The Division Bench of the Supreme Court consisting of Justices M.R. Shah and B.V. Nagarathna held that as per O21R101 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 O21R97 OR R99 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. O21R97 is with respect to resistance/obstruction to possession of immovable property.
Facts
A land was acquired by BDA u/s 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 u/s 19 of the 1976 Act. Award came to be passed with compensation. As per the appellant – BDA, possession of the acquired land was taken over by the Government and was handed over to the Engineering Section of BDA. Thereafter, a notification u/s 16(2) of the Land Acquisition Act, 1894 came to be issued evidencing the factum of taking possession of the acquired land. 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.
Procedural History
The respondent no.1 filed a civil suit against respondent no.2 before the City Civil Court, Bangalore for ejectment. In the said suit, the appellant-BDA was not arrayed as a party. The Trial Court dismissed the said suit. However, the High Court allowed the Regular First Appeal filed by respondent no.1 and consequently decreed the suit filed by respondent no.1. Respondent No.2 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. Thereafter, respondent no.1 filed Execution Petition. Having come to know of the judgment and decree passed by the High Court allowing the appeal, the appellant-BDA filed a suit before the City Civil Court, Bangalore, seeking a declaration that the lease agreement between respondent no.1 and respondent no.2 in respect of the suit schedule property is null and void and prayed for permanent injunction to restrain respondent no.1 from executing the decree passed.
BDA also filed two applications in the execution proceedings for impleadment and for deferring the execution proceedings till disposal of suit filed by it. The aforesaid two applications filed by BDA was rejected by the Executing Court 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 to the execution of the decree passed by the competent Court. Feeling aggrieved, the obstructor-BDA filed two writ petitions before the High Court, who dismissed the aforesaid two writ petitions. Hence, this appeal.
Contentions made
Appellant- While rejecting the applications filed by BDA to implead BDA in the execution petition as obstructor, both the High Court as well as the Executing Court misread and misinterpreted O21R97 r/w R101 CPC. For raising the obstruction 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. But in this case the possession was handed over by Government to BDA. Even the substantive suit filed by BDA to declare the agreement of lease between both parties is pending. So, the Executing Court ought to have allowed the impleadment application filed by BDA, who claims the title since the acquisition of the land under the 1976 Act. It was further submitted that O21R97 and R101 CPC are to be read together.
Respondent- It was submitted that according to the 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 respondent no.2, which is required to be handed over to respondent no.1, pursuant to the judgment passed by the High Court. It was submitted that as rightly observed by the Executing Court and confirmed by the High Court, 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 O21R97 CPC is liable to be dismissed and the same was rightly dismissed by the Executing Court and is rightly confirmed by the High Court.
Observations of the Court
The Court noted that the lease agreement between the decree holder and the judgment debtor is after the acquisition of the suit land. Therefore, it is the case on behalf of the BDA that such a transaction is null and void 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 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 O21R97or R99 CPC. They observed that:
“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 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 O21R101 CPC, the question relating to right, title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court.”
Judgment
The impugned judgment and order passed by the High Court dismissing the writ petitions filed by the BDA and order passed by the Executing Court dismissing the application filed by BDA for impleadment as well as dismissing obstruction application were quashed and set aside. The appellant is permitted to be impleaded in the execution proceedings. The Executing Court was directed to implead the 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 based on the acquisition of the suit property/land acquired under the provisions of the 1976 Act, in exercise of powers under O21R97 r/w R101 CPC. The aforesaid shall be completed within a period of six months from the date of receipt of a copy of the judgment. The instant appeals were allowed to the aforesaid extent.
Case Name: Bangalore Development Authority vs N. Nanjappa & Anr
Citation: Civil Appeal Nos. 6996-6997 OF 2021
Bench: Justice M.R. Shah, Justice B.V. Nagarathna
Decided on: 6th December 2021
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