Point of Law : If person’s legal possession or physical possession is not affected, that person cannot maintain a petition under Order XXI Rule 97 CPC.

JUDGMENT :

A. Muhamed Mustaque, J.

Can a person claiming as a co-owner obstruct the delivery of a building, pursuant to an order of eviction obtained by another co-owner, is the question to be decided in this original petition filed under Article 227 of the Constitution.

2. The petitioner obtained an order of eviction against one Sadanandan, under the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the 'Act'). The order of eviction attained finality by dismissal of the revision (R.C.R.No.129/2016) by this Court as early as on 23/3/2017. The petitioner, thereafter, filed an execution petition. It appears that several attempts have been made to obtain delivery through the execution court including with the aid of the police. Respondents 1 to 3 herein filed an execution application under Rule 97 & 98 of Order XX1 of the Code of Civil Procedure. Their claim was that they have a share in the tenanted premises and the petitioner herein is only a co-owner along with them. According to them, the rent control petition was filed without their consent and they are not interested in evicting the tenant. The Rent Controller, after hearing both sides, came to the conclusion that the respondents 1 to 3 are the co-owners and the tenanted premises being a dwelling house cannot be claimed by a person (petitioner), not being the member of the family of the original owner of the building, and such person is not entitled to get possession of the dwelling house. This finding was made with reference to Section 44 of the Transfer of Property Act. Challenging this order, this original petition was filed.

3. The first objection that was raised before this Court is on the maintainability of the original petition in the light of the remedy available to the petitioner to challenge the impugned order in appeal, as provided under Rule 103 of Order XXI CPC. We shall answer the objection relating to maintainability of the original petition at the later stage, after adverting to the nature of the right that can be claimed by a co-owner in objecting to the delivery of a building obtained by another co-owner.

4. There cannot be any dispute as to the maintainability of the eviction petition by one of the co-owners without conjunction or consent of the other co-owners. See the judgments of the Hon'ble Supreme Court in Om Prakash and Another v. Mishri Lal (Dead) Represented by His Legal Representative Savitri Devi and Another [(2017) 5 SCC 451] and India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (Dead) by LRs. Savitri Agarwalla (Smt.) and Others [(2004) 3 SCC 178].

5. The order of eviction obtained by one of the co-owners is perfectly legal and cannot be treated as null and void.

6. We shall now advert to Rule 97 Order XX1 CPC and other provisions related to resistance in delivery of possession to the decree holder or the auction purchaser etc. Order XXI Rule 97 CPC is the provision available to a person to lawfully resist the delivery of possession in execution. It is open for a person to resist the delivery either before or after actual delivery. {See the judgment in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Another [(1997) 3 SCC 694)]}. The scheme of statutory provisions under Order XXI Rule 97 CPC followed by other provisions, is to protect the legal possession or physical possession of the person raising objection to the delivery, on any legally sustainable ground.

7. The legal possession denotes control over the immovable property, it is not necessary that the person should have actual possession to resist the delivery in the execution. {See the judgment of the Apex Court in Ashan Devi and Another v. Phulwasi Devi and Others [(2003) 12 SCC 219]}. The actual possession means, physical possession. {See the judgment of the Apex Court distinguishing between legal and physical possession, Sadashiv Shyama Samant (Dead) through the Lrs. and Others v. Anita Anant Sawant [(2010) 3 SCC 385]}.

8. The person raising obstruction before