In an enquiry under Order XXI Rule 97, the court focuses on determining the rights of the obstructors in possession of the property, and there is no need to go into the title of the decree holder even if questioned by the obstructor.

1. Civil Miscellaneous Second Appeal against the judgment and decree of the Principal Sub Judge, Pondicherry dated 25.10.2010 in A.S.No.34 of 2008 confirming the judgment and decree dated 17.11.2008 in E.A.No.240 of 2001 in E.P.No.185 of 2000 in O.S.No.460 of 1982 on the file of the II Additional District Munsif, Pondicherry. Respondents 2 to 6 in E.A.No.240 of 2001 in E.P.No.185 of 2000 in O.S.No.460 of 1982 on the file of the III Additional District Munsif, Puducherry are the appellants in this civil miscellaneous second appeal.

2. The suit in O.S.No.460 of 1982 was filed by the first respondent herein against one Gundu Govindasamy for declaration of his title and possession of three pieces of immovable property and the suit was decreed. As per the decree, the defendant viz., Gundu Govindasamy was directed to hand over vacant possession of the encroached portion, marked as 'A' 'B' and 'C' in Ex.C2 the surveyor's sketch, to the plaintiff. The said judgment debtor filed appeal in A.S.No.104 of 1988 challenging the judgment and decree before the Principal District Judge, Pondicherry and that appeal was dismissed and in Second Appeal No.1389 of 1989 filed by the judgment debtor before this court, this court also confirmed the finding of the Trial Court and the lower appellate court and dismissed the appeal. Thereafter, the first respondent herein filed E.P.No.185 of 2000 to execute the decree and in respect of B and C schedule properties are concerned, there was no dispute and he was able to get possession of the property and in respect of A portion of the suit property, the appellants raised objections to the execution and therefore, the decree holder, the first respondent herein filed E.A.No.240 of 2001 under Order 21 Rule 97 for removal of obstruction and that petition was allowed by the II Additional District Munsif, Pondicherry and as against the same, the appellants filed appeal in A.S.No.34 of 2008 and the lower appellate court also confirmed the finding of the Trial Court and dismissed the appeal. As against the same, the present civil miscellaneous second appeal is filed.

3. The following substantial questions of law are raised by the appellant in this appeal:-

"a) Whether the courts below are justified in directing removal of obstruction even in the absence of proof of title with the first respondent?

b) Whether the courts below have not overlooked the statutory mandate under Order 21 Rule 99, 101 of the Code of Civil Procedure and whether its order in not adverting to title is incomplete?

c) Whether the courts below have not shifted the burden of proof on the appellants when it is the obligation of the first respondent to establish title?

d) In the absence of filing any documents at the instance of the first respondent are the courts below justified in directing removal of obstruction?"

4. Mr.V.Raghavachari, learned counsel for the appellants submitted that the courts below without appreciating the scope of Order XXI Rule 97 and without appreciating the fact that the appellants are claiming to be in possession of the A schedule property on their own right and not claiming any right through the judgment debtor or his legal heirs and without appreciating the decree obtained by the first respondent is a nullity and cannot be enforced, dismissed the claim of the appellants and therefore, the orders of the court below are liable to be set aside. It is submitted by the learned counsel Mr.V.Raghavachari that the case of the first respondent/decree holder was that the suit property is situate in Cadaster No.492 and is correlated to new field No.152/5 and Cadaster No.492 BIS is correlated to new field No.152/4 and even as per the Commissioner's plan, Exs.C1 and C2, 'A' portion marked in the said plan comes within Cadaster 492 BIS equivalent to new field No.152/4 and the decree holder did not claim any right over Cadaster 492 BIS and he claims right only in respect of Cadaster 492 which is new field No.152/5 and therefore,