Murti Shri Radha Krishna Parnami Mandir vs Des Raj

J.V. Gupta, J.—This revision petition is directed against the order of the executing Court dated August 31, 1987, whereby the decree-holder (the landlord) was ordered to restore the possession of 22 tin-sheets to the judgment-debtor within 15 days and if the tin-sheds are not found available, the decree-holder will make payment of Rs- 2,000 to the judgment-debtor.

At the time of the motion hearing, the operation of the impugned order was stayed on November 13, 1987, 1(3) The judgment-debtor tenant took on rent the vacant land surrounded by walls from the decree-holder. The judgment-debtor under the terms of the tenancy, was allowed to construct shed etc. to start manufacturing of soap therein. Later on ejectment application was filed against the tenant which was allowed. In the ejectment application, the tenant was proceeded ex parte. He applied for setting aside the ex parte eviction order, but the same was declined.

Thereafter application for execution was filed. The judgment-debtor raised objections thereto, but the same were dismissed. Even the revision petition against that order was dismissed by this -Court. Thereafter, the possession was delievered to the decree-holder with the aid of the Police on August 27, 1985. At that time, the material meant for preparation of soap was handed over to one Sunder Lal on superdari. The present application for restoration of the tin-sheets was filed on August 29, 1985. That application was resisted by the decree-holder on the ground that the tenant was not entitled to their restoration, nor those goods were ever delivered to the superdar. Only the goods given to the superdar were to be handed ever to the judgment-debtor. After the issues were framed and the parties were allowed to lead evidence, the executing court came to the conclusion that the walls and the tin-shed were existing at the time of the delivery of the possession and, therefore, the tenant was entitled to the restoration of the tin-sheets. According to the executing Court, the judgment-debtor in his statement has stated that there were 22 tin-sheets which the decree-holder had retained and on that basis, allowed the said 22 tin-sheets to be restored to the tenant.

The learned Counsel for the degree-holder Petitioner submitted that the tenant was not entitled to restoration of the tin-sheets, nor there was any such direction in the eviction order. He referred to Section 108(h) of the Transfer of Property Act, (hereinafter referred to as the Act), to contend that the lessee may even after the determination of the lease remove at any time whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth, provided he leaves the property in the state in which he received it. Thus, according to the learned Counsel, once the tenant was dispossessed from the demised premises, he was not entitled to anything which was attached to the earth. Moreover, argued the learned Counsel, there is nothing in the statement of the judgment-debtor that there were 22 tin-sheets. This is a misreading of his statement. In support of the contention; the learned Counsel relied upon T.N. Ramachandra Naidu v. T.R. Paramaswaran Nair 1970 RCR 692, wherein it was held that the superstructure becomes part of the demised premises and property of the landlord after the tenant is dispossessed from the rent premises.

After hearing the learned Counsel I find merit in this contention. Once the tenant was dispossessed from the demised premises, he was not entitled to the things which were attached to the earth as contemplated u/s 108(h) of the Act. Moreover, there was no such direction in the eviction order, nor at the time of the delivery, these goods were handed over to the superdar. In these circumstances, no such application for restoration was maintainable before the executing court.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside and the application for arestoration filed by the judgment-debtor is dismissed with no order as to costs.