1. The short question that arises for consideration in this appeal is whether a person who is not in possession of the property can obstruct the delivery under Order XXI Rule 97 of the Code of Civil Procedure or claim benefit of adjudication under Order XXI Rule 99 of the Code.

2. 25 cents of land was relinquished by the predecessor-in-interest of the first respondent in E.A.38 of 2011 in E.P.247 of 2010 to the Government for putting up a Public Health Centre in 1967. Since the Government did not utilize the land for the said purpose, the land was sought back. Ultimately it resulted in O.S. 299 of 2003 wherein the first respondent in the E.A. and the petitioner in E.P.247 of 2010 succeeded in getting a decree in his favour enabling him to recover the property from the second respondent Government. That decree has become final.

3. In pursuance to the decree in O.S. 299 of 2003, the decree holder took out execution. When execution proceedings were progressing, the appellant herein came forward with E.A. 38 of 2011 in E.P. 247 of 2010 by which he disputed the right of the decree holder to get delivery of the property.

4. The case put forward by the applicant or the claimant as the case may be in the execution application was that the schedule property in E.A. belonged to him. His father Moosakutty obtained the plaint schedule property along with other properties by partition deed Nos. 1305/1923, 1371/1942 and 710/1971. On the death of Moosakutty the legal heirs effected partition as per document No.247/1981. Petition schedule property along with other items were set apart to the petitioner. At that time, the petitioner was a minor and his mother was looking after the property. After attaining majority, the petitioner had been in absolute possession and enjoyment of the property. Even prior to the year 1971 purchase certificate in respect of the property had been obtained.

5. While things stood thus, the claimant came to know about the fraud played by the father of the first respondent in E.A. 38 of 2011 who is no more and who, according to the claimant had no right or authority over the property, had relinquished the property to the Government. It was done without the consent, knowledge and willingness of the claimant. Neither the first respondent nor his predecessor-in-interest had any authority to relinquish the property in question which belonged to the claimant exclusively. It is pointed out that when the claimant came to know about the fraud played by him, he complained to the officers of the second respondent State. On enquiry, his grievance was found to be true and Ext.A4 bears testimony to the said fact. The property was directed to be returned to him. Since for a long time nothing happened, it led the applicant to file O.S. 197 of 1992 in which both the decree holder in O.S. 299 of 2003 as well as the State were made parties. In the suit the Government represented that they did not intend to hold the property laying any manner of right and based on that representation the suit was not pressed and it happened to be dismissed as nothing remained to be considered in the suit. The claimant was under the presumption that since the State had realised the folly and had sought to rectify the same, steps would be taken to give possession of the property to him.

6. Contrary to his belief and hope, it is alleged that the first and second respondents colluded and the first respondent instituted O.S.299 of 2003 showing only the State as the respondent and obtained a decree for recovery of possession in respect of the property which belonged to the claimant and which was the subject matter of O.S.197 of 1992. It is pointed out that deliberately the first respondent did not make the applicant a party to the proceedings even after fully knowing the nature of the claim raised by the claimant. The definite stand taken by the claimant was that the first respondent herein had neither title nor possession over the suit property an