Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6996-6997 OF 2021
Bangalore Development Authority …Appellant
Versus
N. Nanjappa and another …Respondents
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 21.03.2016 passed by the High Court of Karnataka at
Bengaluru in Writ Petition Nos. 37943-37944/2015 (GM-CPC), by which
the High Court has dismissed the said writ petitions preferred by the
original applicant – Bangalore Development Authority (for short, ‘BDA’)
and has confirmed the order passed by the Executing Court dismissing
the applications filed by BDA under Order XXI Rule 97 CPC in Execution
Case No. 2713/2012 filed by respondent No.1 herein (decree holder)
against respondent No.2 herein (judgment debtor), the BDA has
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.12.06
17:25:19 IST
Reason:
preferred the present appeals.
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2. The facts leading to the present appeals in a nutshell are as under:
That land admeasuring 01 acre 15 guntas (disputed land in
question) in Survey No. 12/2 of Geddalahalli Village was acquired by
BDA in the year 1977 under Section 17 of the Bangalore Development
Authority Act, 1976 (hereinafter referred to as the ‘1976 Act’). A final
notification came to be issued in respect of the said land vide notification
dated 02.08.1978 under Section 19 of the 1976 Act. Award came to be
passed vide award dated 12.06.1981 awarding compensation of
Rs.17,393.75. According to the appellant – BDA, possession of the
acquired land was taken over by the Government as per the mahazar
dated 16.07.1981 and was handed over to the Engineering Section of
BDA. Thereafter, a notification under Section 16(2) of the Land
Acquisition Act, 1894 came to be issued on 01.04.1982 evidencing the
factum of taking possession of the acquired land. It appears that after a
period of approximately 17 years and after vesting of the acquired land
in question in favour of BDA, respondent no.1 herein entered into an
agreement of lease with respondent no.2 herein in respect of part of the
land in question vide agreement of lease dated 16.08.1999. That
respondent no.1 herein thereafter filed a civil suit being O.S. No.
3797/2000 against respondent no.2 herein before the City Civil Court,
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Bangalore for ejectment. It is to be noted that in the said suit, the
appellant-BDA was not arrayed as a party.
2.1 The Trial Court vide judgment and decree dated 20.03.2008
dismissed the said suit. However, by judgment and order dated
13.06.2012, the High Court allowed the Regular First Appeal No.
468/2008 filed by respondent no.1 herein and consequently decreed the
suit filed by respondent no.1 herein. Respondent No.2 herein challenged
the judgment and order passed by the High Court before this Court by
way of special leave petition, which came to be dismissed by this Court
vide order dated 11.02.2013. Thereafter, respondent no.1 herein –
decree holder filed Execution Petition being E.P.No. 2713/2012. It
appears that having come to know of the judgment and decree passed
by the High Court allowing the appeal, the appellant-BDA filed a suit
being O.S. No. 2070/2013 before the City Civil Court, Bangalore,
seeking a declaration that the lease agreement between respondent
no.1 herein-decree holder and respondent no.2 herein – judgment
debtor vide agreement of lease dated 16.08.1999 in respect of the suit
schedule property is null and void and also prayed for permanent
injunction to restrain respondent no.1 herein-original landowner–decree
holder from executing the decree passed in O.S. No. 3797/2000.
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2.2 BDA also filed two applications under Order XXI Rule 97 read with
Section 151 CPC in the execution proceedings for impleadment and for
deferring the execution proceedings till disposal of suit filed by it being
O.S. No. 2070/2013. The aforesaid two applications filed by BDA came
to be rejected by the Executing Court vide common order dated
29.01.2015 mainly on the ground that there was no material on record to
show that pursuant to the acquisition, the BDA had taken possession of
the said land and therefore the BDA cannot obstruct or object to the
execution of the decree passed by the competent Court.
2.3 Feeling aggrieved and dissatisfied with the common order passed
by the Executing Court rejecting the applications filed by BDA under
Order XXI Rule 97 r/w Rule 101 CPC, the obstructor-BDA filed two writ
petitions before the High Court being Writ Petition Nos. 37943-
37944/2015. By the impugned judgment and order, the High Court has
dismissed the aforesaid two writ petitions. Hence, the present appeals
are at the instance of the obstructor-BDA.
3. Learned counsel appearing on behalf of the appellant-BDA has
vehemently submitted that while rejecting the applications filed by BDA
to implead BDA in the execution petition as obstructor, both, the High
Court as well as the learned Executing Court have misread and
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misinterpreted Order XXI Rule 97 r/w Rule 101 CPC.
3.1 It is submitted that for raising the obstruction/objection to the
decree which is sought to be executed, the obstructor need not be in
possession and it is enough that the obstructor claims title with respect
to the said property. Though in the present case it is the case of BDA
that possession was handed over by Government to BDA – Engineering
Section.
3.2 It is submitted that in the present case as such the property/land in
question has already been acquired by BDA and even the award was
also declared way back on 12.06.1981 and even according to BDA the
possession of the land in question was already taken over and was
handed over to the Engineering Section and thereafter even notification
under Section 16(2) of the Land Acquisition Act, 1894 was also issued
vesting the suit land absolutely with BDA and thereafter collusively
and/or illegally respondent no.1 herein entered into agreement of lease
with respondent no.2 herein.
3.3 It is submitted that as such in the present case even the
substantive suit filed by BDA being O.S. No. 2070/2013 to declare the
agreement of lease between the decree holder and judgment debtor is
null and void is pending. It is submitted that therefore the Executing
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Court ought to have allowed the impleadment application filed by BDA,
who claims the title on the basis of the acquisition of the land under the
1976 Act.
3.4 It is further submitted that Order XXI Rule 97 and Rule 101 CPC
are to be read together. It is submitted that as per Order XXI Rule 101,
all questions including questions relating to right, title or interest in the
property arising between the parties to a proceeding on an application
under Order XXI rule 97 or rule 99 or their representatives, and relevant
to the adjudication of the application, shall be determined by the
Executing Court dealing with the applications. It is further submitted that
while raising an obstruction/objection to the execution of the decree, the
obstructor need not prove his/its possession but when it claims right, title
or interest in the suit property, the same is required to be determined,
decided and/or adjudicated upon by the Executing Court in such an
application.
3.5 Making the above submissions, it is prayed to allow the present
appeals.
4. Learned counsel appearing on behalf of the respondents have
tried to support the orders passed by the High Court as well as the
Executing Court. It is submitted that according to the decree holder –
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original landowner, the actual possession of the land in question has not
been taken over by BDA and the possession of the land in question is
with the judgment debtor – respondent no.2 herein, which is required to
be handed over to respondent no.1 herein – decree holder, pursuant to
the judgment passed by the High Court. It is submitted that the
Executing Court rightly rejected the applications filed by BDA under
Order XXI Rule 97 CPC. It is submitted that as rightly observed by the
Executing Court and confirmed by the High Court that though the land in
question might have been acquired, unless and until the possession by
the obstructionist is established and proved, such an application under
Order XXI Rule 97 CPC is liable to be dismissed and the same was
rightly dismissed by the Executing Court and is rightly confirmed by the
High Court.
5. We have heard the learned counsel for the respective parties at
length.
At the outset, it is required to be noted that the BDA is claiming
right, title or interest in the land in question being acquired under the
provisions of the 1976 Act. It is required to be noted that the lease
agreement between the decree holder and the judgment debtor is
subsequent to the acquisition of the suit land. Therefore, it is the case
on behalf of the appellant – BDA that such a transaction is null and void
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once the suit land for which the lease agreement was executed was
acquired under the provisions of the 1976 Act. Moreover, the award was
also declared and a notification under Section 16(2) of the Land
Acquisition Act evidencing taking over possession of the land by BDA
was also published. Therefore, when the appellant-BDA which has
submitted the obstruction/objection in the execution proceedings filed by
the decree holder against the judgment debtor with respect to suit land
which was acquired by BDA and when the BDA claims right, title or
interest in the suit property, such obstruction/objection was required to
be adjudicated upon by the Executing Court while considering the
application/obstruction under Order XXI Rule 97 or Rule 99 CPC. At this
stage, Order XXI Rule 97 and Order XXI Rule 101 CPC are required to
be referred to and which read as under:
“97. Resistance or obstruction to possession of immovable property – (1)
Where the holder of a decree for the possession of immovable property or
the purchaser of any such property sold in execution of a decree is
resisted or obstructed by any person obtaining possession of the property,
he may make an application to the Court complaining of such resistance
or obstruction.
2. Where any application is made under sub-rule (1), the Court shall
proceed to adjudicate upon the application in accordance with the
provisions herein contained.
101. Question to be determined – 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 99 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
anything to the contrary contained in any other law for the time being in
force, be deemed to have jurisdiction to decide such questions.”
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5.1 Therefore, as per Order XXI Rule 101 CPC, all questions including
questions relating to right, title or interest in the property arising between
the parties to a proceeding on an application under Order XXI rule 97 or
rule 99 CPC and relevant to the adjudication of the application shall have
to be determined by the Court dealing with the application. For that a
separate suit is not required to be filed. Order XXI Rule 97 is with
respect to resistance/obstruction to possession of immovable property.
6. In the instant case, it is the specific case of the appellant – BDA
that pursuant to the acquisition of the land in question, the BDA has
become the absolute owner and the said land is vested in the BDA and
possession was already taken over by the BDA and the land was handed
over to the Engineering Section. Therefore, the applications submitted
by BDA for impleadment in the execution proceedings and the
obstruction against handing over the possession to the decree holder
were required to be adjudicated upon by the Executing Court by
impleading the BDA as a party to the execution proceedings. Though, in
the present case, a substantive suit being O.S. No. 2070/2013 filed by
the BDA against the decree holder and the judgment debtor to declare
the lease agreement as null and void is pending, irrespective of the
same, considering Order XXI Rule 101 CPC, the question relating to
right, title or interest of the BDA in the suit property was required to be
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adjudicated upon by the Executing Court.
6.1 In view of the above, the order passed by the Executing Court
dismissing the applications filed by the BDA for impleadment in the
execution proceedings and/or dismissing the obstruction application, and
the impugned order passed by the High Court, are unsustainable and the
same deserve to be quashed and set aside.
7. Accordingly, the present appeals succeed. The impugned
judgment and order passed by the High Court dated 21.03.2016
dismissing the writ petitions filed by the appellant herein – BDA and order
dated 29.01.2015 passed by the Executing Court dismissing the
application filed by BDA for impleadment as well as dismissing
obstruction application are hereby quashed and set aside. The appellant
is permitted to be impleaded in the execution proceedings. The
Executing Court is directed to implead the appellant herein – BDA in the
execution petition and thereafter adjudicate upon the
obstruction/objection raised by BDA including the question relating to
right, title or interest claimed by BDA in the suit land on the basis of the
acquisition of the suit property/land acquired under the provisions of the
1976 Act, in exercise of powers under Order XXI rule 97 r/w Rule 101
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CPC. The aforesaid shall be completed within a period of six months
from the date of receipt of a copy of this judgment.
8. The instant appeals are allowed to the aforesaid extent. However,
in the facts and circumstances of the case, there shall be no order as to
costs.
…………………………………J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
DECEMBER 06, 2021. [B.V. NAGARATHNA]