Order XXI Rule 101 CPC- The question relating to right, title or interest in a Property Suit is required to be adjudicated upon by the Court dealing with such an Application: Supreme Court of India

 REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6996 6997 OF 2021 Bangalore Development Authority N. Nanjappa and another JUDGMENT M.R. SHAH J 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 2015by which the High Court has dismissed the said writ petitions preferred by the original applicant Bangalore Development Authoritythe BDA has preferred the present appeals The facts leading to the present appeals in a nutshell are as under That land admeasuring 01 acre 15 guntas 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 1976of 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 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 landownerdecree holder from executing the decree passed in O.S. No. 3797 2000 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 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 misinterpreted Order XXI Rule 97 r w Rule 101 CPC. 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 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. 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 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 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 3.5 Making the above submissions it is prayed to allow the present 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 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 5. We have heard the learned counsel for the respective parties at 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 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 the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained Question to be determined All questions 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.” 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 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 adjudicated upon by the Executing Court 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 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 adjudicate upon 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 CPC. The aforesaid shall be completed within a period of six months from the date of receipt of a copy of this judgment 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 NEW DELHI DECEMBER 06 2021

Summary: 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. This was observed by Hon’ble, Mukeshkumar Rasikbhai Shah, J in the matter of Bangalore Development Authority vs. N. Nanjappa and another – [Criminal Appeal No. 6996-6997 of 2021]. In the present case, a land (disputed land in question) was acquired by BDA under Section 17 of the Bangalore Development Authority Act, 1976. 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 entered into an agreement of lease with respondent no.2 herein in respect of part of the land in question. That respondent no.1 thereafter filed a civil suit against respondent no.2 before the City Civil Court, Bangalore for ejectment, which was dismissed by the Trial Court. Having come to know of this decree, the appellant-BDA filed a suit before the City Civil Court, Bangalore, seeking a declaration that the lease agreement between the respondents herein is null and void and prayed for permanent injunction to restrain respondent no.1 from executing the decree. BDA filed two applications in the execution proceedings but these came to be 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 or object to the execution of the decree passed by the competent Court. Feeling aggrieved and dissatisfied, the obstructor-BDA filed two writ petitions before the High Court were dismissed. Hence, the present appeals were filed in the Supreme Court. The learned Counsel appearing on behalf of the appellant submitted that while rejecting the applications filed by BDA, both, the High Court as well as the learned Executing Court have misread and misinterpreted Order XXI Rule 97 r/w Rule 101 CPC. It was 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. It was submitted that in the present case the property/land in question has already been acquired by BDA and even the award was also declared and the possession of the land in question was already taken over and thereafter illegally respondent no.1 entered into agreement of lease with respondent no.2. It was 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. The learned Counsel appearing on behalf of the respondent tried to support the orders passed by the High Court as well as the Executing Court submitted that though the land in question might have been acquired, unless and until the possession by the obstructionist is established and proved, an application under Order XXI Rule 97 CPC is liable to be dismissed. Supreme court after perusing the facts and arguments presented, held that – “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. 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 and therefore, such a transaction is null and void once the suit land for which the lease agreement was executed was acquired. 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 adjudicated upon by the Executing Court. 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. The Executing Court is directed to implead the appellant 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 11 CPC.”