Or.39, rule 7 of C.P.C - Petition for preservation of properties belongs to the petitioner - as the Govt. is going to demolish the building in road widening scheme - Or.39, rule 1 made absolute against the petitioner infavour of the respondent - Trial court allowed the Petition wrongly - their lordships held that In a suit for injunction, though the question of possession as on the date of filing of the suit is most relevant, there may be other ancillary and incidental questions as to the conduct of the parties before the Court. The concept of possession in law should take in its spectrum all rights, liabilities, immunities and claims vis-`-vis the property which is said to be in possession. When the Court recorded a prima facie finding that Gayatri bai is in possession, she was also in law entitled to take advantage of that presumption. Unless the defendant properly pleads and proves at the earliest stage regarding any such movables or immovables attached to the immovable property, no defendant can be heard of saying that his belongings were lying in the disputed property. - 2015 A.P.(2001) MSKLAWREPORTS


<CIVIL PROCEDURE CODE - - Or.39 Rr.1 and 2 - - Or.39 R.7 - - Suit for possession
- - Interim injuction granted was made absolute - - Later on defendant filed a
petition to remove and keep in safe custody certain movables laying in the
disputed premises alleging that those belong to him and may get spoiled in case
of demolition of the building for road widening - - Lower Court ordered handing
over such articles after preparing necessary list to the respondent/defendant.

        Scope and ambit  of Or.39 R.7 and when the power thereunder to be
exercised - - Laid down.

>HELD:

        Order 39 Rule 7 CPC empowers the Court to make an order for detention,
preservation and inspection of any property which is the subject matter of the
suit or as to which any question may arise in the suit.  The submission that the
power under Rule 7 can be exercised only in respect of the subject matter is
therefore not well founded. The power is not only with regard to subject matter
of the suit but also with reference to any question that may arise in the suit.
It is within the discretion of the Court to exercise power under relevant rule
even with regard to a question that may arise subsequently.  However, while
exercising the power for passing an order of detention, preservation and
inspection of the subject matter of property no difficulty would arise.
However, in relation to the other aspect as to the questions that may arise in
the situation, the trial Court should be guided by the pleadings of the parties.
In a suit for injunction, though the question of possession as on the date of
filing of the suit is most relevant, there may be other ancillary and incidental
questions as to the conduct of the parties before the Court.  As an alternative
plea, a defendant is always entitled to say that he has been forcibly evicted
prior to filing of the suit and during such operation, some of his belongings
remained in the suit schedule property and in such case it is always a question
in relation to the main dispute between the parties...The concept of possession
in law should take in its spectrum all rights, liabilities, immunities and
claims vis-`-vis the property which is said to be in possession.  There is
nothing wrong to presume that when a person is stated to be in possession of a
residential house, he shall be deemed to be in possession of all the movables in
relation to the house as well as the immovable attachments in the house.  When
the Court recorded a prima facie finding that Gayatri bai is in possession, she
was also in law entitled to take advantage of that presumption.  Unless the
defendant properly pleads and proves at the earliest stage regarding any such
movables or immovables attached to the immovable property, no defendant can be
heard of saying that his belongings were lying in the disputed property.- 2015 A.P.(2001) MSKLAWREPORTS

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