HINDUSTAN PETROLEUM CORPORATION LTD. versus AJAY BHATIA on 22 September 2022

HINDUSTAN PETROLEUM CORPORATION LTD.

v.

AJAY BHATIA

(Civil Appeal No. 6859 of 2022)

SEPTEMBER 22, 2022

[INDIRA BANERJEE AND A. S. BOPANNA, JJ.]

Decree – Execution of – Held: A decree should not to theextent practicable be allowed to be defeated – At the same time, adecree can only be executed in respect of the suit property if thesuit property is easily identifiable – The extent of the suit propertywould have to be determined by the Executing Court, as a questionrelating to execution, discharge or satisfaction of the decree – Inthe present case, the suit was in respect of Plot No. 4/4 – Respondentcannot take possession of any part of Plot No. 4/5 or any other plotin execution of the decree in the suit which is only in respect of PlotNo. 4/4 – Thus, decree is not executable against Plot No. 4/5 –Respondent is liable to restore the possession of Plot No.4/5 to theAppellant – Executing Court would have to appoint a LocalCommissioner to demarcate and hand over Plot No.4/4 to theRespondent – Impugned judgment set aside – Code of CivilProcedure, 1908 – Or.7, r.3.

Cause of action – What is – Discussed.

Allowing the appeals, the Court

HELD: 1.1 From the averments in the plaint, it is patentlyclear that there were two plots of land, Plot No. 4/4 being the suitproperty which was inherited by the Respondent from hisgrandmother ‘RB’ and Plot No. 4/5, an adjacent Plot, which fell inthe share of other legal representatives of ‘RB’. It is allegedthat the said adjacent plot of land is also in the unauthorisedoccupation of the Appellant. The existence of a cause of actionand/or, in other words, the existence of circumstances givingcause for initiation of action is imperative for initiation of a suit. Asuit can only be entertained when the cause of action has arisenand not otherwise. Any future event does not constitute cause ofaction. The cause of action is the fact or bundle of facts which

527

A

B

CDE

FGH

Awould be necessary for the plaintiff to plead and prove, in orderto get a judgment of the Court in his favour. The cause of actionis the expiry of the lease of the suit property, that is Plot No.4/4and refusal of the Appellant to vacate the suit property in spite ofrequest, and the consequential liability of the Appellant to theRespondent, to pay damages for wrongful occupation and/orBmesne profits for wrongful occupation. From the tenor and styleof the plaint, it is absolutely clear that the suit was filed only inrespect of Plot No.4/4, initially let out to CALTEX, which hadmerged into Appellant and where a retail outlet was beingoperated under the name and style of M/s Azadpur Service Station.CThe suit property did not include Plot No. 4/5 which belongs toother legal representatives of ‘RB’. The owners of Plot No. 4/5had not even joined as Plaintiffs in the suit. The plaint proceedson the basis of a lease executed in favour of CALTEXpredecessor in interest of the Appellant, which according to the plaintiff, had expired in June 2003. [Paras 14, 15, 17 & 18][534-DC-F; 535-H; 536-A-C]

1.2 There is a plethora of documents on record to showthat two separate petrol pumps/retail outlets were being run ontwo contiguous plots, one of which was initially run by CALTEX,which later merged into the Appellant and the other by ESSO,Ewhich later merged into the Appellant. There was no connectionbetween CALTEX and ESSO. It is also admitted that one of theplots have gone to the share of some other descendants of theoriginal owner. It is clear that the decree is not executable againstPlot No. 4/5. The Respondent is liable to restore the possessionFof Plot No.4/5 to the Appellant. The Executing Court would haveto appoint a Local Commissioner to demarcate and hand overPlot No.4/4 to the Respondent. The suit was in respect of PlotNo. 4/4. The mesne profits and/or damages were awarded inrespect of wrongful occupation of Plot No. 4/4. There can be no

doubt that the verdict of the Trial Court has assumed finality inGrespect of Plot No. 4/4. The Respondent is entitled to possessionof Plot No. 4/4. The Respondent is also entitled to mesne profitsat the rate of Rs.50,000/- per month from 1st March 2006, asdirected by the High Court to make over, till the date on whichthe Appellant offered possession of Plot No. 4/4 to theHRespondent. [Paras 44-47][542-C-G]

1.3 The question is whether the Respondent can takepossession of any part of Plot No. 4/5 or any other plot in executionof the decree in suit being C.S.(O.S.) No.1828 of 2006 which isonly in respect of Plot No. 4/4. The answer to the aforesaidquestion is obviously in the negative. Order 7 Rule 3 of the Codeof Civil Procedure mandates that where the subject matter of thesuit is immovable property, the plaint shall contain a descriptionof the property sufficient to identify it, and in case such propertycan be identified by boundaries or numbers in a record ofsettlement or survey, the plaint shall specify such boundaries ornumbers. There could be no doubt that a decree should not tothe extent practicable be allowed to be defeated. At the sametime, a decree can only be executed in respect of the suit propertyif the suit property is easily identifiable. The extent of the suitproperty would have to be determined by the Executing Court,as a question relating to execution, discharge or satisfaction ofthe decree. [Paras 48, 49 and 51][542-H; 543-A-B, D-E]

1.4 The Respondent is undoubtedly entitled to mesneprofits. The mesne profit at the rate directed by the Trial Courtand confirmed by the High Court will have to be computed afresh,taking into account all relevant factors. The contention of theIntervener that M/s Tej Service Station is located over twoadjacent plots, Plot No.4/5 admeasuring 112x60 sq. ft. being partof Khasra No. 403/90 leased by ‘RB’ and another plotadmeasuring 142x60 sq. ft. being part of Khasra No. 66 of VillageAzadpur belonging to the Delhi Government requiresconsideration. This Court cannot shut its eyes to the fact thatpart of the land belongs to the Delhi Government for whichAppellant is paying Revenue to the Delhi Government. [Paras52, 53-55][543-E-F; 544-C-E]

1.5 The Appeal relating to the SLP (C) No.20718 of 2021and the Appeal relating to SLP (C) No.20737 of 2021 are allowed.The impugned judgment and order is set aside. The ExecutingCourt shall decide the Execution Applications and all relatedapplications afresh, in the light of the observations made aboveby appointing a Revenue Officer as Local Commissioner todemarcate Plot No. 4/4 and make over possession of the said ABC

D

E

FG

H

Aplot to the Respondent. Any excess land of which possessionmay have been taken, whether of Plot No.4/5 or any land belongingto the Delhi Government shall be restored to the Appellant. Themesne profits as directed by the Trial Court shall be computed interms of the decree of the Trial Court, as modified by the HighCourt, i.e., with effect from 1st March 2006 till relinquishmentBby the Appellant of possession of the suit property. [Para 56][544-F-G]

Pratibha Singh v. Shanti Devi Prasad (2003) 2 SCC330 : [2002] 4 Suppl. SCR 406 – referred to.

CCase Law Reference

[2002] 4 Suppl. SCR 406referred toPara 36

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6859of 2022.

DFrom the Judgment and Order dated 24.11.2021 of the High Courtof Delhi at New Delhi in EX FA No. 13 of 2019.

With

Civil Appeal No. 6860 of 2022

K.V. Viswanathan, Sr. Adv., Sanjay Kapur, Ms. Megha Karnwal,EArjun Bhatia, Chanakya Dwivedi, Advs. for the Appellant.

Vikas Singh, Sr. Adv., Manmohan Kalra, Viresh B. Saharya, KunalKalra, Akshat Agarwal, Anmol Chandan, Rishi Kumar Singh Gautam,Kapish Seth, Ms. Deepika Kalia, Piyush Singh, Mrityunjai Singh, Advs.for the Respondent.F

The Judgment of the Court was delivered by INDIRA BANERJEE, J.

Leave granted.

2. This appeal is against a final judgment and order datedG24[th] November 2021 passed by the High Court of Delhi dismissing theExecution First Appeals being Ex. F.A. 13 of 2019 and Ex. F.A. 30 of2019 filed by the Appellant.

3. The Appellant is a Government Company within the meaningof Section 2(45) of the Companies Act, 2013 and carries on business,H

inter alia, of refining, distributing and marketing petroleum products allover India.

4. The Appellant operated two separate retail outlets/petrol pumpsnamely M/s Azadpur Service Station and M/s Tej Service Station, throughtwo different dealers, at two different sites at Azadpur in Delhi. M/sAzadpur Service Station was located on a plot of land admeasuring 9700sq. ft. at 4/4 Azadpur, G.T. Road, Delhi, hereinafter referred to as “PlotNo. 4/4” and M/s Tej Service Station on two plots of land admeasuring15336 sq. ft. located at 4/5, Azadpur, G.T. Road, Delhi hereinafter referredto as “Plot No.4/5”.

5. By an indenture of lease dated 15[th] October 1970, Shadi LalBhatia, since deceased, son of Late Chaman Lal Bhatia, resident of 39,Security Police Flats, near Ashoka Hotel, New Delhi, leased out landsituated at Mile 4/4, G.T. Karnal Road, Azadpur, Delhi more specificallydescribed in the Schedule to the said indenture of lease, that is, PlotNo.4/4 to M/s CALTEX (India) Ltd., hereinafter referred to as“CALTEX”, for a period of ten years, to operate the retail outlet/petrolpump Azadpur Service Station. CALTEX has since merged with theAppellant, Hindustan Petroleum Corporation Limited. After the death ofShadi Lal Bhatia, Plot No. 4/4 was inherited by Mrs. Rajeshwari Devi,widow of the said Shadi Lal Bhatia. Mrs. Rajeshwari Devi extended thesaid lease for a period of ten years.

6. Plot No. 4/4 later devolved on the Respondent No, Shri AjayBhatia, son of Shri Anil Bhatia, who is the owner thereof. On or about18[th] January 2001, the Respondent applied for mutation of Plot No. 4/4being the site of the retail outlet/petrol pump known as M/s AzadpurService Station.

7. By a letter No.3542/5 AG/2001 dated 20[th] January 2001, theMunicipal Corporation of Delhi informed the Respondent that the propertywas being mutated in his name on the basis of documents furnished byhim.

8. Plot No. 4/5 was initially let out to Standard Vacuum OilCompany which later became M/s ESSO Standard Eastern Inc,hereinafter referred to as “ESSO”. By a deed of lease dated 9[th] February1961, one Sahabzada Nasirddin Ahmed Khan, son of Nawabzada MirzaBashiruddin 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 AB

CD

E

F

G

H

Asaid 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 interestStandard Vacuum Oil Company set up a retail outlet/petrol pump at plotNo. 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 DelhiBAdministration, Land and Building Department informed the DistrictManager of ESSO that ESSO was in occupation of land measuring 958sq. yards belonging to the Delhi Administration, and demanded rentassessed at Rs.12,000/- per annum for the said land, for the period from28[th] September 1968 to 27[th] September 1969. Delhi Administration agreedto execute a lease agreement thereafter.C

10. The said lease in respect of Plot No.4/5 which had expired byefflux of time was extended for a further period of 10 years at a monthlyrent of Rs.3,000/- for the period from 1[st] June 1988 to 31[st] May 1998and Rs.4,500/- per month for the period from 1[st] June 1998 to 31[st] May2008.D

11. The Respondent filed a title suit being C.S. (OS) No.1828 of2006 for recovery of possession of Plot 4/4 measuring 9700 sq. ft. situatedat 4/4 Azadpur, G.T. Karnal Road, Delhi.

12. In the plaint, it is pleaded:E“1.

E“1. That the Plaintiff is the owner and landlord of a piece ofland measuring 9700 sq. ft. situated at 4/4 Azadpur G.T. Road,Delhi. Originally the said piece of land was owned by lateShri Shadi Lal Bhatia, S/o Shri Chaman Lal Bhatia, who haspurchased the said plot of land. Late Shri Shadi Lal BhatiaFwas the grandfather of Plaintiff.

…

3. That originally the vacant piece of land measuring 9700sq. yards situated at 4/4 Azadpur G.T. Road, Delhi was let outto M/s CALTEX (India) Ltd., which has since merged intoDefendant No.1 wherein a retail outlet is being carried out inthe name and style of M/s Tej Service Station. The said plot ofland was let out by Late Shri Shadi Lal Bhatia by means of anindenture of lease dated 15[th] October 1970, which was dulyregistered with the Sub-Registrar dist. No.1, Delhi. The copyof the lease deed dated 15.10.1970 is annexed as Annexure G

H

P-1. The land let out has been shown in the site plan as red. Acopy of the site plan is annexed with the plaint as AnnexureP-2.

…

5. That Shri Shadi Lal Bhatia died and after his death hiswidow Smt. Rajeswari Bhatia inherited and estate andproperty was under the tenancy of Defendants Nos. 1 and 2.

6. The Defendant No.1 and 2 started paying the rent of theland to Smt. Rajeswari Bhatia and the lease was furtherextended as per the terms and conditions of the indenture oflease dated 15.10.1970 referred to above.

…

9. That during the lifetime of Smt. Rajeswari Bhatia she hadexecuted a will 5.6.89 and under the said Will the land in suiti.e. 4/4 Azadpur G.T. Road, Delhi fell to the share of the Plaintiffand the Plaintiff was also granted probate/letter ofadministration of the said Will and the land situated at 4/4Azadpur G.T. Road, Delhi measuring 9700 sq. yds. fell to theexclusive share of the plaintiff and the Plaintiff has therefore,become the absolute owner of the said piece of land. It ispertinent to mention that even the adjoining land bearingNo.4/5 Azadpur G.T. Road, Delhi fell to the share of the otherlegal representatives namely Shri Anil Bhatia, Smt. Renu Bhatiaand Smt. Anuradha Kapoor, which is also under theunauthorised occupation of the Defendants No.1 and 2. Thephotocopy of the letter of probate issued in favour of thePlaintiff is also attached as Annexure P-3.

...

15. That the cause of action arose in favour of the Plaintiffand against the Defendants when the lease deed expired inJune, 2003.”

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

“a) a decree for recovery of possession in respect of plotmeasuring 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 A

BC

DE

F

G

H

Athe Appellant and against the defendants as shown red in theplan attached.

b) the decree for recovery of Rs. 1965000/- being the damages@ Rs. 50000 per month from July 2003 to June 2006 be alsopassed in favor of Plaintiff and against the Defendants.

B

c) A decree for recovery of future mesne profits @Rs.50000/- per mensum from the institution of the suit till the realizationbe also passed.

d) The suit be decreed with costs.

Ce) Any other relief which this Hon’ble Court may deem fit andproper under the circumstances of the case may also be passedin favor of the Plaintiff and against the Defendant.”

14. From the averments in the plaint, it is patently clear that therewere two plots of land, Plot No. 4/4 being the suit property which wasDinherited by the Respondent from his grandmother Smt. RajeshwariBhatia and Plot No. 4/5, an adjacent Plot, which fell in the share of otherlegal representatives of Smt. Rajeshwari Bhatia, namely, Shri Anil Bhatia,Smt. Renu Bhatia and Smt. Anuradha Kapoor. It is alleged that the saidadjacent 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, theEexistence of circumstances giving cause for initiation of action isimperative for initiation of a suit. A suit can only be entertained when thecause of action has arisen and not otherwise. Any future event does notconstitute cause of action. The cause of action is the fact or bundle offacts which would be necessary for the plaintiff to plead and prove, inForder to get a judgment of the Court in his favour.

16. The cause of action for the suit, in this case, is pleaded inparagraphs 11, 12, 13 and 15 which are set out hereinbelow forconvenience:- “11. That the period of the lease has expired and after theGexpiry of the lease period the Plaintiff has been makingrepeated request to the Defendants to handover the vacantpossession of the said piece of land. Instead of vacating thesaid plot the Defendants have been sending the rent chequesin favour of Plaintiff by means of courier. The Plaintiff has H

never accepted the said cheques and has only received thedamages upto June, 2003.

12. After the expiry of the lease, the Defendants were liableto pay damages by way of mesne profits to the Plaintiff forbeing in unauthorized occupation of the piece of land sincethe tenancy had come to an end. That instead of making thepayment of mesne profits the Defendants with some ulteriormotive started sending the cheques @ Rs. 4500/- per monthwhich was not accepted to the Plaintiff. That the tenancy ofthe Defendant was governed by English calendar. It startedon the 1[st] day of month and it ends on the last day of themonth. That the Defendants are liable to pay damages by wayof mesne profits after the expiry of the lease i.e. from June2003 @ Rs.50,000/- per month to the Plaintiff till they vacatethe land.

13. That in order to avoid any technical objection the Plaintiffhas also terminated the tenancy by serving a legal notice dated31.01.06. The copy of the notice sent by the Plaintiff isannexed as Annexure P-4. That the defendants have failed tovacate the premises…

…

15. That the cause of action arose in favour of the Plaintiffand against the Defendants when the lease deed expired inJune, 2003 and the Defendants were called upon to handoverthe vacant possession and also pay the arrears of damages@ Rs. 50000/- per month with effect from July 2003 uptodate. The Defendants have also failed to deliver the possessionthe cause of action arose firstly in the month of July 2003and in any case it has finally arisen when the period of onemonth expired after the service of the notice dated 31.01.2006and is also continuing to arise till today as the Defendanthas failed to do the needful. No reply notice was sent bothunder registered cover and UPC and the same has been dulyserved but of no effect.”

17. In a nutshell, the cause of action is the expiry of the lease ofthe suit property, that is Plot No.4/4 and refusal of the Appellant to vacatethe suit property in spite of request, and the consequential liability of the ABC

D

EF

G

H

AAppellant to the Respondent, to pay damages for wrongful occupationand/or mesne profits for wrongful occupation.

18. From the tenor and style of the plaint, it is absolutely clear thatthe 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 beingBoperated under the name and style of M/s Azadpur Service Station. Thesuit property did not include Plot No. 4/5 which belongs to other legalrepresentatives of Smt. Rajeshwari Bhatia. The owners of Plot No. 4/5had not even joined as Plaintiffs in the suit. The plaint proceeds on thebasis of a lease executed in favour of CALTEX predecessor in interestof the Appellant, which according to the plaintiff, had expired in JuneC2003.

19. Soon after the trial of the suit commenced, the Respondentfiled an application in the suit under Order XII Rule 6 read with Section151 of the Code of Civil Procedure, 1908 (CPC) seeking a summaryjudgment and order/decree for eviction of the Appellant from the suitDproperty.

20. By a judgment and decree of the Delhi High Court in C.S.(O.S.)No. 1828 of 2006 dated 21[st] November 2013, the Appellant was directedto restore the suit property to the Respondent within a period of 12weeks from the date of the order.

E

21. The relevant excerpts from the judgment and decree dated21[st] November 2013 are set out hereinbelow:- “4. Admittedly, the suit property was given on lease to theerstwhile M/s. CALTEX (India) Limited and has been dulyFexhibited as Ex.P-1. Defendant No.1 is the successor of M/sCALTEX (India) Limited and accepted the relationship oflandlord and tenant vis-à-vis the Plaintiff and itself. The landin question was owned by the Plaintiff’s grandfather, Mr. ShadiLal Bhatia and after his death Smt. Rajeshwari Bhatia becamethe landlady. The lease was extended by a lease deed datedG15[th] October 1970. Smt. Bhatia died on 22[nd] November 1993.During her lifetime she executed a Will dated 5[th] June 1989bequeathing the land in question to the Plaintiff. The Plaintiffhas also obtained probate/letter of administration of the saidWill. This fact was also admitted by the Defendant in its writtenstatement. The probate certificate has been placed on record.

H

Defendant No.1 started remitting the rent to the Plaintiffseparately through his attorney Mr. Vipin Arora. The rent inrespect of adjoining land was being paid by Defendant No.1separately to the other legal heirs of the deceased Smt.Rajeshwari Bhatia.

5. Considering that Defendant No.1 has accepted therelationship of landlord and tenant and has been paying rentfor the plot under its occupation to the Plaintiff, it is now notopen to Defendant No.1 to deny the identity of plot whichbelongs to the Plaintiff.

6. In the Written Statement, Defendant No.1 claims that thelease is renewable for a period of 40 years beyond 31[st] March2009. It appears that there is no automatic renewal of thelease. Defendant No.1 has not exercised any such right byissuing a notice to the Plaintiff. On the other hand, thePlaintiff has terminated the lease and filed the present suitfor recovery of possession.

7. The Supreme Court has, in Bharat Petroleum CorporationLimited v. Rama Chandrashekhar Vaidya [decision dated 2[nd]April 2013 in SLP (Civil) No.15 of 2010], negative the pleataken in that case by Defendant No.1 that there is an automaticrenewal of the lease. Similarly, the Supreme Court has, inDepot Superintendent, H.P. Corporation Limited v. KolhapurAgricultural Market Committee, Kolhapur (2007) 6 SCC 159,held that there is no automatic renewal of a lease for apetroleum retail outlet. Consequently, the statement made inpara 9 of the written statement that the lease came to an endon 31[st] March 2009 is an admission by Defendant No.1 thatits continuance in the suit property beyond that date is withoutany legal basis.

8. Consequently, the Plaintiff is entitled, under Order XII Rule6 CPC, to a decree of possession on the basis of the aboveadmission made in the written statement of Defendant No.1.

9. The suit is decreed in terms of prayer (a) and the DefendantNo.1 is directed to restore to the Plaintiff the vacant andpeaceful possession of the suit property as shown in red inthe plan enclosed with the plaint, which is under occupation A

B

CD

EF

G

H

538SUPREME COURT REPORTS

Aof Defendant No.1, within a period of twelve weeks fromtoday.”

22. The Respondent (plaintiff in the suit) was claiming mesneprofits at the rate of Rs.50,000/- per month from July 2003 in respect of9,700 sq. ft. of land being Plot No.4/4. The Court proceeded to decideBthe issue of “Whether the plaintiff was entitled to mesne profits fromthe defendants and if so to what extent?”. Trial commenced in respectof the claim of the Plaintiff (Respondent) for mesne profits. The Courtfound that the lease of Plot No. 4/4, came to an end, by efflux of time inJune 2003. On examination of an approved valuer, the Respondent wasgranted mesne profit at the rate of Rs.50,000/- per month with effectCfrom July 2003 till the vacation of the suit property, by a judgment andorder and decree dated 20[th] August 2018.

23. The Appellant filed Regular First Appeal being RFA No. 13 of2019 in the High Court of Delhi. By a judgment and order dated9[th] January 2019, the Delhi High Court found that the tenancy of theDAppellant in respect of the suit property, stood terminated after theRespondent sent the legal notice dated 31[st] January 2006 terminatingthe tenancy of the Appellant with effect from 28[th] February 2006. TheAppellant’s occupation thus became illegal only from 1[st] March 2006and not from any earlier period.

E24. The High Court partially allowed the Regular First Appealbeing RFA No.13 of 2019 and modified the impugned judgment anddecree by holding that mesne profits would be payable not from July2003 but from 1[st] March 2006.

25. The Respondent filed an application in the Court of AdditionalFDistrict Judge, North Rohini Court, Delhi for execution of the decree ofmesne profits as modified by the High Court.

26. The Appellant contends that the Respondent had filed aninaccurate site plan along with its plaint, based on which judgment anddecree dated 21[st] November 2013 has been passed. There was, thus, anGerror apparent on the face of the said judgment and decree. The Appellant,therefore, filed an application on or about 1[st] May 2015, under Order 41Rule 33 read with Section 151 of the CPC for clarification/rectificationof the decree dated 21[st] November 2013. The said application wasdismissed by an order dated 15[th] May 2015 on the ground of the samebeing barred by limitation.H

27. Since the Respondent had wrongfully taken possession of PlotNo. 4/5 or part thereof, the dealer of the petrol pump/retail outlet, M/sTej Service Station filed an application under Order 21 Rule 99 readwith Section 151 of the CPC seeking appointment of a LocalCommissioner to demarcate the area of the suit property.

28. Pursuant to an order dated 21[st] March 2013 passed by a JointRegistrar of the High Court, the Execution Petition being Ex. P. No. 163of 2014 was transferred to the Court of the Additional District andSessions Judge, North District, Rohini Court, Delhi and the parties weredirected to appear before the Rohini Court on 2[nd] May 2017. On 22[nd]July 2017, the Appellant filed an application before the Additional DistrictJudge, North District, Rohini Court, Delhi for addition of the Land andBuilding Department of the Delhi Administration as party Respondent inthe Execution Petition.

29. On or about 25[th] July 2017, the Appellant filed anotherapplication before the Additional District Judge, North District, RohiniCourt, Delhi, praying for appointment of a Revenue Officer, preferablyKanoongo of the concerned area as a Local Commissioner with a directionon him to demarcate the area of the suit property. Directions were alsosought to ensure that the attachment done under the process of executionof the decree on Plot No. 4/5 where the Appellant had been running thepetrol-pump/retail outlet, M/s Tej Service Station, be removed and thesaid plot be restored to the Appellant.

30. The Managing Partner of M/s Tej Service Station, Shri RameshKumar Yadav, made an application for intervention being IA No. 39324of 2022 in this Court. Pursuant to an order dated 15[th] March 2022 passedin the said application, the intervener, being the Managing Partner of M/s. Tej Service Station has been added as party-Respondent in the SpecialLeave Petition.

31. By judgment and order dated 9[th] January 2019, the said RegularFirst Appeal No. 13 of 2019 filed by the Appellant was partly allowedand the judgment and decree dated 20[th] August 2018 for mesne profitswas modified by directing that mesne profits would be payable from 1[st]March 2006 and not from July 2003 as directed by the Trial Court.

32. By an order dated 15[th] March 2019, the Additional DistrictJudge, North District, Rohini Court, allowed Execution Application No.799 of 2014 filed by the Respondent for possession of the suit premises A

B

C

D

E

F

G

H

Aand dismissed the subsequent applications filed by the Appellant, that is,the application for dismissal of the execution application on the groundof the decree not being executable and the application seeking restorationof possession of Plot No. 4/5, possession whereof had been taken inpart execution of the decree.B33. On or about 29[[th]] March 2019, the Appellant filed Execution B33. On or about 29[[th]] March 2019, the Appellant filed ExecutionFirst Appeal No. 13 of 2019 challenging the order dated 15[th] March2019 in the Delhi High Court. On 19[th] July 2019, the Appellant filed itsobjections as well as the application under Order 21 Rule 26 CPC forstay of the proceedings for execution of the decree for mesne profits.The applications were dismissed by a judgment and order dated 19[th]CJuly 2019.

34. Being aggrieved, the Appellant filed Execution First Appeal30 of 2019. Various interim orders were, from time to time, passed.Ultimately, by an order dated 24[th] November 2021 impugned in this appeal,the High Court of Delhi dismissed Execution First Appeal No. 13 ofD2019 and Execution First Appeal No. 30 of 2019 filed by the Appellant.

35. Mr. Vishwanathan, learned counsel appearing on behalf ofthe Appellant submitted that the suit had been filed for recovery of PlotNo.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 propertyEsituated at 4/4, Azadpur, G.T. Road, Delhi admeasuring 9700 sq. ft. TheAppellant was all along willing to comply with the decree and hand overpossession of Plot No. 4/4 to the Respondent.

36. Mr. Vishwanathan further argued that the Executing Courtwas required to ascertain the exact description of the decretal property,Fthat is, Plot No. 4/4, Azadpur, G.T. Road, Delhi in terms of Order 7 Rule3 and Order 20 Rule 3 of the CPC for the purposes of execution, dischargeor satisfaction of decree within the meaning of Section 47 CPC byappointing a Kanoongo of the concerned area as a local Commissioneras per the law laid down by this Court in Pratibha Singh v. Shanti DeviGPrasad[1].

37. Mr. Vishwanathan argued that the Decree Holder(Respondent) was claiming possession of Plot No.4/5 by relying upon ahandmade plan annexed to the plaint. The suit property was not identified H1 (2003) 2 SCC 330

by boundaries. The handmade map which does not identify Plot No. 4/4being the suit property, cannot be the basis for identification of the plot.

38. Mr. Vishwanathan submitted that the Respondent waswrongfully claiming possession of Plot No.4/5 of which he was not evenowner. Part of the Plot is owned by Mr. Anil Bhatia and the others andthe other part by the Delhi Government.

39. In respect of SLP (C) No. 20737 of 2021, Mr. Vishwanathansubmitted that the Appellant had paid mesne profit as determined by theCourt till 30[th] September 2014. The Appellant had all along indicated itswillingness to handover possession of plot No. 4/4. The decree dated20[th] 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 thedecree of possession against 4/4 Azadpur, Delhi, willingly hedid not do so and instead took possession of wrong propertyi.e. 4/5, causing loss to judgment debtor and thus hisentitlement to mesne profits does not survive.

…

13. Further, it is submitted that the Decree Holder has takenthe possession of land admeasuring 116* 61 from thejudgment Debtor on 15.09.2014, hence the calculation formesne profit for complete area of 9700 sq. ft. after 15.09.2014is flawed and unlawful. The copy of the report of the bailiff isannexed herewith….”

41. Mr. Viswanathan argued that the Respondent has claimedmesne profits for entire decretal area of 9700 sq. ft. after 15[th] September2014. The Respondent Decree Holder cannot claim the entire amountwhen he has taken part possession of land admeasuring 7076 sq. ft. outof which 240 sq. ft. area belong to the Land and Building Department,Delhi Administration.

42. On behalf of Respondent, Mr. Kalra submitted that the decreeof possession obtained by the Respondent had assumed finality. Theexecution proceedings were initiated for recovery of possession. TheRespondent could take possession of 7075 sq. ft. out of the 9700 sq. ft.

AB

C

D

E

F

G

H

Aon 15[th] September 2014. The Appellant was directed to remove thedispensing units, underground tanks, CNG compressor, overhead tanks,which the Appellant has not yet done. The land cannot be used by theRespondent as there are explosives stored and the sale of fuel is stillgoing on.B43. Mr. Kalra emphasised on the fact that there was a site planattached to the plaint which is part of the decree and the decree hasbeen confirmed by the Appellate Court. Mr. Kalra also argued that 4/4and 4/5 are only landmarks as found by the Courts below and nosubstantial question of law is involved. The appeals are thus liable to berejected.C

44. With the greatest of respect, there is no finding by any Courtthat 4/4 or 4/5 are only landmarks. Rather, there is a plethora of documentson record to show that two separate petrol pumps/retail outlets werebeing run on two contiguous plots, one of which was initially run byCALTEX, which later merged into the Appellant and the other by ESSO,Dwhich later merged into the Appellant. There was no connection betweenCALTEX and ESSO. It is also admitted that one of the plots have goneto the share of some other descendants of the original owner, Shadi LalBhatia.

45. It is clear that the decree is not executable against Plot No. 4/E5. The Respondent is liable to restore the possession of Plot No.4/5 tothe Appellant. The Executing Court would have to appoint a LocalCommissioner to demarcate and hand over Plot No.4/4 to the Respondent.

46. It is not necessary for this Court to embark upon a threadbareanalysis and discussion of the lengthy judgment of the High Court, inFappeal before us. Suffice it to mention that the suit was in respect ofPlot No. 4/4. The mesne profits and/or damages were awarded in respectof wrongful occupation of Plot No. 4/4.

47. There can be no doubt that the verdict of the Trial Court hasassumed finality in respect of Plot No. 4/4. The Respondent is entitled toGpossession of Plot No. 4/4. The Respondent is also entitled to mesneprofits at the rate of Rs.50,000/- per month from 1[st] March 2006, asdirected by the High Court to make over, till the date on which theAppellant offered possession of Plot No. 4/4 to the Respondent.

48. The question is whether the Respondent can take possessionHof 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 PlotNo. 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 thatwhere the subject matter of the suit is immovable property, the plaintshall contain a description of the property sufficient to identify it, and incase such property can be identified by boundaries or numbers in arecord of settlement or survey, the plaint shall specify such boundariesor numbers.

50. In Pratibha Singh (supra), this Court held that when a suitfor immovable property had been decreed but the property not definitelyidentified, the defect in the Court record caused by overlooking ofprovisions contained in Order 7 Rule 3 and Order 20 Rule 3 could becured. The Court which passed the decree could supply the omission.Alternatively, exact description of the decretal property might beascertained 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 extentpracticable be allowed to be defeated. At the same time, a decree canonly be executed in respect of the suit property if the suit property iseasily identifiable. The extent of the suit property would have to bedetermined 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 immovableproperty and for rent or mesne profits, the Court may pass adecree- (a) for the possession of the property; (b) for the rents which have accrued on the property duringthe period prior to the institution of the suit or directingan inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as tomesne profits; A

B

C

D

E

F

G

H

(c) directing an inquiry as to rent or mesne profits from theinstitution of the suit until- A

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

(ii) the relinquishment of possession by the judgment-debtorwith notice to the decree-holder through the Court, or B

(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.”

C53. The mesne profit at the rate directed by the Trial Court andconfirmed by the High Court will have to be computed afresh, takinginto account all relevant factors.

54. The contention of the Intervener that M/s Tej Service Stationis located over two adjacent plots, Plot No.4/5 admeasuring 112x60 sq.Dft. being part of Khasra No. 403/90 leased by Smt. Rajeshwari Bhatiaand another plot admeasuring 142x60 sq. ft. being part of Khasra No.66 of Village Azadpur belonging to the Delhi Government requiresconsideration.

55. This Court cannot shut its eyes to the fact that part of the landbelongs to the Delhi Government for which Appellant is paying RevenueEto the Delhi Government.

56. The Appeal relating to the SLP (C) No.20718 of 2021 and theAppeal relating to SLP (C) No.20737 of 2021 are allowed. The impugnedjudgment and order is set aside. The Executing Court shall decide theExecution Applications and all related applications afresh, in the light ofFthe observations made above by appointing a Revenue Officer as LocalCommissioner to demarcate Plot No. 4/4 and make over possession ofthe said plot to the Respondent. Any excess land of which possessionmay have been taken, whether of Plot No.4/5 or any land belonging tothe Delhi Government shall be restored to the Appellant. The mesneGprofits as directed by the Trial Court shall be computed in terms of thedecree of the Trial Court, as modified by the High Court, i.e., with effectfrom 1[st] March 2006 till relinquishment by the Appellant of possession ofthe suit property.

H

Divya Pandey and Anurag Bhaskar(Assisted by : Priyanshu Agarwal, LCRA)

Appeals allowed.