CHUNI LAL Vs. AMIR CHAND

JUDGEMENT

(1.) This revision petition is directed against the order of the First Appellate Court which on appeal affirmed that of the executing court dismissing the objections under Order 21 Rule 100 Civil Procedure Code

(2.) The facts :

(3.) The only ground urged by the learned counsel for the petitioner is that the tenant was entitled to restoration of possession of the building and not the vacant land and since the building has been demolished, he is not entitled to possession of the vacant land and in support, of his submission he relied upon Bhan Kumar Chand V. Mohan Lal, 1948 AIR(PC) 180 , Commissioner of Income-tax, Punjab V. M/s Alps Theatre, 1967 AIR(SC) 1437and Mahadeo Prasad Shaw V. Calcutta Dying and Cleaning Co., 1961 AIR(Cal) 70In Bhan Kumar Chand case the High Court as a matter of fact found that the village, the possession of which was decreed in favour of the Decree Holder was inextricably mixed up with other villages that after lapse of more than half of century, it was impossible to find out with reference to any contemporaneous records, as to which lands constituted the village in question and the decree holders were unable to identify the village and the High Court held that the decree holders were not entitled to possession in execution of the decree for possession. The Privy Council, in appeal, agreeing with the finding of fact arrived at by the High Court, dismissed the appeal of the decree holders. The facts of the above case have no applicability to the facts of the instant case. In Commissioner of Income-tax, Punjab case , the only question which arose before the apex court was relating to interpretation of Section 10(2)(vi) of the Income Tax Act and the question for answer was "Whether the cost of land is entitled to depreciation under the schedule to the income-tax Act alongwith the costs of the building standing thereon -. This ruling has no relevance to the instant case. In Mahadeo Prasad Shaw case the court dealt with the frustration of contract as embodied in Section 56 of the Contract Act and examined the scope of Section 108 of the Transfer of Property Act vis-a-vis. It was found that the provisions of the former section stood substantially incorporated in the latter section. The question before the Bench arose in the following circumstances :-