Vishwanath vs Sampat Kumar and Others

Veerender Singh Siradhana, J.—In the instant writ application, the petitioner/defendant seeks to challenge the legality, validity and correctness of the orders dated 28th May, 2011 and 27 August, 2011 passed by the learned Court below in execution proceedings.

Briefly, the essential material facts necessary for adjudication of the controversy raised are : That the plaintiff/respondent filed a suit for mandatory and permanent injunction as well as recovery of possession of the land as a consequence of partition of the ancestral properties on 4th April, 1970. The respondent/plaintiff also prayed for permanent injunction restraining the petitioner/defendant from raising any obstruction to the windows of the shop opening in the Eastern side. The petitioner/defendant filed the written statement and denied all the averments made in the plaint. The learned Trial Court dismissed the suit vide order dated 19th January, 1996. However, vide order dated 17th January, 2002; the learned first Appellate Court partly allowed the appeal decreeing the suit of the respondent/plaintiff with a declaration to the effect that common wall measuring 20 feet in length and 1 feet 10 inches in width; as joint property of the respondent/plaintiff and the petitioner/defendant and therefore, they were entitled to enjoy the property to the extent of one and half of the width of the wall. Permanent injunction was also granted with respect to the windows of the shop opening on the Eastern side in favour of the petitioner/defendant. The petitioner/defendant unsuccessfully challenged the judgment and decree passed by the first Appellate Court in S.B. Civil Second Appeal Number 105 of 2003, which was dismissed vide order dated 1st August, 2007. During the course of execution proceedings, on an application moved under Section 151 of the Civil Procedure Code (for short, ''CPC''), on behalf of the respondent/plaintiff, the learned Executing Court passed the impugned order dated 28th May, 2011 to remove the stair-case constructed by the petitioner/defendant after filing of the suit. The petitioner/defendant/judgment-debtor filed an application under Order 21 Rule 35 read with Section 151 CPC for measurement and identification of the property for which decree was passed and questioned the execution proceedings on the ground of want of identification of the property in dispute. The Executing Court vide order dated 27th August, 2011 declined the application taking note of the contents of the application and the order dated 28th May, 2011 as well as the response to the application on behalf of the respondent/plaintiff/decree-holder, wherein it was specifically pointed out that the petitioner/defendant made encroachment by demolishing the wall measuring 20 feet in length and 1 feet and 10 inches in width.

The learned counsel for the petitioner/defendant, to buttress his submissions, placed the reliance on the opinion of the Hon''ble Supreme Court in the case of Shafiqur Rehman Khan & Anr. v. Smt. Mohammad Jahan Begum & Ors. : (1982) 2 SCC 456 and Bhagwati Prasad Hajela Vs. Bishambhar Nath Singh Kapoor, .

Per contra, the learned Senior Counsel, Mr. M.M. Ranjan, appearing on behalf of the respondent/plaintiff/decree-holder supporting the impugned orders, argued that the petitioner/defendant made an attempt, with a view to obstruct to the execution proceedings, by putting up a construction pendente lite. Further, the Executing Court would be justified to order for removal of the unlawful or illegal construction raised pendente lite so that the decree for possession or eviction, as the case may be, is effectually and completely executed, as has been held by the Hon''ble Apex Court of the land in the case of B. Gangadhar Vs. B.G. Rajalingam, . Thus, the learned Executing Court committed no illegality or error apparent on the face of record in directing removal of the staircase, in order to restore possession to the decree-holder. Therefore, the said direction in execution of the decree is not without jurisdiction and hence, the impugned orders call for no interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as the impugned orders dated 28th May, 2011 and 27th August, 2011.

It is not in dispute that the judgment and decree has attained finality and has not been questioned any further after dismissal of S.B. Civil Second Appeal Number 105 of 2003 on 1st August, 2007. In the case of Shafiqur Rehman Khan (supra), referred to and relied upon by the learned counsel for the petitioner/defendant, the Hon''ble Supreme Court has held that the Executing Court will determine the identity of the property in regard to which a decree was obtained under execution.

Further, if the identity of the property is established, the decree will be executed. However, it is open to the judgment-debtor to show that the decree is incapable of execution for want of proper identification of the property in dispute. In the case of Bhagwati Prasad Hajela (supra), the Allahabad High Court dealt with the issue of prosecution of the Executing Court to direct delivery of the possession through a Commissioner and the facts of the present case are entirely different than that of the case referred and therefore, the opinion has no relevance and application to the facts of the case at hand. Moreover, in the instant case at hand, the construction has been raised pendente lite, as no such facts were even pleaded by the petitioner/defendant during the suit proceedings till final adjudication.

In the present case, the identity of the property is not in dispute but for the averments made to the effect that in place of the wall, stair-case in existence, which according to the respondent/plaintiff/decree-holder has been raised pendente lite in order to obstruct the execution of the decree.

A bare perusal of Order 21 Rule 35(3) CPC would reveal that the Executing Court is entitled to issue incidental, ancillary or necessary orders for effective enforcement of the decree for possession and that power also includes the power to remove any obstruction or super-structure made pendente lite, as has been held by the Hon''ble Supreme Court in case of B. Gangadhar (supra). The Hon''ble Supreme Court while dealing with the somewhat similar controversy held thus:--

"5. 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 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:

"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 women 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".

Rule 35(3) of Order 21 C.P.C. 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 superstructure 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 proceedings."

From the principle propounded by the Hon''ble Supreme Court and having regard to the facts, circumstances and materials available on record, I do not find any illegality or error apparent on the face of record so as to warrant interference by this Court, in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The writ application is devoid of any substance and deserves to be dismissed. Ordered accordingly.

In the result, the writ application is hereby dismissed. In view of the final adjudication of the writ application, the stay application stands closed. However, in the facts and circumstances of the case, there shall be no order as to costs.