliver possession  to the decree. What is relevant is only  a warning   by  the  bailiff  to  deliver  peaceful possession and  if they  cause obstruction,   the bailiff is entitled to  remove the  obstruction; cause the construction demolished and  deliver  vacant  possession  to  the  decree holder in terms of the decree. Thus considered, we hold that the High  Court and  the executing  court have not committed any error  of law  in  directing  demolition  of  shops  and delivery of the possession to the decree holder.           The S.L.P. is accordingly dismissed.