B. GANGADHARversusB.G. RAJALINGAM

                           B. GANGADHAR                                       A
                                         v.
                          B.G. RAJALINGAM

                              MAY 12, 1995

         [K. RAMASWAMY AND S. SAGHIR AHMAD, JJ.]
                                                                              B

      Code of Civil Procedure 1908

      Order 21 Rules 35(3).101-Execution proceedings-Questions relating
to right, title or interest in the property-Executing Court mandated to       C
decide-Not by way of a separate suit-Tenant need not eonominee be
impleaded as party defendant-Nor is it an impediment to remove obstruction
put up by them to deliver possession to the decree holder.

       The petitioner was a judgment-debtor. Respondent laid a suit for
declaration of title to and possession of a certain property. The trial Court D
issued the declaration and directed the petitioner to hand over the vacant
possession to the respondent. 111e decree had become final. When the
warrant was issued execution for delivery of possession the bailiff returned
it on the ground that the petitioner bad constrncted shops and inducted
tenants into possession and that therefore he could not execute the war- E
rant. On an application from Respondent, the executing court directed
bailiff by warrant to demolish the shops and to deliver vacant possession
to Respondent. Revision preferred by the petitioner was dismissed.

       In this Special Leave Petition, the petitioner contended that in the
absence of mandatory injunction granted in the decree the executing court     F
was devoid of power and jurisdiction to direct demolition of the shops
constrncted by the petitioner and that the tenants in possession being
eonomlnee parties to the decree, they were not bound by the decree of the
trial Court and therefore the direction to dispossess them was illegal.
                                     •                                        G
      Dismissing the Special Leave Petition, this Court

       HELD : 1. 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 obstniction or hindrance is caused for its enjoy-
ment or use, the owner, of necessity, bas the remedy to have it removed. If H
                                     535
    536                   SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

A 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 tortous remedy of separate suit seeking man-
    datory injunction or for possession so as to avoid delay in execution or
B   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 indncted tenants in possession
C   without permission of the court. The only course would be to decide the
    dispute in the execution proceedings and not by a separate snit. [539-F-H]

         Halsbury's Laws of England, IV Ed. Vol.35 paragraph 1211, 1214 :
    Black's Law Dictionary VI ED, referred to.

D       2. 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 posses-
  sion was directed to be done, the court executing the decree is entitled to
  pass such incidental, ancillary or necessary orders for effective enforce-
  ment of the decree for possession. That power also includes the power to
E remove any obstruction or super-structure made pendente lite. The exercise
  of incidental, ancillary or inherent power is consequential to deliver pos-
  session 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
F law in his hands and made any constructions on the property pending snit,
  the decree-holder is not bound by any such construction. The relief of
  mandatory injunction, therefore, is consequential to or necessary for effec-
  tuation of the decree for possession. It is not necessary to file a separate
  suit when the construction was made pending suit without permission of
G the court. Otherwise, the decree becomes inexecutable driving the plaintiff
  again for another round of litigation which the Code expressly prohibits.
                                                                    [5411-D-F]
        3. 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
H through him, he is bound by the decree and that, therefore, the tenant need
                      B. GANGADHAR v. B.G. RAIALINGAM                      537

     not eonominee be impleaded as a party defendant to the suit nor it be an A
     impediment to remove obstruction put up by them to deliver possession
     to the decree-holder. 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 B
     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. [540-H, 541-A-B]

          CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
     No. 10546 of 1995.                                                          C
          From the Judgment and Order dated 17.2.1995 of the Andhra
     Pradesh High Court in C.R.P.No. 496 of 1994.

           Subodh Markandeya and Ms. Chitra Markandaya for the Petitioner.
                                                                                 D

--         The following Order of the Court was delivered :

          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. E
     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 F
     decree had become final. When warrant was issued in execution for
     delivery of possession, the bailiff 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 G
     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.                                                                         H
    538                   SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A           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 cen-
    structed by the petitioner. The second contention is that the tenants ·in
    possession being not eonominee parties to the decree, are not bound by
B   the decree of the trial court and, therefore, the direction to dispossess them
    is illegal. The courts below have rightly rejected both the contentions.

          Order 21 Rule 101 provides that :

                 "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 repre-
             sentatives, 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, not-
D            withstanding 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."

           The executing court, therefore, is mandated to decide all questions
E   relating to right, title or interest in the property in the execution proceed-
    ings and not by way of a separate suit, notwithstanding anything contained
    contrary in any other law of the time being in force. Halsbury's Law of
    England, !Vth Ed., Vol. 35 in paragraph 1214 at page 735, the word
    'possession' is used in various contexts and phrases, for example, in the
F   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 pos-
  session is ordinarily associated with de facto possession; but legal posses-
  sion may exist without de facto possession, and de facto possession is not
G 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
H or legal possession, and different persons at the same time in virtue of
                  B. GANGADHAR v. B.G. RAJALINGAM                         539

different proprietary rights.                                                    A

       In Black's Law Dictionary, Vlth 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    B
 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        c
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            D
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             E
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 pe11de11te    F
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            G
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. Admit-
tedly, pending suit the petitioner had constructed shops and inducted
tenants in possession without permission of the court. The only course           H
    540                   SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A   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
B           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
C           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
D   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 posses-
    sion of the property in execution of the decree. No doubt, the decree does
    not contain a mandatory injunction for demolition. But when the decree
E   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 man-
    datory injunction, therefore, is consequential to or necessary for effectua-
    tion of the decree for possession. It is not necessary to file a separate suit
F   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 multipl!city of proceedings.

          It is also not necessary that the tenant should be made party to the
G 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
H impleaded as a party defendant to the suit nor it be an impediment to
                  B. GANGADHAR v. B.G. RATALINGAM                    541

remove obstruction put up by them to deliver possession to the decree. A
What is relevant is only a warning by the bailiff to deliver peaceful posses-
sion and, if they cause obstruction, the bailiff is entitled to remove the
obstruction; cause the construction demolished and deliver vacant posses-
sion 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 B
of law in directing demolition of shops and delivery of the possession to
the decree holder.

       The S.L.P. is accordingly dismissed.

G.T.                                                  Petition dismissed.