HINDUSTAN PETROLEUM CORPORATION LTD. Versus AJAY BHATIA

HINDUSTAN PETROLEUM CORPORATION LTD. Versus AJAY BHATIA

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. ………………………… OF 2022

(Arising out of S.L.P. (C) NO. 20718 OF 2021)

HINDUSTAN PETROLEUM CORPORATION LTD. ... Appellant (s)

Versus

AJAY BHATIA ... Respondent (s)

WITH

CIVIL APPEAL NO. ……………………OF 2022

(Arising out of S.L.P. (C) NO. 20737 OF 2021)

J U D G M E N T

Indira Banerjee, J.

Leave granted.

2. This appeal is against a final judgment and order dated 24th

November 2021 passed by the High Court of Delhi dismissing the

Execution First Appeals being Ex. F.A. 13 of 2019 and Ex. F.A. 30 of 2019

filed by the Appellant.

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3. The Appellant is a Government Company within the meaning of

Section 2(45) of the Companies Act, 2013 and carries on business, inter

alia, of refining, distributing and marketing petroleum products all over

India.

4. The Appellant operated two separate retail outlets/petrol pumps

namely M/s Azadpur Service Station and M/s Tej Service Station, through

two different dealers, at two different sites at Azadpur in Delhi. M/s

Azadpur Service Station was located on a plot of land admeasuring

9700 sq. ft. at 4/4 Azadpur, G.T. Road, Delhi, hereinafter referred to as

“Plot No. 4/4” and M/s Tej Service Station on two plots of land

admeasuring 15336 sq. ft. located at 4/5, Azadpur, G.T. Road, Delhi

hereinafter referred to as “Plot No.4/5”.

5. By an indenture of lease dated 15th October 1970, Shadi Lal

Bhatia, since deceased, son of Late Chaman Lal Bhatia, resident of 39,

Security Police Flats, near Ashoka Hotel, New Delhi, leased out land

situated at Mile 4/4, G.T. Karnal Road, Azadpur, Delhi more specifically

described in the Schedule to the said indenture of lease, that is, Plot

No.4/4 to M/s CALTEX (India) Ltd., hereinafter referred to as “CALTEX”,

for a period of ten years, to operate the retail outlet/petrol pump

Azadpur Service Station. CALTEX has since merged with the Appellant,

Hindustan Petroleum Corporation Limited. After the death of Shadi Lal

Bhatia, Plot No. 4/4 was inherited by Mrs. Rajeshwari Devi, widow of the

said Shadi Lal Bhatia. Mrs. Rajeshwari Devi extended the said lease for

a period of ten years.

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6. Plot No. 4/4 later devolved on the Respondent No, Shri Ajay

Bhatia, son of Shri Anil Bhatia, who is the owner thereof. On or about

18th January 2001, the Respondent applied for mutation of Plot No. 4/4

being the site of the retail outlet/petrol pump known as M/s Azadpur

Service Station.

7. By a letter No.3542/5 AG/2001 dated 20th January 2001, the

Municipal Corporation of Delhi informed the Respondent that the

property was being mutated in his name on the basis of documents

furnished by him.

8. Plot No. 4/5 was initially let out to Standard Vacuum Oil Company

which later became M/s ESSO Standard Eastern Inc, hereinafter referred

to as “ESSO”. By a deed of lease dated 9th February 1961, one

Sahabzada Nasirddin Ahmed Khan, son of Nawabzada Mirza Bashiruddin

Ahmed Khan, resident of H. No. 2205/VI, Qasamjan Street, Delhi, leased

out 6,106 sq. ft. land fully described in the Schedule to the said deed of

lease, that is, Plot No. 4/5 to Standard Vacuum Oil Company,

predecessor in interest of ESSO. ESSO and/or its predecessor in interest

Standard Vacuum Oil Company set up a retail outlet/petrol pump at plot

No. 4/5 under the name and style of M/s Tej Service Station.

9. By a letter No. F21 (21)-68-L&B dated April 1969, the Delhi

Administration, Land and Building Department informed the District

Manager of ESSO that ESSO was in occupation of land measuring 958

sq. yards belonging to the Delhi Administration, and demanded rent

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assessed at Rs.12,000/- per annum for the said land, for the period from

28th September 1968 to 27th September 1969. Delhi Administration

agreed to execute a lease agreement thereafter.

10. The said lease in respect of Plot No.4/5 which had expired by

efflux of time was extended for a further period of 10 years at a monthly

rent of Rs.3,000/- for the period from 1st June 1988 to 31st May 1998 and

Rs.4,500/- per month for the period from 1st June 1998 to 31st May 2008.

11. The Respondent filed a title suit being C.S. (OS) No.1828 of 2006

for recovery of possession of Plot 4/4 measuring 9700 sq. ft. situated at

4/4 Azadpur, G.T. Karnal Road, Delhi.

12. In the plaint, it is pleaded:

“1. That the Plaintiff is the owner and landlord of a piece of land

measuring 9700 sq. ft. situated at 4/4 Azadpur G.T. Road, Delhi.

Originally the said piece of land was owned by late Shri Shadi Lal

Bhatia, S/o Shri Chaman Lal Bhatia, who has purchased the said

plot of land. Late Shri Shadi Lal Bhatia was the grandfather of

Plaintiff.

 …

3. That originally the vacant piece of land measuring 9700 sq.

yards situated at 4/4 Azadpur G.T. Road, Delhi was let out to M/s

CALTEX (India) Ltd., which has since merged into Defendant No.1

wherein a retail outlet is being carried out in the name and style

of M/s Tej Service Station. The said plot of land was let out by

Late Shri Shadi Lal Bhatia by means of an indenture of lease

dated 15

th

 October 1970, which was duly registered with the SubRegistrar dist. No.1, Delhi. The copy of the lease deed dated

15.10.1970 is annexed as Annexure P-1. The land let out has been

shown in the site plan as red. A copy of the site plan is annexed

with the plaint as Annexure P-2.

…

5. That Shri Shadi Lal Bhatia died and after his death his widow

Smt. Rajeswari Bhatia inherited and estate and property was

under the tenancy of Defendants Nos. 1 and 2.

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6. The Defendant No.1 and 2 started paying the rent of the

land to Smt. Rajeswari Bhatia and the lease was further extended

as per the terms and conditions of the indenture of lease dated

15.10.1970 referred to above.

 …

9. That during the lifetime of Smt. Rajeswari Bhatia she had

executed a will 5.6.89 and under the said Will the land in suit i.e.

4/4 Azadpur G.T. Road, Delhi fell to the share of the Plaintiff and

the Plaintiff was also granted probate/letter of administration of

the said Will and the land situated at 4/4 Azadpur G.T. Road, Delhi

measuring 9700 sq. yds. fell to the exclusive share of the plaintiff

and the Plaintiff has therefore, become the absolute owner of the

said piece of land. It is pertinent to mention that even the

adjoining land bearing No.4/5 Azadpur G.T. Road, Delhi fell to the

share of the other legal representatives namely Shri Anil Bhatia,

Smt. Renu Bhatia and Smt. Anuradha Kapoor, which is also under

the unauthorised occupation of the Defendants No.1 and 2. The

photocopy of the letter of probate issued in favour of the Plaintiff

is also attached as Annexure P-3.

...

15. That the cause of action arose in favour of the Plaintiff and

against the Defendants when the lease deed expired in June,

2003.”

13. In the said suit, the Respondent prayed for the following relief:

“a) a decree for recovery of possession in respect of plot

measuring 9,700. sq.ft. situated at 4/4 Azadpur, G.T. Road, Delhi

as shown in red in the plan may be passed in favour of the

Appellant and against the defendants as shown red in the plan

attached.

b) the decree for recovery of Rs. 1965000/- being the damages @

Rs. 50000 per month from July 2003 to June 2006 be also passed

in favor of Plaintiff and against the Defendants.

c) A decree for recovery of future mesne profits @Rs.50000/- per

mensum from the institution of the suit till the realization be also

passed.

d) The suit be decreed with costs.

e) Any other relief which this Hon’ble Court may deem fit and

proper under the circumstances of the case may also be passed in

favor of the Plaintiff and against the Defendant.”

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14. From the averments in the plaint, it is patently clear that there

were two plots of land, Plot No. 4/4 being the suit property which was

inherited by the Respondent from his grandmother Smt. Rajeshwari

Bhatia and Plot No. 4/5, an adjacent Plot, which fell in the share of other

legal representatives of Smt. Rajeshwari Bhatia, namely, Shri Anil

Bhatia, Smt. Renu Bhatia and Smt. Anuradha Kapoor. It is alleged that

the said adjacent plot of land is also in the unauthorised occupation of

the Appellant.

15. The existence of a cause of action and/or, in other words, the

existence of circumstances giving cause for initiation of action is

imperative for initiation of a suit. A suit can only be entertained when

the cause of action has arisen and not otherwise. Any future event does

not constitute cause of action. The cause of action is the fact or bundle

of facts which would be necessary for the plaintiff to plead and prove, in

order to get a judgment of the Court in his favour.

16. The cause of action for the suit, in this case, is pleaded in

paragraphs 11, 12, 13 and 15 which are set out hereinbelow for

convenience:-

“11. That the period of the lease has expired and after the expiry

of the lease period the Plaintiff has been making repeated request

to the Defendants to handover the vacant possession of the said

piece of land. Instead of vacating the said plot the Defendants

have been sending the rent cheques in favour of Plaintiff by

means of courier. The Plaintiff has never accepted the said

cheques and has only received the damages upto June, 2003.

12. After the expiry of the lease, the Defendants were liable to

pay damages by way of mesne profits to the Plaintiff for being in

unauthorized occupation of the piece of land since the tenancy

had come to an end. That instead of making the payment of

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mesne profits the Defendants with some ulterior motive started

sending the cheques @ Rs. 4500/- per month which was not

accepted to the Plaintiff. That the tenancy of the Defendant was

governed by English calendar. It started on the 1

st

 day of month

and it ends on the last day of the month. That the Defendants are

liable to pay damages by way of mesne profits after the expiry of

the lease i.e. from June 2003 @ Rs.50,000/- per month to the

Plaintiff till they vacate the land.

13. That in order to avoid any technical objection the Plaintiff

has also terminated the tenancy by serving a legal notice dated

31.01.06. The copy of the notice sent by the Plaintiff is annexed

as Annexure P-4. That the defendants have failed to vacate the

premises…

…

15. That the cause of action arose in favour of the Plaintiff and

against the Defendants when the lease deed expired in June,

2003 and the Defendants were called upon to handover the

vacant possession and also pay the arrears of damages @ Rs.

50000/- per month with effect from July 2003 upto date. The

Defendants have also failed to deliver the possession the cause of

action arose firstly in the month of July 2003 and in any case it

has finally arisen when the period of one month expired after the

service of the notice dated 31.01.2006 and is also continuing to

arise till today as the Defendant has failed to do the needful. No

reply notice was sent both under registered cover and UPC and

the same has been duly served but of no effect.”

17. In a nutshell, the cause of action is the expiry of the lease of the

suit property, that is Plot No.4/4 and refusal of the Appellant to vacate

the suit property in spite of request, and the consequential liability of

the Appellant to the Respondent, to pay damages for wrongful

occupation and/or mesne profits for wrongful occupation.

18. From the tenor and style of the plaint, it is absolutely clear that

the suit was filed only in respect of Plot No.4/4, initially let out to

CALTEX, which had merged into Appellant and where a retail outlet was

being operated under the name and style of M/s Azadpur Service

Station. The suit property did not include Plot No. 4/5 which belongs to

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other legal representatives of Smt. Rajeshwari Bhatia. The owners of

Plot No. 4/5 had not even joined as Plaintiffs in the suit. The plaint

proceeds on the basis of a lease executed in favour of CALTEX

predecessor in interest of the Appellant, which according to the plaintiff,

had expired in June 2003.

19. Soon after the trial of the suit commenced, the Respondent filed

an application in the suit under Order XII Rule 6 read with Section 151 of

the Code of Civil Procedure, 1908 (CPC) seeking a summary judgment

and order/decree for eviction of the Appellant from the suit property.

20. By a judgment and decree of the Delhi High Court in C.S.(O.S.) No.

1828 of 2006 dated 21st November 2013, the Appellant was directed to

restore the suit property to the Respondent within a period of 12 weeks

from the date of the order.

21. The relevant excerpts from the judgment and decree dated 21st

November 2013 are set out hereinbelow:-

“4. Admittedly, the suit property was given on lease to the

erstwhile M/s. CALTEX (India) Limited and has been duly exhibited

as Ex.P-1. Defendant No.1 is the successor of M/s CALTEX (India)

Limited and accepted the relationship of landlord and tenant vis-àvis the Plaintiff and itself. The land in question was owned by the

Plaintiff’s grandfather, Mr. Shadi Lal Bhatia and after his death

Smt. Rajeshwari Bhatia became the landlady. The lease was

extended by a lease deed dated 15

th

 October 1970. Smt. Bhatia

died on 22

nd

 November 1993. During her lifetime she executed a

Will dated 5

th

 June 1989 bequeathing the land in question to the

Plaintiff. The Plaintiff has also obtained probate/letter of

administration of the said Will. This fact was also admitted by the

Defendant in its written statement. The probate certificate has

been placed on record. Defendant No.1 started remitting the rent

to the Plaintiff separately through his attorney Mr. Vipin Arora.

The rent in respect of adjoining land was being paid by

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Defendant No.1 separately to the other legal heirs of the

deceased Smt. Rajeshwari Bhatia.

5. Considering that Defendant No.1 has accepted the

relationship of landlord and tenant and has been paying rent for

the plot under its occupation to the Plaintiff, it is now not open to

Defendant No.1 to deny the identity of plot which belongs to the

Plaintiff.

6. In the Written Statement, Defendant No.1 claims that the

lease is renewable for a period of 40 years beyond 31

st

 March

2009. It appears that there is no automatic renewal of the lease.

Defendant No.1 has not exercised any such right by issuing a

notice to the Plaintiff. On the other hand, the Plaintiff has

terminated the lease and filed the present suit for recovery of

possession.

7. The Supreme Court has, in Bharat Petroleum Corporation

Limited v. Rama Chandrashekhar Vaidya [decision dated 2

nd

 April

2013 in SLP (Civil) No.15 of 2010], negative the plea taken in that

case by Defendant No.1 that there is an automatic renewal of the

lease. Similarly, the Supreme Court has, in Depot

Superintendent, H.P. Corporation Limited v. Kolhapur Agricultural

Market Committee, Kolhapur (2007) 6 SCC 159, held that there is

no automatic renewal of a lease for a petroleum retail outlet.

Consequently, the statement made in para 9 of the written

statement that the lease came to an end on 31

st

 March 2009 is an

admission by Defendant No.1 that its continuance in the suit

property beyond that date is without any legal basis.

8. Consequently, the Plaintiff is entitled, under Order XII Rule 6

CPC, to a decree of possession on the basis of the above

admission made in the written statement of Defendant No.1.

9. The suit is decreed in terms of prayer (a) and the Defendant

No.1 is directed to restore to the Plaintiff the vacant and peaceful

possession of the suit property as shown in red in the plan

enclosed with the plaint, which is under occupation of Defendant

No.1, within a period of twelve weeks from today.”

22. The Respondent (plaintiff in the suit) was claiming mesne profits

at the rate of Rs.50,000/- per month from July 2003 in respect of 9,700

sq. ft. of land being Plot No.4/4. The Court proceeded to decide the

issue of “Whether the plaintiff was entitled to mesne profits from the

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defendants and if so to what extent?”. Trial commenced in respect of

the claim of the Plaintiff (Respondent) for mesne profits. The Court

found that the lease of Plot No. 4/4, came to an end, by efflux of time in

June 2003. On examination of an approved valuer, the Respondent was

granted mesne profit at the rate of Rs.50,000/- per month with effect

from July 2003 till the vacation of the suit property, by a judgment and

order and decree dated 20th August 2018.

23. The Appellant filed Regular First Appeal being RFA No. 13 of 2019

in the High Court of Delhi. By a judgment and order dated 9th January

2019, the Delhi High Court found that the tenancy of the Appellant in

respect of the suit property, stood terminated after the Respondent sent

the legal notice dated 31st January 2006 terminating the tenancy of the

Appellant with effect from 28th February 2006. The Appellant’s

occupation thus became illegal only from 1st March 2006 and not from

any earlier period.

24. The High Court partially allowed the Regular First Appeal being

RFA No.13 of 2019 and modified the impugned judgment and decree by

holding that mesne profits would be payable not from July 2003 but

from 1st March 2006.

25. The Respondent filed an application in the Court of Additional

District Judge, North Rohini Court, Delhi for execution of the decree of

mesne profits as modified by the High Court.

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26. The Appellant contends that the Respondent had filed an

inaccurate site plan along with its plaint, based on which judgment and

decree dated 21st November 2013 has been passed. There was, thus,

an error apparent on the face of the said judgment and decree. The

Appellant, therefore, filed an application on or about 1st May 2015,

under Order 41 Rule 33 read with Section 151 of the CPC for

clarification/rectification of the decree dated 21st November 2013. The

said application was dismissed by an order dated 15th May 2015 on the

ground of the same being barred by limitation.

27. Since the Respondent had wrongfully taken possession of Plot No.

4/5 or part thereof, the dealer of the petrol pump/retail outlet, M/s Tej

Service Station filed an application under Order 21 Rule 99 read with

Section 151 of the CPC seeking appointment of a Local Commissioner to

demarcate the area of the suit property.

28. Pursuant to an order dated 21st March 2013 passed by a Joint

Registrar of the High Court, the Execution Petition being Ex. P. No. 163

of 2014 was transferred to the Court of the Additional District and

Sessions Judge, North District, Rohini Court, Delhi and the parties were

directed to appear before the Rohini Court on 2nd May 2017. On 22nd

July 2017, the Appellant filed an application before the Additional

District Judge, North District, Rohini Court, Delhi for addition of the Land

and Building Department of the Delhi Administration as party

Respondent in the Execution Petition.

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29. On or about 25th July 2017, the Appellant filed another application

before the Additional District Judge, North District, Rohini Court, Delhi,

praying for appointment of a Revenue Officer, preferably Kanoongo of

the concerned area as a Local Commissioner with a direction on him to

demarcate the area of the suit property. Directions were also sought to

ensure that the attachment done under the process of execution of the

decree on Plot No. 4/5 where the Appellant had been running the petrolpump/retail outlet, M/s Tej Service Station, be removed and the said plot

be restored to the Appellant.

30. The Managing Partner of M/s Tej Service Station, Shri Ramesh

Kumar Yadav, made an application for intervention being IA No. 39324

of 2022 in this Court. Pursuant to an order dated 15th March 2022

passed in the said application, the intervener, being the Managing

Partner of M/s. Tej Service Station has been added as party-Respondent

in the Special Leave Petition.

31. By judgment and order dated 9th January 2019, the said Regular

First Appeal No. 13 of 2019 filed by the Appellant was partly allowed

and the judgment and decree dated 20th August 2018 for mesne profits

was modified by directing that mesne profits would be payable from 1st

March 2006 and not from July 2003 as directed by the Trial Court.

32. By an order dated 15th March 2019, the Additional District Judge,

North District, Rohini Court, allowed Execution Application No. 799 of

2014 filed by the Respondent for possession of the suit premises and

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dismissed the subsequent applications filed by the Appellant, that is,

the application for dismissal of the execution application on the ground

of the decree not being executable and the application seeking

restoration of possession of Plot No. 4/5, possession whereof had been

taken in part execution of the decree.

33. On or about 29th March 2019, the Appellant filed Execution First

Appeal No. 13 of 2019 challenging the order dated 15th March 2019 in

the Delhi High Court. On 19th July 2019, the Appellant filed its

objections as well as the application under Order 21 Rule 26 CPC for

stay of the proceedings for execution of the decree for mesne profits.

The applications were dismissed by a judgment and order dated 19th

July 2019.

34. Being aggrieved, the Appellant filed Execution First Appeal 30 of

2019. Various interim orders were, from time to time, passed.

Ultimately, by an order dated 24th November 2021 impugned in this

appeal, the High Court of Delhi dismissed Execution First Appeal No. 13

of 2019 and Execution First Appeal No. 30 of 2019 filed by the

Appellant.

35. Mr. Vishwanathan, learned counsel appearing on behalf of the

Appellant submitted that the suit had been filed for recovery of Plot

No.4/4 admeasuring 9700 sq. ft. The suit was decreed in terms of

prayer (a) of the plaint. Prayer (a) of the plaint specifically refers to

property situated at 4/4, Azadpur, G.T. Road, Delhi admeasuring 9700

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sq. ft. The Appellant was all along willing to comply with the decree and

hand over possession of Plot No. 4/4 to the Respondent.

36. Mr. Vishwanathan further argued that the Executing Court was

required to ascertain the exact description of the decretal property, that

is, Plot No. 4/4, Azadpur, G.T. Road, Delhi in terms of Order 7 Rule 3 and

Order 20 Rule 3 of the CPC for the purposes of execution, discharge or

satisfaction of decree within the meaning of Section 47 CPC by

appointing a Kanoongo of the concerned area as a local Commissioner

as per the law laid down by this Court in Pratibha Singh v. Shanti

Devi Prasad

1

.

37. Mr. Vishwanathan argued that the Decree Holder (Respondent)

was claiming possession of Plot No.4/5 by relying upon a handmade

plan annexed to the plaint. The suit property was not identified by

boundaries. The handmade map which does not identify Plot No. 4/4

being the suit property, cannot be the basis for identification of the plot.

38. Mr. Vishwanathan submitted that the Respondent was wrongfully

claiming possession of Plot No.4/5 of which he was not even owner. Part

of the Plot is owned by Mr. Anil Bhatia and the others and the other part

by the Delhi Government.

39. In respect of SLP (C) No. 20737 of 2021, Mr. Vishwanathan

submitted that the Appellant had paid mesne profit as determined by

the Court till 30th September 2014. The Appellant had all along

1 (2003) 2 SCC 330

15

indicated its willingness to handover possession of plot No. 4/4. The

decree dated 20th August 2018 for payment of mesne profit also

referred to Plot No.4/4 admeasuring 9700 sq. ft. The Appellant contends

that the Appellant is, therefore, not liable to pay mesne profit post

September, 2014.

40. The Appellant contended:

“11. The Decree Holder had the chance of executing the decree of

possession against 4/4 Azadpur, Delhi, willingly he did not do so

and instead took possession of wrong property i.e. 4/5, causing

loss to judgment debtor and thus his entitlement to mesne profits

does not survive.

…

13. Further, it is submitted that the Decree Holder has taken the

possession of land admeasuring 116* 61 from the judgment

Debtor on 15.09.2014, hence the calculation for mesne profit for

complete area of 9700 sq. ft. after 15.09.2014 is flawed and

unlawful. The copy of the report of the bailiff is annexed

herewith….”

41. Mr. Viswanathan argued that the Respondent has claimed mesne

profits for entire decretal area of 9700 sq. ft. after 15th September 2014.

The Respondent Decree Holder cannot claim the entire amount when he

has taken part possession of land admeasuring 7076 sq. ft. out of which

240 sq. ft. area belong to the Land and Building Department, Delhi

Administration.

42. On behalf of Respondent, Mr. Kalra submitted that the decree of

possession obtained by the Respondent had assumed finality. The

execution proceedings were initiated for recovery of possession. The

Respondent could take possession of 7075 sq. ft. out of the 9700 sq. ft.

16

on 15th September 2014. The Appellant was directed to remove the

dispensing units, underground tanks, CNG compressor, overhead tanks,

which the Appellant has not yet done. The land cannot be used by the

Respondent as there are explosives stored and the sale of fuel is still

going on.

43. Mr. Kalra emphasised on the fact that there was a site plan

attached to the plaint which is part of the decree and the decree has

been confirmed by the Appellate Court. Mr. Kalra also argued that 4/4

and 4/5 are only landmarks as found by the Courts below and no

substantial question of law is involved. The appeals are thus liable to be

rejected.

44. With the greatest of respect, there is no finding by any Court that

4/4 or 4/5 are only landmarks. Rather, there is a plethora of documents

on record to show that two separate petrol pumps/retail outlets were

being run on two contiguous plots, one of which was initially run by

CALTEX, which later merged into the Appellant and the other by ESSO,

which later merged into the Appellant. There was no connection

between CALTEX and ESSO. It is also admitted that one of the plots

have gone to the share of some other descendants of the original

owner, Shadi Lal Bhatia.

45. It is clear that the decree is not executable against Plot No. 4/5.

The Respondent is liable to restore the possession of Plot No.4/5 to the

Appellant. The Executing Court would have to appoint a Local

17

Commissioner to demarcate and hand over Plot No.4/4 to the

Respondent.

46. It is not necessary for this Court to embark upon a threadbare

analysis and discussion of the lengthy judgment of the High Court, in

appeal before us. Suffice it to mention that the suit was in respect of

Plot No. 4/4. The mesne profits and/or damages were awarded in

respect of wrongful occupation of Plot No. 4/4.

47. There can be no doubt that the verdict of the Trial Court has

assumed finality in respect of Plot No. 4/4. The Respondent is entitled

to possession of Plot No. 4/4. The Respondent is also entitled to mesne

profits at the rate of Rs.50,000/- per month from 1st March 2006, as

directed by the High Court to make over, till the date on which the

Appellant offered possession of Plot No. 4/4 to the Respondent.

48. The question is whether the Respondent can take possession of

any part of Plot No. 4/5 or any other plot in execution of the decree in

suit being C.S.(O.S.) No.1828 of 2006 which is only in respect of Plot No.

4/4. The answer to the aforesaid question is obviously in the negative.

49. Order 7 Rule 3 of the Code of Civil Procedure mandates that where

the subject matter of the suit is immovable property, the plaint shall

contain a description of the property sufficient to identify it, and in case

such property can be identified by boundaries or numbers in a record of

18

settlement or survey, the plaint shall specify such boundaries or

numbers.

50. In Pratibha Singh (supra), this Court held that when a suit for

immovable property had been decreed but the property not definitely

identified, the defect in the Court record caused by overlooking of

provisions contained in Order 7 Rule 3 and Order 20 Rule 3 could be

cured. The Court which passed the decree could supply the omission.

Alternatively, exact description of the decretal property might be

ascertained by the Executing Court, as a question relating to execution,

discharge or satisfaction of decree within the meaning of Section 47.

51. There could be no doubt that a decree should not to the extent

practicable be allowed to be defeated. At the same time, a decree can

only be executed in respect of the suit property if the suit property is

easily identifiable. The extent of the suit property would have to be

determined by the Executing Court, as a question relating to execution,

discharge or satisfaction of the decree.

52. The Respondent is undoubtedly entitled to mesne profits. Order

20 Rule 12 provides:-

“12. Decree for possession and mesne profits:-

(1) Where a suit is for the recovery of possession of immovable

property and for rent or mesne profits, the Court may pass a

decree-

(a) for the possession of the property;

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(b) for the rents which have accrued on the property during the

period prior to the institution of the suit or directing an inquiry

as to such rent;

(ba) for the mesne profits or directing an inquiry as to mesne

profits;

(c) directing an inquiry as to rent or mesne profits from the

institution of the suit until-

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor

with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree,

whichever event first occurs.

(2) Where an inquiry is directed under clause (b) or clause (c), a

final decree in respect of the rent or mesne profits shall be passed

in accordance with the result of such inquiry.”

53. The mesne profit at the rate directed by the Trial Court and

confirmed by the High Court will have to be computed afresh, taking

into account all relevant factors.

54. The contention of the Intervener that M/s Tej Service Station is

located over two adjacent plots, Plot No.4/5 admeasuring 112x60 sq. ft.

being part of Khasra No. 403/90 leased by Smt. Rajeshwari Bhatia and

another plot admeasuring 142x60 sq. ft. being part of Khasra No. 66 of

Village Azadpur belonging to the Delhi Government requires

consideration.

55. This Court cannot shut its eyes to the fact that part of the land

belongs to the Delhi Government for which Appellant is paying Revenue

to the Delhi Government.

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56. The Appeal relating to the SLP (C) No.20718 of 2021 and the

Appeal relating to SLP (C) No.20737 of 2021 are allowed. The impugned

judgment and order is set aside. The Executing Court shall decide the

Execution Applications and all related applications afresh, in the light of

the observations made above by appointing a Revenue Officer as Local

Commissioner to demarcate Plot No. 4/4 and make over possession of

the said plot to the Respondent. Any excess land of which possession

may have been taken, whether of Plot No.4/5 or any land belonging to

the Delhi Government shall be restored to the Appellant. The mesne

profits as directed by the Trial Court shall be computed in terms of the

decree of the Trial Court, as modified by the High Court, i.e., with effect

from 1st March 2006 till relinquishment by the Appellant of possession of

the suit property.

……...................................J

 [ INDIRA BANERJEE ]

……...................................J

 [ A.S. BOPANNA ]

NEW DELHI;

SEPTEMBER 22, 2022

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