RATAN LAL JAIN AND ORS. versus UMA SHANKAR VYAS AND ORS.

Citation: [2002] 1 S.C.R. 750 · Decided: 30-01-2002 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Dismissed

Judgment (excerpt)

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[ 
H 
2. Rule 35(1) of the Civil Procedure Code provides that where a 
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) 
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. 
E 
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 t

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