Provisions of Order 21, Rule 97 are necessary for being followed while passing order to remove superstructure by the Court.

This revision petition arises out of proceedings of the Court of Small Causes, Madras, under section 41 of the Presidency Small Cause Courts Act. The respondent, Sri Tiruvalluva Nainar temple, leased a certain vacant’ land to the petitioner for agricultural purposes. They erected certain huts on the land. The land-holder i.e., the respondent terminated the tenancy and, in order to recover possession of the property, applied under section 41 of the Presidency Small Cause Courts Act for delivery of possession of the property. Of the petitioners, the 1st petitioner admitted the claim. of the temple for possession of the property and the 2nd petitioner was ex parte. The application was allowed and the bailiff was directed to deliver possession of the property to the respondent. When the bailiff went to deliver possession of the property, he found there were four huts put up by the petitioners on the land and, as there was no order directing removal of the huts, he declined to remove them and deliver possession to the respondent. Thereafter, the respondent filed an application to direct the bailiff to remove the four huts put up by the petitioners on the suit land and deliver vacant possession of the suit land to the respondent.

Though in the application under section 41 of the Act, the petitioners raised no dispute in this application however, they raised the contention that the Court had no power to direct the bailiff to remove the huts and put the landlord in vacant possession of the land. In other words, their contention was that the Court can no doubt direct delivery of possession but the Court had no machinery open to it to make effective its own order and to enforce it. The learned Small Cause Judge considered that the situation of that Court was not so helpless as contended by the present petitioners and held that it had ample jurisdiction to direct its own officer the bailiff, to remove the huts and to deliver vacant possession of the land to the landlord.

In this revision petition, it was strenuously contended that the Court had no jurisdiction to issue a direction to the bailiff to remove the huts and deliver vacant possession of the land, for, according to the learned counsel for the petitioners, the machinery provided under the Small Cause Courts Act was defective in that no provision to meet such a contingency was made in the Act.

The question is whether the Court had jurisdiction to make effective its own order or not. Section 41 of the Presidency Small Cause Courts Act has only a limited operation and applies only to cases where the land or immovable property was previously in the possession of a tenant or in the possession of a person holding possession of the land with the permission of the owner and an application could be made after termination of the tenancy or the determination of the permission which was granted to the person in possession. Under law as provided in the Transfer of Property Act, clause (h) of section 108 after the determination of the lease the lessee is given the right, while he is in possession of the property, to remove all things, which he has attached to the earth. This right however enures to him so long as he is in possession of the property leased but not afterwards. Notwithstanding the determination of the lease, so long as he is in possession of the property, he is entitled to remove it but, if he leaves the property, he has no right to the property and to remove it and the fixtures become the property of the lessor. Under this principle of law, when once an order for possession is made after the termination of the tenancy under section 41 of the Act for delivery of possession of the property, it is open to the lessee in possession to remove the articles before he leaves possession of the property. If he does not, the lessor is entitled to delivery of possession of the property along with the fixtures, i.e., the huts.

In this case, there is no evidence that the lessees after th