1. The appellant as decree-holder has purchased a taluk in execution of a rent decree and has applied for delivery of possession under Order 21, Rule 95 of the Code by demolition of pucca structures. The Munsif held that the prayer for delivery of possession of the land by breaking down the building on it cannot be entertained and 'delivery of possession of the land only should be given.' The Subordinate Judge on appeal affirmed the said order of the Munsif.
2. In our opinion the prayer of the appellant for delivery of possession by demoliton of the pucca structures cannot be allowed. Order 21, Rule 95 of the Code entitles the purchasers to be put in possession of the purchased properties- the lands in this case-'and, if need be by removing any person who refuses to vacate the same.' The acts necessary to be done by the officer who is entrusted with the duty of executing a writ for delivery of possession issued under this Rule must vary according to the circumstances of each particular case, the only test of sufficiency of such acts being that they should put the purchaser in effective and complete possession as against the judgment-debtor or his representatives or persons claiming under a title created by him subsequent to the attachment of the property. If the judgment-debtor or any such persons refuses to vacate he has to be removed, because otherwise the delivery falls short of the test. Order 21, Rule 35, sub-Rules (1) and (3) relate to the same kind of possession, namely actual or khas possession which the holder of a decree is entitled to, as a purchaser is entitled to get under Order 21, Rule 95. Sub-Rule (1), Rule 35, is worded similarly as Rule 95; and Sub-Rule (3), Rule 35 lays down a special procedure in respect of a building or enclosure. But nowhere is it said in the law that the demolition of a pucca structure which is on the land covered by a decree or by a purchase made in execution of a decree is necessary in order to make the possession delivered effective and complete as actual or khas possession. The prayer for demolition of the structures therefore has been rightly refused.
3. The appellant has drawn our attention to certain observations of Rankin, C. J., in the case of 1933 Cal 469 Government of Bengal v. Alimaddin, 1933 Cal 469, as suggesting that the auction-purchaser is entitled to have the property without the property being burdened with the huts, which were the structures in that case. The learned Judge before whom the case was cited was inclined to think that in that case the huts were probably erected after the attachment of the property purchased. Whether this is correct or not we cannot say ; but in any case the observations were not pronounced as a decision on any contention to that effect. The view we take of the question finds support in the decision of this Court in the case of 18 W R 527(2), in which the question was directly raised and decided, in the case of some buildings which were not covered by the decree which was sought to be executed by the decree-holder concerned. Also in the judgment of this Court in M.A. No. 475 of 1926, not reported, it has been observed:
If there is any structure of the defendants judgment-debtors the plaintiffs in taking khas possession of the lands would get khas possession of the structures also, if not previously removed by the judgment-debtors and then the plaintiffs may remove them or keep them up as they choose, etc.
4. The possession which the Court will give will not, in our opinion be concerned with any act of demolition. Any further action which the appellant will take will be his own act and must be -such as the law will allow. The appeal is dismissed, with costs 2 gold mohurs.