Holding

A decree holder is entitled to actual physical possession only against the principal tenants bound by the decree; against sub‑tenants the decree confers only symbolic possession.

Summary

The plaintiffs, owners of a plot of land, leased it to the respondents who built a commercial complex and sub-let the shops. After the respondents defaulted on lease premium, the plaintiffs sued for arrears and eviction. The trial court decreed actual possession against the respondents and only symbolic possession against the sub‑tenants. The executing court attempted to evict the sub‑tenants physically, but the High Court held that the decree entitled the plaintiffs to only symbolic possession with respect to the sub‑tenants and set aside the eviction orders. On appeal, the Supreme Court affirmed that a decree holder may demand actual physical possession only from the principal tenants bound by the decree; against sub‑tenants the decree confers only symbolic possession, and the executing court cannot overrule the decree. Consequently, the appeals were dismissed.

Issues considered

Whether a decree holder can demand actual physical possession from sub‑tenants who are not parties bound by the decree.
Interpretation of CPC Order 21 Rules 35(1) and 36 regarding delivery of actual versus symbolic possession.
Effect of Section 108(h) of the Transfer of Property Act and the lease terms on the rights to possession and removal of buildings.
Whether the executing court can dismiss objection petitions of sub‑tenants and order their physical eviction contrary to the decree.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 35(1), s. Order 21 Rule 36
Transfer of Property Act, 1882s. Section 108(h)

Subjects

possessionsymbolic possessionactual possessionleasesub‑tenancyCPC Order 21Section 108evictiondecree execution

Judgment

A RATAN LAL JAIN AND ORS.
v.
UMA SHANKAR VY AS AND ORS.

JANUARY 30, 2002

B [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]

Code of Civil Procedure, 1908-0rder 21, Rules 35(1) and 36-Suit-
Decree for possession immovable property-Property occupied by sub-tenants--
C Delivery of possession-Held, decree holder not entitled to demand actual
physical possession from sub-tenants by evicting them but entitled to only
symbolic possession-Transfer of Property Act, 1882-S.108(h).

Plaintiff-appellants owners of certain plot of land created a lease deed
in favour of defendant-respondents. Respondents constructed a
D commercial complex consisting of shops on the leased land which were
let out to different tenants, some of whom sub-leased the shops to others.
Some of the sub-lessees had further inducted their own tenants.
Respondent-principal tenants committed default in payment of premium '
whereupon plaintiff-appellants filed a suit for recovery of arrears and for
eviction. Trial Court decreed the suit and ordered actual delivery of
E portion of property which were in possession of the respondents and only
symbolic possession to the extent occupied by the sub-tenants. However,
the Executing Court went beyond the decree and directed some of the sub-
tenants also to hand over actual physical possession of property by
dismissing their objection petitions. On revision, High Court held that the
F decree holders were only entitled to symbolic possession in respect of _._
portion of property owned by sub-tenants without actually evicting them.
Hence the present appeals by plaintiff-appellants.

Dismissing the appeals, the Court

HELD : I. High Court was justified in holding that the decree
G holders were entitled to execute the decree by demanding actual physical
possession only against the principal tenants and neither the objectors nor
any person holding the property on iheir behalf could be actually evicted.
[755-G-H[

2. Rule 35(1) of the Civil Procedure Code provides that where a
H 750
R.L. JAIN v. U.S. VY AS 751

decree is for the delivery of any immoveable property, possession thereof A
shall be delivered to the party to whom it has been adjudged, or· his agent,
by removing any person bound by the decree who refuses to vacate the
property, if it becomes necessary to do so. Rule 36 of the Code provides
that where a decree is for the delivery of any immoveable property in the
occupancy of a tenant or other person entitled to occupy the same and B
not bound by the decree to relinquish such occupancy, the court shall order
delivery to be made by affixing a copy of the warrant in some conspicuous
place on the property, and proclaiming to the occupant by beat of drum
or other customary mode, at some convenient place, the substance of the
decree in regard to the property. The former is known as actilal or physical
delivery of possession while the later is known as delivery of formal, or C
symbolic possession. In the latter case, the person in actual occupation is
not physically dispossessed from his possession of the decretal property.
Still delivery of possession in the manner contemplated by Rule 36 remains
delivery of formal or symbolic possession so far as the person in actual
possession is concerned but as against the person bound by the decree, it
amounts to actual delivery of possession. The rights of the person bound D
by the decree stand extinguished, he is removed from the property in the
eye of law and his right and entitlement whatever it may be qua the person
in actual posssession and not bound by the decree stand vested in the
decree holders. (756-8-C-D-E-F)
E
Juggobundhu Mukherjee and Ors., v. Rani Chunder Bysack, 1880 ILR
5 Calcutta 584 and Jayagopal Mundra v. Guiab Chand Agarwal/a and Ors.,
AIR (1974) Orissa 173, approved.

3. The Executing Court was not justified in dismissing the objection
petitions. In the instant case, the objectors were sub-tenants of principal F
tenants. They have further sub-let the shops and they are not in actual
possession. Nevertheless, the persons in actual possession are holding such
possession on behalf of the objectors. Objectors were therefore justified
in prefering the objection petitions. The Executing Court could not have
gone behind the decree and overruled the objections preferred by the G
objectors who invited the attention of the Executing Court to execute the
decree as it stands and not to physically throw them out though the decree
directs delivery of only symbolic possession in so far as the shops in their
occupation are concerned. The objectors were not rank trespassers but
entitled to hold the shops as sub-tenants of tenants in the shops though
they might have been so inducted in breach of the terms of the lease H
752 SUPREME COURT REPORTS [2002] 1 S.C.R.

A created by respondent in favour of tenants in shops. They are not the
persons bound by the decree. [757-F-G-H]

4. Clause (h) of Section 108 of the Transfer of Property Act, 1882 .,..
confers a right on the lessee to remove either during or even after the
determination of the lease, at any time whilst he is in possession of the
B property leased but not afterwards, all things which he has attached to
the earth which will include any building raised by him on the leased land.
However, such right is subject to a contract or local usage to the contrary.
In the present case, Clause 16 of the Lease Deed obliges the lessee to hand-
over, at the end of the lease, all the construction with fittings and with
C tenancy to the owners. So, at the end of the lease, the things attached to
earth by the tenants pass over to lessor-owners of land in accordance with
the contract. On determination of lease, as entered into between the parties
the consequences which follow are: (i) the lease of land comes to an end,
(ii) the ownership of building raised by principal tenants stand vested in
the lessor-owners of land, the building goes with the land, (iii) the principal
D tenants have to physically vacate the property, and (iv) the lessor-owners
stand subrogated in place of principal tenants. [756-G-H; 757-A-B-C)

Dr. A.K. Dhairyawan and Ors. v. J.R. Thakur and Ors., AIR (1958) SC
789, relied on.

E CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10235-
10241 of 1996.

From the Judgment and Order dated 6.2.96 of the Rajasthan High
Court in S.B.C.R.P. Nos. 951-957 of 1995.

F K.N. Nagpal for Rakesh Uttamchandra Upadhyay for the Appellants.

Shiv Pujan Singh and Ms. Nidhi Pandey for the Respondent Nos. 3-
12.

G The Judgment of the Court was delivered by

R.C. LAHOTI, J. Plot No. A-1-B, situated at Sawai Jaisingh Highway,
Banipark, Jaipur, is owned by plaintiff-appellants and admeasures 1545 sq.
yards. With effect from 31.1.1986, a lease in respect of 6100 sq. ft. area, out
of the total area of the said plot, was created by the plaintiff-appellants in
H favour of Smt. Shiv Kumari Vyas and Shri Uma Shankar Vyas (hereafter
R.L. JAIN v. U.S. VY AS [R.C. LAHOTI, J.] 753

referred to collectively as 'Vyas', for short) for a period of 51 years. The A
purpose of lease was to allow Vyas to construct basement and ground floor
on the leased land for the period of lease, that is, 51 years. The terms and
conditions of the lease are incorporated in a registered deed of lease executed
on 20.12.1986, wherefrom the relevant and material for the purpose of this
order, are extracted and reproduced hereunder:-
B
"xxx xxx xxx xxx

3. That the second party will be entitled to construct in the leased
premises according to his choice and in accordance with the law and
will construct shops in basement and on it ground floor and the
second party will make the stairs to go upstairs (Upper floor) to first C
party according to map.

4. That the lessees will construct shops on the leased property and
can sublet the shops to other persons on rent for the period less than
the period of lease and will be entitled to receive the rent and the D
lessors will not object to that.

16. That at the end of lease the second party will hand over all the
construction with fittings and with tenancy to first party and will
obtain a receipt for handing over and advance premium first party
will pay to second party without interest.
E
18. That if the second party commits default in payment of lease
premium for six months the lease will end automatically and resultingly
the first party will be entitled to lease amount from sub tenants and
possession will automatically revert to first party and the second party
will not have any objection in case the lease amount is obtained F
directly from sub tenants and if the money received from sub tenant
is less than lease premium then the rest of the amount by second
party or sub tenants. Lease will continue otherwise it will end.
22. That the lease premium of the lease i.e. for basement and ground
floor total will be Rs. 5.50 paise per sq. ft. per month and the lease G
premium could be increased after five years with mutual consent and
parties can make agreement for this.
24. That the ownership of the land which !s leased will be of first
party and second party will remain Lessees.
Note (a) That the leased property 6168 sq. ft. for underground and H
754 SUPREME COURT REPORTS [2002) I S.C.R. --
A ground floor on 6100 sq. ft. The lease premium is Rs. 5.50 paise per
sq. ft. per month i.e. basement for Rs. 2/- per month. Lease premium
and ground floor Rs. 3.50 paise per sq. ft. per month the first party
has given to second party for 51 years on lease which will be read
with the terms of above lease deed."
B Vyas constructed a commercial complex consisting of I 05 shops on the
leased land. They were let out to different tenants. It appears that sometime
in the year 1989, 28 tenants of Vyas sub-leased the shops in favour of others.
Some of these sub-lessees have further inducted their own tenants. Vyas
committed default in payment of premium (the term as used in the lease
deed) for more than six months whereupon the plaintiff-appellants filed a suit
C for recovery of arrears and for eviction imp leading Shri Uma Shankar & Smt.
Shiv Kumari, the tenants under the lease deed, as defendants. One of the
pleas taken in the written statement by the tenants was that the sub- tenants
and the tenants of sub-tenants in actual possession of the shops were necessary
parties to the suit. Applications under Order 7 Rule 11 and Order I Rule 10
D of CPC were also filed by the two defendants seeking rejection of the plaint
for non-joinder of necessary parties or in the alternative a direction for
impleadment of the sub-tenants. The applications were resisted by the plaintiffs
. and were rejected by the trial court forming an opinion that the sub-tenants
were not necessary parties to the suit. This order was upheld by the High
Court in Civi.J Revision No. 925 of 1991 decided on 4.11.1991. The suit was
E then tried between the parties as impleaded by plaintiffs. The trial court,
while deciding the suit, recorded the same finding on issue No. 7, relating to
suit being bad for non-joinder of necessary parties and held that as no relief
was sought for against the sub-tenants in the suit, they were not necessary

-
parties. To quote from the decision of the trial court, it was held, - "In the
F present suit no relief is sought against the sub-tenants nor cause of action is
there. If the defendants fail to pay the rent then the plaintiffs are entitled to
recover rent directly from the sub-tenants and thus they become their direct
tenants. The sub-tenants are inducted with the consent of the plaintiffs.
Therefore, it will be presumed that sub-tenants are the tenants of the plaintiffs
and though they will not be entitled to evict them in this decree but will be
G entitled to receive the rent directly. In this situation the rights of the sub-
tenants will not be affected by this suit." As the principal issue was decided
against the lessee-defendants, holding them to be defaulter and hence liable
to be evicted, the trial court passed a decree to the following effect:-

" ........... the suit of the plaintiffs is decreed with costs against the
H defendants. The plaintiffs will be entitled to possession from defendants
R.L. JAIN v. U.S. VY AS [R.C. LAHOTI, J.] 755
of those shops and land which is in actual possession of defendants A
and the remaining shops which are in possession of sub tenants they
will be entitled to only symbolic possession. The plaintiffs are entitled
to Rs. 33,686 per months as compensation for use and occupation
from the date of filing of the suit till recovery after paying the court
fees. The defendants are restrained that they will not demolish or to B
make unlawful construction in the disputed property, nor they will
alienate or transfer or sell through him or through their agent or
servant."
(underlining by us)

The abovesaid decree has achieved a finality. c
The plaintiff-appellants i.e. the decree holders put the decree to
execution. It appears that the decree holders were successful in securing
possession over 77 shops but could not execute the decree to the extent of
28 shops in possession of sub-tenants or tenants of sub-tenants. Out of these
28, seven persons, who were inducted as tenants or sub-tenants in the shops D
but had further parted with possession in favour of their own sub-lessees,
resisted delivery of possession by filing petitions under Section 47 read with
Order 21 Rule 97 of the CPC. These are the persons referable to shop Nos.
B-8, M-13, M-14, M-15, G-22, G-27 and G-37. The sub-tenants in actual
possession of the premises are Vijai Chaudhary, Arun Sharma, Tarun Agarwal, E
Bal Chand Purohit, Hitesh Arora, Virender Punia and Liladhar Gupta. By
order dated 27.7.1995, the executing court rejected the objection petitions
forming an opinion that the objectors were themselves the sub-tenants having
been inducted into possession of the respective shops in violation of the
terms of the lease deed and in any case they had further sub-let the respective
shops and being not themselves in actual possession, were not entitled to F
offer resistance to the delivery of possession to the decree holders. Seven
civil revisions were preferred by the seven objectors before the High Court
which have been allowed. The High Court has held that the persons in actual
possession of the property were holding the possession on behalf of the
objectors and their dispossession would certainly cause injury to the objectors. G
The decree passed in the suit directs symbolic possession being delivered by
the persons in possession other than the lessees to the decree holders and,
therefore, the decree holders were entitled to execute the decree by demanding
actual physical possession only against the principal tenants and while doing
so neither the objectors nor any person holding the property on their behalf
could be actually ejected. The decree holders have preferred these appeals by H
~

756 SUPREME COURT REPORTS (2002) I S.C.R.
---
A special leave feeling aggrieved by the revisional orders of the High Court.

Having heard the learned counsel for the parties, we are of the opinion
that the appeals are devoid of any merit and no fault can be found with the
view taken by the High Court. Rules 35 and 36 of Order 21 of the CPC are
~

-
relevant and clinch the issue arising for decision. Where a decree is for the
B delivery of any immoveable property, possession thereof shall be delivered
to the party to whom it has been adjudged, or his agent, by removing any
person bound by the decree who refuses to vacate the property, if it becomes
necessary to do so. (Rule 35, sub-rule 1). Where a decree is for the delivery
•
of any immoveable property in the occupancy of a tenant or other person )..

c entitled to occupy the same and not bound by the decree to relinquish such
occupancy, the court shall order delivery to be made by affixing a copy of
~

the warrant in some con·spicuous place on the property, and proclaiming to
the occupant by beat of drum or other customary mode, at some convenient
place, the substance of the decree in regard to the property. (Rule 36) The
former is known as actual or physical delivery of possession while the latter
D is known as delivery of formal or symbolic possession. In the latter case, the
person in actual occupation is not physically dispossessed from his possession
of the decretal property. Still delivery of possession in the manner contemplated
..
by Rule 36 remains delivery of formal or symbolic possession so far as the
person in actual possession is concerned but as against the person bound by
the decree, it amounts to actual delivery of possession. (See five-Judge Bench
E
decision in Juggobundhu Mulrerjee and Ors. v. Ram Chunder Bysack, (1880)
ILR 5 Calcutta 584 and Full Bench decision in Jayagopal Mundra v. Guiab
Chand Aganvalla and Ors., AIR (1974) Orissa 173. The rights of the person
bound by the decree stand extinguished, he is removed from the property in
~
the eye of law and his right and entitlement whatever it may be qua the f'

F person in actual possession and not bound by the decree stand vested in the
decree holder.

Clause (h) of Section 108 of the Transfer of Property Act, 1882 confers
a right on the lessee to remove either during or even after the determination
of the lease, at any time whilst he is in possession of the property leased but
G not afterwards, all things which he has attached to the earth which will
include any building raised by him on the leased land. However, such right
is subject to a contract or local usage to the contrary. In the present case,
'i -
Clause 16 of the Lease Deed obliges the lessee to hand-over, at the end of
the lease, all the construction with fittings and with tenancy to the owners.
H In the facts very similar to those before us, this Court held in Dr. A.K.
)
R.L. JAIN v. U.S. VY AS [R.C. LAHOTI, J.] 757
Dhairyawan and Ors. v. J.R. Thakur and Ors., AIR (1958) SC 789 that A
although under Section 108 ofthe)'.P. Act, the lessee had the right to remove
the building but by the co'}1ract he had agreed to handover the same to the
.. lessors without the right to receive compensation at the end of the lease. The
matter would be governed by the contract between the parties. Such a contract
did not transfer the ownership in the building to the lessors only while the B
lease subsisted. Obviously at the end of the lease, the things attached to earth
by the tenants pass over to lessor-owners of land in accordance with the
contract. On determination of lease, as entered into between the parties the
consequences which follow are: (i) the lease of land comes to an end, (ii) the
ownership of building raised by prii:icipal tenants stand vested in the lessor-
owners of land, the building goes with the land, (iii) the principal tenants C
have to physically vacate the property, and (iv) the lessor-owners stand
subrogated in place of principal tenants.

In the earlier part of the judgment we have extracted and reproduced
the relevant terms of the lease. 'Vyas' were inducted into possession of the
land as tenants with permission from the owners of the land to raise D
construction, also to induct tenants in the shops constructed by them on the
_,. leased property but the duration thereof could not extend beyond 51 years
from the date of the lease. In the event of default by the tenant, i.e., the
'Vyas' in payment of lease premium for six months, the lease would be
terminated by forfeiture entitling the owners of the property to recover lease E
amount from the sub-tenants in possession directly. The objectors are sub-
tenants of the tenants in the shops. They have further sub-let the shops and
they are not in actual possession. Nevertheless, the persons in actual possession
are holding such possession on behalf of the objectors. Objectors were therefore
justified in preferring the objection petitions. The Executing Court was not
right in dismissing the petitions for two reasons. Firstly, the Executing Court F
could not have gone behind the decree and overruled the objections preferred
by the said seven objectors who invited the attention of the Executing Court
to execute the decree as it stands and not to physically throw them out though
the decree direc~s delivery of only symbolic possession in so far as the shops
in their occupation -are concerned. Secondly, the objectors were not rank G
trespassers but entitled to hold the shops as sub-tenants of tenants in the
shops though they might have been so inducted in breach of the terms of the
lease created by 'Vyas' in favour of tenants in shops. Whether they were
authorized or unauthorized sub-tenants is a question that has not been
adjudicated upon so far and will be decided in appropriate proceedings wherein
they would be parties. The fact remains that they are not the persons bound H
758 SUPREME COURT REPORTS [2002] I S.C.R.

A by the decree. 'Vyas', the tenants of the land had insisted on the sub-lessees
of the shops and further sub-lessees in actual possession being joined as
'
parties to the suit but the plaintiffs resisted such prayer and were successful
in their resistance. Conscious of these facts and the relevant law, the Trial
• ....
Court passed a decree taking care to specify that actual possession shall be
delivered to the decree-holders only on such part of the property as would be
B in actual possession of the defendants before it; so far as the remaining shops
are concerned which are not in actual possession of the tenants of the plaintiff-
decree-holders but in actual possession of the sub-tenants, the mode of
execution of decree would be by delivering only symbolic possession. The
High Court has rightly allowed the revisions preferred before it and made ~

c direction which is in accordance with law. ._
The appeals are devoid of any merit and are dismissed though without
any order as to costs.

S.V.K.I. Appeals dismissed.
D
...,_

r