AMIR CHAND Vs. CHUNI LAL

JUDGEMENT

(1.) This Execution Second Appeal is directed against the order of the First Appellate Court which on appeal affirmed that of the executing court dismissing the objections under O.21, R.100, C.P.C.

(2.) The facts : A tablea now described as a shop situated in Purani Sabzi Mandi, Jagadhari was mortgaged by Shri Jagdish Raj, Advocate predecessor-in-interest of the petitioner and respondents Nos. 2 and 3 with Smt. Gian Bala. The mortgage was redeemed and a final decree for redemption was passed by the civil court on Oct. 25, 1972. The premises were in possession of respondent No. 1 Chuni Lal tenant (for short the tenant). In execution of the decree for redemption, the tenant was evicted and the possession was delivered to the petitioner and pro forma respondents Nos. 2 and 3. The tenant filed an application under O.21, R.100, C.P.C. for restoration of the possession of the property. It was accepted vide order dated April 14, 1976 of Subordinate Judge, Jagadhari. The petitioner and respondents Nos. 2 and 3 were directed to restore possession to the tenant. The order was not complied with. The petitioner and respondents Nos. 2 and 3 filed a civil suit for permanent injunction restraining the tenant from taking possession of the disputed premises. Along with the suit, an application under O.39, R.1, CPC was filed which was dismissed by the trial Judge and the order was affirmed on appeal by the First Appellate Court. The Subordinate Judge, Jagadhari passed an order dated Dec. 4, 1979 directing delivery of possession to the tenant after overruling the objections of the petitioner and respondents Nos. 2 and 3. The order dated Dec. 4, 1979 was affirmed on appeal by the District Judge, Ambala. The petitioner having failed to successfully resist the tenant from taking possession of the disputed premises filed objections before the executing court stating that the building standing on the land was demolished by the Municipal Committee and the tenant was entitled to restoration of possession of building and not of the vacant land and since the building has been demolished, the tenant was not entitled to restoration of possession of the vacant land. The application was dismissed by the trial Judge and the order was affirmed on appeal by the First Appellate Court. Hence this appeal.

(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, AIR 1948 PC 180, Commr. of Income-tax, Punjab v. M/s. Alps Theatre, AIR 1967 SC 1437, Mahadeo Prosad Shaw v. Calcutta Dyeing and Cleaning Co., AIR 1961 Cal 70. In Bhan Kumar Chand case (supra) 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 a lapse of more than half a 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 (supra), the only question which arose before the apex court was relating to interpretation of S.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 along with the cost of the building standing thereon?". This ruling has no relevance to the instant case. In Mahadeo Prosad Shaw case (supra) the court dealt with the frustration of contract as embodied in S.56 of the Contract Act and examined the scope of S.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:-