Das Gupta, J.
1. This Rule raises the question whether the Court, in ordering delivery of possession under Order 21, Rule 95, Civil P. C. can order removal of the huts standing on the land, where the auction-purchaser, who asked for delivery of possession, had purchased the land but had not purchased the huts.
2. The words of Order 21, Rule 95 make provision for removing any person who refuses to vacate the property of which possession is to be given. Specific provision has not, however, been made therein for removal of any structures.
3. Reliance is placed by Mr. Bakshi, on behalf of the petitioner, on the observations of Rankin C. J. in the case of The Government of Bengal v. Alimaddin : AIR1933Cal469 , which though a criminal case, did raise this question of the duties of the Court's officers acting under a writ under Order 21, Rule 95, Civil P. C. The question which arose there was whether the accused persons had any right of private defence against the act of the officer in demolishing the huts. The Nazir was sent there to execute a writ under Order 21, Rule 95. The learned trial Magistrate had held that the Nazir was not entitled to demolish the structures and so the plea of private defence was available to the accused persons. In considering this question, Rankin C. J. said that it cannot be said for a moment that because the ordinary writ under Order 21, Rule 95, Civil P. C., does not particularly mention delivery of huts, or removal of huts, the huts cannot be removed. His Lordship proceeded to observe :
'The auction-purchaser is entitled to get the property without the property being burdened with those huts. As a part of delivering possession, the taking down of those huts does not appear to have done with any disregard to any right of the judgment-debtors which they had under the proper procedure.'
4. Even though this decision was in a criminal case, I have no doubt in my mind that this is a clear and good authority for holding that Order 21, Rule 95, Civil P. C., does entitle the auction purchaser to get the property without its being burdened with those huts and that as a pact of delivering possession the Court's officer can take down those huts provided be does it with due regard to the right of the judgment-debtor.
5. Against this, reliance was placed by the learned advocate for the opposite parties on two decisions--one in the case of Radha Gobind v. Brijendro Coomar, 18 W. R. 527, and the other a more recent decision, in the case of Bir Bikram Kishore v. Raj Kumar Pal : AIR1934Cal751 .
6. In the first case, the plaintiff had obtained a decree in a suit for possession and the question arose whether in executing a decree for khas possession, the executing Court could direct demolition of the building situated on the land. As a result of an agreement between the parties the actual order passed was that the defendant was allowed two months' time 'within which, if he so pleases, he may vacate the land and carry away the material of any buildings thereon.' On the question of law, whether the executing Court has a right to direct demolition the opinion was expressed thus :
'In our opinion, it is hardly within the province of the Court executing a decree to direct that the building; should be pulled down; that is a matter for the decree-holder to consider after he has obtained possession. Any opposition or resistance for removing out of the way by proceedings under Section 223, it will remain open to do what he thinks proper in the matter.'
7. It is to be noticed that in this case as there was an agreement between the parties the actual decision given was not based on this expression of opinion. It is further to be noticed as already indicated, that this was a decree for khas possession and the decree had not mentioned anything as regards whether the huts should be removed or not,
8. In the latter case, the head-note runs thus:
'When there are certain structures on land purchased in execution of a decree, such structures not being covered by the sale, there can be no demolition of the structures for the purposes of delivery of possession under Order 21, Rule 95 of the Code which only contemplates removal of persons refusing to vacate the purchased properties, i, e. in the present case the land.
The possession which the Court will give will be mere vacant possession but will not be concerned with any act of demolition. Any farther action which the purchaser will take will be his own act and must be such as the law will allow.'
9. From the judgment of the Court, however, it appears that the decision was not in as wide a language as indicated in the head-note. In this case the appellant had prayed for delivery of possession by demolition of certain pucca structures. The decision of the Court was that this prayer for demolition of the pucca structures cannot be allowed and after discussing the words of Order 21, Rule 35 and Order 21, Rule 95, their Lordships proceeded to remark :
'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 structure has, therefore, been rightly refused.'
10. Thereafter the Court proceeded to mention the judgment of Rankin C. J., in the case of the Government of Bengal v. Alimaddin : AIR1933Cal469 , as mentioned above, and also the case of Radha Gobind v. Brijendro Coomar, 18 W. R. 527, and said that the view they were taking found support in the Court's decision in the above Weekly Reporter case.
11. I am unable to see any observation in this judgment on the question indicating that the observations of Kankin C. J., in the case referred to above were incorrect in law. There is just a statement that 'the observations were not pronounced as a decision on any contention to that effect.' As I have already pointed out, however, these observations were directly a decision on the claim of the right of private defence which was raised on behalf of the accused.
12. The position, therefore, is that the decision of the Court in the case of Bir Bikrain Kishore v. Raj Kumar Pal, 38 C. W. N. 1051 : (A. I. B. (21) 1934 Cal. 751) was on the question of demolition of a pucca structure and as I have already pointed out in dealing with the question the Court, at least in two parts of its judgment, laid stress on the word 'pucca'. The decision of Rankin C. J. was as regards kutcha huts. In the present case, the structures on the land are admittedly kutcha. On consideration of all these circumstances, I have no hesitation in respectfully following the view of law which was laid down by Rankin C. J., in the case of the Government of Bengal v. Alimaddin : AIR1933Cal469 .
13. Accordingly, in modification of the order of the learned Munsif, I direct that the petitioner will obtain delivery of possession of the land after demolition of the huts, if necessary in case the opposite parties refuse to remove the huts within a reasonable time. The opposite parties are allowed time till 1st October 1949, for removing the huts. If that is not done, the Court will direct removal by the Court's Officers who may be entrusted to give delivery of possession under Order 21, Rule 95, Civil P. C. The Court will not direct any delivery of possession to be made before 1st October 1949. If before that date, the opposite parties do not vacate the land, the Court should, in directing delivery of possession under Order 21, Rule 95, Civil P. C., pass such orders as may be necessary for removing all persons from the property and also for demolishing the huts.
14. I make no order as to costs.