P. JANARDHANA RAO. versus KANNAN AND ORS.

Citation: [2004] SUPP. 5 S.C.R. 344 · Decided: 12-10-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
P. JANARDHANA RAO. 
v. 
KANNAN AND ORS. 
OCTOBER 12, 2004 
B 
[ASHOK BHAN AND S.H. KAPADIA, JJ.] 
Civil Procedure Code, 1908; Order 21 Rule 97: 
Suit for ejectment-Decreed by Court of Small Causes-Delivery of 
C possession resisted-:-petition for removal of obstruction-Allowed by execution 
Court on ground that no evidence of possession furnished by obstructionists-
Reversed by· High Court-On appeal, . Held: Obstructionists failed to produce · 
any evidence to show that they were in possession of suit property prior to · 
filing of ejectment suit-Apparently evidence has been created since filing of 
D the suit-Merely because a prosecution witness stated, it would not be sufficient 
to conclude that obstructionists resided in the suit property for the alleged 
period-High Court has failed to appreciate entire evidence on record-Trial 
Court rightly decreed the suit-Order of the High Court set aside and that of 
the executing Court restored 
E 
An ejectment suit filed by the appellant was decreed by the Court . 
of Small Causes. Appellant filed an execution petition for delivery of 
possession, which was resisted by three obstructionists. Appellant-decree 
holder preferred a miscellaneous petition under Order 21 Rule 97 CPC 
for removal .of ob~truction, which was allowed by the Executing Court 
holding that no evidence of possession produced by the obstructionists for 
F . the relevant period as claimed. Revision petition filed by the obstructionists 
was allowed. by the High Court. Hence the present appeal. 
Allowing the appeal, the Court 
HELD: I.I. 0. 21 R.97. CPC is the provision for removal of the 
G person bound by the decree who does not vacate. It takes into account a 
situation where resistance to possession is offered by the judgment-debtor 
or any other person bound by the decree which would indude .the claim 
of a person who claims to be in possession in his own right and 
independently of the judgment-debt-Or but whose claim e_x~facie is 
H 
3« 
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P. JANARDHANA RAO v. KANNAN 
345 
unsustainable. Where, however, resistance is offered or where obstruction A 
proceeds from the claimant claiming to be in possession in his own right 
and whose claim cannot be rejected on the ground of want of good faith, 
without investigation, the decree-holder must also proceed under Order 
21 Rule 97. [347-E, FJ 
Ragho Prasad v. Pratap Narain Agarwal, (1969) All.L.J. 929, referred B 
to. 
1.2. In the present case, it was the case of the obstructionists that 
they were in possession of the suit property since 1965. However, no 
evidence was produced by them. On the contrary, RWl stated in his 
evidence that he started paying property tax from 1989 and that prior C 
thereto he had not paid the property tax. PWl instituted an ejectment suit 
in the Small Causes Court in 1989. Therefore, the evidence has been 
created by the obstructionists only from 1989. (349-DJ 
Noorduddin v. Dr. K.L. Anand, (1995) 1 SCC 242, relied on. 
D 
1.3. The Trial Court was right in examining the entire evidence on 
record and coming to the conclusion that there was no evidence from the 
side of the obstructionists to show that they were in possession of the suit 
premises prior to the filing of ejectment suit. On the contrary, the property 
tax receipts show that the obstructionists have entered into occupation E 
from 1989. The High Court has failed to appreciate the entire evidence 
on record. Mere fact that PWl knew the three obstructionists from \980 
would not be sufficient to conclude that the three obstructionists came to 
reside in the suit property from 1965, as alleged. There is no evidence of 
residence from the side of the obstructionists between 1965 and 1989. In 
the circumstances, the High Court erred in dismissing the decree holder's F 
application under Order 21 Rule 97 CPC. (349-F-G] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1664 of 
1998. 
From the Judgment and Order dated 12.11.97 of the Madras High G 
Court in C.R.P. No. 2960 of 1995. 
Ram Lal Roy for R.N. Keshwani for the Appellant. 
R. Ayyam and Perumal for the Respondents. 
H 
346 
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. 
A 
The Judgment of the Court was delivered by 
KAPADIA, J. Being aggrieved by the judgment and order dated 
12.l l.1997 passed by.the High Court of Madras in C.R.P. No.2960of1995, 
dismissing Miscellaneous Petition No.600of1991 made by the decree holder 
under Order 21 Rule 97 of Code of Civil Procedure, this civil appeal has 
B been prefer
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