BANGALORE DEVELOPMENT AUTHORITYversusN. NANJAPPA AND ANOTHER

                          [2021] 9 S.C.R. 351                              351


          BANGALORE DEVELOPMENT AUTHORITY                                  A
                                   v.
                 N. NANJAPPA AND ANOTHER
                (Civil Appeal Nos. 6996-6997 of 2021)
                        DECEMBER 06, 2021                                  B
         [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Code of Civil Procedure, 1908: Or.XXI r.97 r/w s.151 CPC –
Resistance/obstruction to possession of immovable property – Case
of appellant-BDA was that the land in question was acquired by it
                                                                           C
under the provisions of 1976 Act and award was declared and
notification for taking over possession was also published –
Seventeen years after vesting of acquired land in favour of BDA,
an agreement of lease in respect of part of said land was entered
into by respondent no.1 as lessor with respondent no.2 – Respondent
no.1 thereafter filed suit for ejectment of respondent no.2 in which       D
BDA was not arrayed as party – Suit was decreed and attained
finality – Respondent no.1 (decree holder) filed execution petition
– Having come to know of the decree, BDA filed separate suit seeking
declaration that the lease agreement between respondent no.1 and
no.2 was null and void and also prayed for permanent injunction
                                                                           E
to restrain respondent no.1 from executing decree – BDA also filed
two applications u/Or.XXI r.97 r/w s.151 in the execution proceedings
till disposal of separate suit filed by it – Executing court rejected
the applications – Writ petitions filed by BDA were also dismissed –
Hence instant appeals – Held: As per Or.XXI r.101, all questions
including questions relating to right, title or interest in the property   F
arising between the parties to a proceeding on an application
u/Or.XXI r.97 or r.99 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
– Appellant-BDA had submitted the obstruction/objection in the
                                                                           G
execution proceedings filed by the decree holder against the
judgment debtor with respect to suit land which was acquired by
BDA – When the BDA claimed right, title or interest in the suit


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                                  351
352            SUPREME COURT REPORTS                       [2021] 9 S.C.R.


A     property, such obstruction/objection was required to be adjudicated
      upon by the executing court while considering the application/
      obstruction u/Or.XXI r.97 or r.99 – Bangalore Development Authority
      Act, 1976.
            Allowing the appeals, the Court
B            HELD : 1. 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
C     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.
      [Para 5.1][357-F-G]
             2. It is the specific case of the appellant – BDA that pursuant
D     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
E     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 this case, a substantive
      suit filed by the BDA against the decree holder and the judgment
      debtor to declare the lease agreement as null and void is pending,
F     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. The appellant is permitted to be impleaded in
      the execution proceedings. The Executing Court is directed to
      implead the appellant – BDA in the execution petition and
G     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
H     CPC. [Paras 6, 7][357-G-H; 358-A-C; 358-E-F]
BANGALORE DEVELOPMENT AUTHORITY v. N. NANJAPPA                                 353
                AND ANOTHER

       CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6996-                  A
6997 of 2021.
       From the Judgment and Order dated 21.03.2016 of the High Court
of Karnataka at Bengaluru in Writ Petition Nos.37943-944 of 2015 (GM-
CPC).
       S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni, Ms. Uditha         B
Chakravarthy, Advs. for the Appellant.
       Rajesh Mahale, Sampat Anand Shetty, Rameshwar Prasad Goyal,
Advs. for the Respondents.
       The Judgment of the Court was delivered by
       M. R. SHAH, J.                                                          C
       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’)        D
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 preferred
the present appeals.
       2. The facts leading to the present appeals in a nutshell are as        E
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       F
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
                                                                               G
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           H
354             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     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.
B
             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
C     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
D     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-
E     original landowner–decree 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
F     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
G     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-
H     37944/2015. By the impugned judgment and order, the High Court has
BANGALORE DEVELOPMENT AUTHORITY v. N. NANJAPPA                                   355
          AND ANOTHER [M. R. SHAH, J.]

dismissed the aforesaid two writ petitions. Hence, the present appeals           A
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               B
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           C
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               D
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.                                                          E

      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
Court ought to have allowed the impleadment application filed by BDA,            F
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   G
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
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356             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     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
B     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 –
      original landowner, the actual possession of the land in question has not
C     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
D     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
E     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
F     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
G     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
H
BANGALORE DEVELOPMENT AUTHORITY v. N. NANJAPPA                                     357
          AND ANOTHER [M. R. SHAH, J.]

which was acquired by BDA and when the BDA claims right, title or                  A
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:
                                                                                   B
       “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.                        C

       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         D
       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          E
       any other law for the time being in force, be deemed to have
       jurisdiction to decide such questions.”
       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              F
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.                                                                          G
      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
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358              SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     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
B
      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.
            6.1 In view of the above, the order passed by the Executing Court
C     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
D     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
E     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
F     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.
            8. The instant appeals are allowed to the aforesaid extent.
      However, in the facts and circumstances of the case, there shall be no
G     order as to costs.


      Devika Gujral                                                 Appeals allowed.


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