( 1 ) THIS appeal arises out of the Judgement and decree dated 21. 07. 1992 passed by the learned Subordinate Judge, Medak in the claim petition in E. A. No. 5 of 1984 filed in E. P. No. 10 of 1983 in O. S. No. 37 of 1969. ( 2 ) TO avoid any confusion it is expedient to refer the parties as they are arrayed in the claim petition. The petitioner is the third party to the Suit, O. S. No. 37 of 1969 filed on the file of Subordinate Judge Medak and the consequential E. P. No. 10 of 1983 filed in execution of the decree passed therein. The first respondent filed the said suit for partition against the respondents 2 and 3 who are the defendants 1 and 2 respectively in the suit along with one Kanakamma. The said Kanakamma died during the pendency of the suit. The suit was dismissed at the culmination of the trial. The appeal in A. S. No. 25 of 1970 filed by the plaintiff-appellant was allowed by a learned single Judge of this Court reversing the Judgement and decree in the suit. The Letters Patent Appeal No. 5 of 1972 filed against the Judgement and decree passed in A. S. No. 25 of 1970 was allowed. However, in view of the compromise entered into between the respondents 1 and 2 (who are the plaintiff and the first defendant therein) agreeing inter alia by the second respondent to give 1/6th share to the 1st respondent, although he was not entitled to receive, a decree was passed to that extent in terms of the compromise. Thus, out of the 1/3 share of the second respondent, 1/6th share was given to the 1st respondent (the plaintiff in the suit ). ( 3 ) THE 1st respondent filed a petition in I. A. No. 363 of 1981 and eventually took possession of 1/6th share out of the second respondent s share pursuant to the final decree passed therein. The third respondent also filed I. A. No. 363 of 1982 and eventually final decree was passed on 21. 10. 1982 in his favour. He filed E. P. No. 10 of 1983 for execution. The property in question is a house bearing No. 2-1-83 situate in Medak consisting of one room and kitchen. The third respondent also filed I. A. No. 363 of 1982 and eventually final decree was passed on 21. 10. 1982 in his favour. He filed E. P. No. 10 of 1983 for execution. The property in question is a house bearing No. 2-1-83 situate in Medak consisting of one room and kitchen. When the property was ordered to be delivered, the petitioner approached the executing Court through the claim petition in E. A. No. 5 of 1984 mentioning inter alia that he was the owner and possessor of a portion of the house bearing No. 2-1-83 consisting of one room and kitchen as he had been enjoying the said room and kitchen in his own right for more than 35 years to the knowledge of the respondents; and that he perfected his title by adverse possession by paying the tax collectively along with the respondents and, therefore, the decree in execution would not bind him. The petitioner further claimed that he came to know about the collusive decree in O. S. No. 37 of 1969 only on 07. 05. 1983 and since he was not claiming any right through any of the parties to the suit and he was claiming independently on his own right, the decree in execution was illegal and unexecutable. He further claimed that the, respondent No. 3 (second defendant) was not entitled to take possession of the suit house except symbolic possession and that too under due process of law and, therefore, he sought for a direction to the third respondent not to take possession of the suit property. ( 4 ) THE respondents 2 and 3 resisted the claim petition by filing two separate counters. It is the case of the respondent No. 2 that the petitioner is son of one Srinivasulu and his description as mentioned in the petition showing him, as son of Krishna Murthy is not correct and respondents 2 and 3 are the sons of late Krishna Murthy but not the petitioner. The fact that the petitioner was brought up by their father late Krishna Murthy as a guardian due to the death of the petitioner s father Srinivasulu, would not confer any right or proprietary interest over the properties of late Krishna Murthy to the petitioner. The fact that the petitioner was brought up by their father late Krishna Murthy as a guardian due to the death of the petitioner s father Srinivasulu, would not confer any right or proprietary interest over the properties of late Krishna Murthy to the petitioner. The partition was effected by the Commissioner and the green portion shown in the report of the Commissioner was allotted to the second respondent towards his 1/6th share. The claim of the petitioner over the room, which in fact had fallen towards 1/6th share of the second respondent, is thus untenable and unsustainable. ( 5 ) IT is the case of the third respondent that the petitioner being the son of one Srinivasulu and was brought up by late Krishna Murthy, the father of the respondents 2 and 3, taking advantage of the same, used to represent that he was under the guardianship of Krishna Murthy but that would not confer any right or title on him over the property belonging to late Krishna Murthy or his sons. The petitioner, therefore, had no right whatsoever over the schedule property including the suit house bearing No. 2-1-83. The suit house was not in the occupation of the petitioner either as a tenant or as a person entitled to occupy the same. The third respondent denied the allegation of the petitioner paying tax collectively. It is his plea that even otherwise the collective remittance if any neither confer any possession exclusively in his own right nor any interest over the property and that the possession of the petitioner, if any, was only as a trespasser. It is further pleaded that on the own showing of the petitioner his claim for adverse possession was not tenable and, therefore, his claim petition is liable to be dismissed. ( 6 ) AT the time of the enquiry, five witnesses were examined on the side of the petitioner including himself as P. W. 1 and the documents Exs. A. 1 to A. 17 were got marked. Three witnesses were examined on the side of the third respondent including himself as R. W. 1 and the documents Exs. B. 1 to B. 19 were got marked. A. 1 to A. 17 were got marked. Three witnesses were examined on the side of the third respondent including himself as R. W. 1 and the documents Exs. B. 1 to B. 19 were got marked. Considering the evidence, both oral and documentary adduced on either side, the Court below was of the view that the petitioner was a member of joint Hindu family having a common ancestor by name Varada Rajulu and, therefore, the decree in O. S. No. 37 of 1969 having been obtained without adding the necessary parties was bad and, therefore, the Judgement and decree would not bind the petitioner or his late father. The Court below further held that the petitioner had been in actual possession of the suit property comprising one room and one kitchen and the bailiff did not dispossess him. On the point of adverse possession, it was held that in the absence of documentary evidence, the title by way of adverse possession of the claim petitioner could not be answered at this stage. On the point of maintainability of the petition, it was held that the petition could be maintained under Order 21, Rule 36 of the Code of Civil Procedure ( the Code for brevity ). ( 7 ) HAVING been aggrieved by the said Judgement and decree, as aforesaid, the appellants have filed the present appeal. The first appellant herein is the third respondent in the claim petition. The appellants 2 to 7 herein are the legal heirs of the second respondent in the claim petition who since died pending adjudication of the claim petition. The first respondent herein is the claimant petitioner. ( 8 ) SRI V. L. N. G. K. Murthy, learned counsel appearing for the appellants contends that, the claim petition filed under Order 21, Rule 36 of the Code is not maintainable; the finding of the Court below that the petition schedule property is ancestral property is incorrect as it is not even the case of the petitioner himself; the claim of the petitioner based on the plea of adverse possession itself is destructive of the claim of the petitioner as a co-parcener; and the claimant-petitioner has not established his right and title by prescription over the petition schedule property. ( 9 ) SRI C. R. Pratap Reddy, learned counsel appearing for the first respondent contends that, the final decree itself is vitiated since there had been no decree in favour of the first appellant, who is the third respondent in the claim petition, inasmuch as the suit was dismissed; obviously the claimant being the third party to the decree and E. P. , they do not bind him; and the claim petition can be maintained under the provisions of Order 21, Rule 97 or 99, as the case may be, of the Code. ( 10 ) HAVING regard to the above contentions, the points that arise for my determination in this appeal are: 1) Whether the petition schedule property is ancestral property and, therefore, the petitioner has got any right over the same? 2) Whether the claim petition is maintainable under the provisions mentioned therein or under any other provisions in the Code? 3) Whether the petitioner perfected his title by adverse possession ( 11 ) THE oral evidence on the point is that of P. W. 1 the petitioner himself, besides P. Ws. 2 to 5. The oral testimony of P. Ws. 2 to 5 will not help adjudicating the claim of the petitioner that the petition schedule property is the ancestral property inasmuch as their evidence only shows that the claimant had been residing in the petition schedule house; and that late Krishna Murthy treated him as his son and, therefore, the petitioner has been shown as son of late Krishna Murthy in all school records as well as college records. Therefore, there remains only the ipse dixit of P. W. 1. ( 12 ) THE relationship inter se between the parties of course is not in dispute. All of them claim through the common ancestor by name Varada Rajulu who had two wives by name, Sangamma and Ramnujamma. Through Sangamma, late Varada Rajulu had three sons by name, Srinivasulu, Krishna Murthy and Kannaiah, and one daughter by name Andalamma. Lokayya and the claim petitioner Parankusam are the sons of late Srinivasulu and Srinivasulu died when the petitioner was aged about two years. The respondents 2 and 3 are the sons of late Krishna Murthy. Kanakamma and Kuppamma are their sisters. Through his second wife, late Varada Rajulu has three sons and one daughter. That branch is not concerned in the present proceedings. The respondents 2 and 3 are the sons of late Krishna Murthy. Kanakamma and Kuppamma are their sisters. Through his second wife, late Varada Rajulu has three sons and one daughter. That branch is not concerned in the present proceedings. ( 13 ) KANNAIAH, filed the suit O. S. 37/69 against Venkata Rao and Rajagopal the two sons of late Krishna Murthy and daughter Kanakamma as D. 1 to D. 3 leaving the other daughter Kuppamma. He claimed the house property as joint property of himself and his brother-late Krishna Murthy. The petitioner and his brother Lokayya obviously are not the parties to the suit. The suit was resisted on the premise that it was the self-acquired property of late Krishna Murthy. The suit was dismissed by the trial Court. However, in A. S. No. 25 of 1970 the suit was decreed. L. P. A. No. 5 of 1972 filed against the Judgement and decree passed in A. S. No. 25 of 1970 was allowed reversing the Judgement and decree passed by the learned single Judge of this Court in A. s. No. 25 of 1970. It is obvious, therefore, that the claim of the plaintiff in O. S. No. 37 of 1969 that the suit house was joint family property between himself and his brother-late Krishna Murthy was not ultimately accepted. It is only under a compromise entered into between the first respondent and the second respondent (first defendant in the suit), 1/6th share was given to him from out of the 1/3rd share of the second respondent in the suit house, but not on merits. Accordingly, the first respondent by filing a final decree petition in I. A. No. 363 of 1981 got his 1/6th share separated from the share of the second respondent. The third respondent who is the second defendant in the suit, got 2/3rd share in the property. He filed I. A. No. 363 of 1982 for final decree and eventually final decree was passed in his favour. It is he who filed E. P. No. 10 of 1983 for delivery of his 2/3rd share in execution of the final decree. These facts are discernible from the material on record. ( 14 ) IT may be mentioned at the outset that the petitioner has not pleaded in his petition that the property in dispute is ancestral property. It is he who filed E. P. No. 10 of 1983 for delivery of his 2/3rd share in execution of the final decree. These facts are discernible from the material on record. ( 14 ) IT may be mentioned at the outset that the petitioner has not pleaded in his petition that the property in dispute is ancestral property. As a matter of that, it is nobody s case. As can be seen from the averments made in the claim petition, the plea inter alia of the petitioner seems to be that he is the owner and possessor of a part of the house bearing No. 2-1-83 and has been enjoying the same on his own right for more than 35 years to the knowledge of the respondents and, therefore, he has perfected his title by adverse possession. In para 6 of the claim petition, it has been specifically averred thus:"6. The petitioner submits that the respondent No. 3 is trying to take physical possession of the suit house i. e. one room and kitchen as shown in the map from the possession of the petitioner. The respondent No. 3 is not entitled to take possession of the suit house but he can take only symbolic possession under the law. If the respondent No. 3 is not restrained from taking physical possession of the disputed portion of the house, the petitioner will suffer irreparable loss. The respondent No. 3 has to take possession of the suit room and kitchen from the petitioner under the process of law and he cannot take the law into his hands. " ( 15 ) FROM the specific plea set out in the petition that the petitioner is the owner and possessor of the suit house as excerpted herein above, his claim seems to be that he has been in possession of the suit house in his own right and perfected his title by adverse possession and in execution of the decree in O. S. No. 37 of 1969, he cannot be dispossessed and it is only under due process of law his possession can be taken away and, therefore, the first respondent (plaintiff) is entitled to only symbolic possession. What has been running in the mind of the petitioner at the time when he has given instructions to his counsel for drafting the claim petition is not known but it is perceivable from the above averments made in the petition and from the above discussion that it is not his case that the disputed property is the ancestral property or joint family property; and that he has any share in the said property. Obviously, the petitioner has not claimed any share in the suit property along with the respondents 2 and 3. He claims that he has been brought up by late Krishna Murthy, the father of the respondents 2 and 3; and that he has been treated as his son by late Krishna Murthy; and that it is he who maintained late Krishna Murthy and who performed obsequies of late Krishna Murthy and his wife. Perhaps, on account of the same, the petitioner described himself as the son of late Krishna Murthy. Even on that score, he has not claimed a share in the property along with the respondents 2 and 3. Even otherwise, since it is his specific plea that he has been brought up by late Krishna Murthy, he is not entitled to any share in the property of late Krishna Murthy being a fostered son, nor did he set up a plea that since the property was the joint family property of all three sons of late Varada Rajulu, he being one of the sons of late Srinivasulu had share in the property. In that view of the matter, for want of necessary plea, it cannot now be contended that the petitioner has a share in the suit property. For the first time, in his evidence as P. W. 1, he deposed that the petition schedule property is his ancestral property. This evidence of P. W. 1 having not been consistent with his plea in the petition cannot, therefore, be accepted. Therefore, the claim of the petitioner that the petition schedule property is his ancestral property is nothing but an afterthought and cannot be countenanced. The finding of the Court below in regard thereto, for the above reasons, is certainly not correct. ( 16 ) OBVIOUSLY, the Judgement and decree in the suit O. S. No. 37 of 1969 do not bind the petitioner he being not a party thereto. The finding of the Court below in regard thereto, for the above reasons, is certainly not correct. ( 16 ) OBVIOUSLY, the Judgement and decree in the suit O. S. No. 37 of 1969 do not bind the petitioner he being not a party thereto. To that extent, the finding of the Court below is correct. In view of the voluminous evidence adduced on the side of the petitioner both oral as well as documentary by means of various entries in voters list, the possession of the petitioner over the petition schedule property cannot be doubted. The finding in regard thereto by the trial Court is, therefore, well founded. But, there is no clear cut evidence on record to show that since what time the petitioner has been in possession of the petition schedule house. This becomes germane having regard to the plea of adverse possession taken by the petitioner. However, the Court below was of the view that for want of documentary evidence, the title by way of adverse possession of the petitioner could not be answered. There is no clear finding on the issue of adverse possession. The possession per se not accompanied by the hostile enjoyment, more particularly ouster having regard to the propinquity of relationship between the parties inter se, however continuous it might be, will not confer any title over the petitioner by prescription. To succeed on this issue, the petitioner must show that his possession is open, notorious and uninterrupted and against the interests of the rightful owner. In the case of co-parcenary property or joint family property, the coparcener/co-owner must show further that his possession was not only adverse to the other co-parceners but in fact they have been ousted from the joint ownership. This is because a co-parcener of the joint family by virtue of his status under law is deemed to have been in possession in every inch of the property along with the other co-parcener/ joint owner who sets up the plea of adverse possession. Anyway, all these aspects have not been considered by the Court below and the Court below refused to give any finding on the plea of adverse possession which is the main contention of the claimant. Anyway, all these aspects have not been considered by the Court below and the Court below refused to give any finding on the plea of adverse possession which is the main contention of the claimant. ( 17 ) AS regards the maintainability of the petition, the claim petition has been filed under the provisions of Order 21, Rules 36 and 58 read with Section 151 of the Code. Rule 35 of Order 21 is the provision, which enables the decree holder in respect of an immovable property to obtain possession of the same in execution of the decree. Rule 58 of Order 21 enables the third party-claimant to file a claim petition for raising of the attachment made in the execution petition. Obviously, in this case, the question of attachment of the property does not arise inasmuch as the decree is in respect of the delivery of immovable property. Therefore, Rule 35 is the relevant provision. The claimant being the third party to the decree and execution proceedings is not remediless. If he claims right, title and interest over the property, which is the subject matter of the decree and execution proceedings, he can resist the execution proceedings validly and he can approach even the executing Court so as to protect his rights and for delivery of possession provided he is dispossessed in the process of execution. Rules 97 and 99 of Order 21 are the relevant rules under the Code under which a third party-claimant can seek protection of his right, title and possession over the property sought to be delivered in execution of the decree obtained in regard thereto. ( 18 ) IN BHANWAR LAL v. SATYANARAIN1 a three Judge Bench of the Apex Court had to confront with a situation where the decree holder when sought delivery of possession of the suit immovable property, the third party obstructor obstructed the delivery and when the decree holder had moved an application under Order 21, Rule 35 for police assistance to remove the obstruction, the executing Court directed the decree holder to make an application under Order 21, Rule 97. In that connection, the Apex Court held that the very application under Order 21, Rule 35 (3) filed by the decree holder for police assistance for removal of obstruction could be treated to be an application filed under Order 21, Rule 97. In that connection, the Apex Court held that the very application under Order 21, Rule 35 (3) filed by the decree holder for police assistance for removal of obstruction could be treated to be an application filed under Order 21, Rule 97. ( 19 ) PLACING reliance upon the said Judgement, again in BRAHMDEO CHAUDHRY v. RISHIKESH PRASAD JAISWAL2 the Apex Court had succinctly laid down the scheme of the Code under the provisions of Order 21, Rules 97 to 103 in para 5 and held thus:"it is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage, which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest de hors the interest of the judgement-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in to picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . On the contrary the statutory scheme envisaged by Order XXI, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI, Rules 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. " ( 20 ) PLACING reliance upon the above two Judgements, the Apex Court in SILVERLINE FORUM (P) LTD. v. RAJIV TRUST3 held thus:"when a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. The words all questions arising between the parties to a proceeding on an application under Rule 97 would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised it. The questions, which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e. g. , if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during the execution proceedings. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during the execution proceedings. In the adjudication process envisaged in Order 21 Rule 97 (2) of the Code, the executing court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. The executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97 (2) of the Code. " ( 21 ) AGAIN the Apex Court in SHREENATH v. RAJESH4 considered the provisions of Order 21, Rule 97 before and after the 1976 Amendment and held thus:"provisions of Rule 97 (1) before and after the 1976 Amendment are the same but after the 1976 Amendment all disputes relating to the property raised under Rules 97 and 99 are to be adjudicated under Rule 101, while under unamended provision under sub-clause (2) of Rule 97, the executing court issued summons to any such person obstructing possession over the decretal property. After investigation under Rule 98 the court puts back a decree-holder in possession where the court found obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the court had to dismiss the decree-holder s application. Thus even prior to 1976, right of any person claiming right on his own or as a tenant, not party to the suit, had to be adjudicated under Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a long litigation. So a tenant or any person claiming a right in the property on the own, if resists delivery of possession to the decree-holder, the dispute and his claim has to be decided after the 1976 Amendment under Rule 97 read with Rule 101 and prior to the amendment under Rule 97 read with Rule 99. So a tenant or any person claiming a right in the property on the own, if resists delivery of possession to the decree-holder, the dispute and his claim has to be decided after the 1976 Amendment under Rule 97 read with Rule 101 and prior to the amendment under Rule 97 read with Rule 99. However, under the old law, in case order was passed against the person resisting possession under Rule 97 read with Rule 99 then by virtue of Rule 103, as it then was, he was to file a suit to establish his right. But now after the amendment one need not file a suit even in such cases as all disputes are to be settled by the executing court itself finally under Rule 101. " ( 22 ) IN ANWARBI v. PRAMOD D. A. JOSHI5 the Apex Court held in para 4 thus:"we, therefore make it clear that the possession of the appellant cannot be disturbed except in accordance with law; and that in view of the obstruction raised by her to the execution of the said decree, the rights of the obstructionist will have to be decided in appropriate proceedings, in accordance with law. Unless and until such proceedings terminate in favour of the decree-holder, the decree-holder cannot take possession and the appellant is entitled to retain possession. " ( 23 ) IN N. S. S. NARAYANA SARMA AND OTHERS v. GOLDSTONE EXPORTS (P) LTD. AND OTHERS6 the Apex Court, while referring to the Judgements in SILVERLINE FORUM (P) LTD. v. RAJIV TRUST, SHREENATH v. RAJESH, ANWARBI v. PRAMOD D. A. JOSHI, (referred to supra), summarised the law in para 19 thus:"19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree. " ( 24 ) WHAT emerges from a conspectus of the above Judgements, is that a third party obstructor can approach the executing Court under Order 21, Rule 97 of the Code and get his right, title and interest adjudicated vis--vis the decree holder who is seeking to dispossess him (third party) in execution of the decree obtained by him (decree holder) and he need not wait till he is dispossessed. This is not to speak of the right of the decree holder to file a petition under Rule 97 for removing the obstruction caused by a third party. Therefore either of them can approach the executing court under Rule 97. A third party obstructor can approach the executing Court under Order 21, Rule 99 in the event of his dispossession in execution of the decree and get his right, title and interest adjudicated qua the decree holder. All questions arising in between the parties to a proceeding under Rule 97 or Rule 99, as the case may be, shall have to be decided and adjudicated by the executing Court. No separate suit would lie and a separate suit is barred. The questions which the executing Court is obliged to determine under Rule 101 of Order 21 would envelop only such questions as would legally arise for determination between the parties and must possess two adjuncts firstly such questions should have legally arisen between the parties, and secondly such questions must be relevant for consideration and determination between the parties, for e. g. , if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. A third party who questions the validity of a transfer made by a decree holder to an assignee cannot claim that the question regarding its validity should be decided during the execution proceedings. The decree holder after such adjudication in his favour can obtain possession in execution of the decree but not otherwise. ( 25 ) IN view of this clear legal position, the contention of the learned counsel appearing for the respondent that the final decree is not valid inasmuch as the suit for partition filed by the plaintiff was dismissed, cannot be adverted to. ( 25 ) IN view of this clear legal position, the contention of the learned counsel appearing for the respondent that the final decree is not valid inasmuch as the suit for partition filed by the plaintiff was dismissed, cannot be adverted to. The question which legally arises in this case, in between the parties, the decree holder and the third party obstructor, is whether the third party obstructor has any right, title and interest in the property sought to be delivered independently in his own way qua the decree holder. To that extent, the decree would not bind him if he is able to establish his right, title and interest. Once his claim is adjudicated in the negative, since all questions arising between the parties to a proceeding are expected to be adjudicated by the executing Court, a separate suit is barred in regard thereto. The decree holder can obtain delivery of the property by removing the obstruction of the third party, although Rule 35 of Order 21 envisages delivery of possession from the Judgement debtor or the persons claiming through him. The decree holder shall not be driven again to initiate fresh proceedings as against the third party obstructor in obtaining possession under due process of law on the premise that the decree will not bind the third party obstructor. Therefore, Rule 35 of Order 21 is of no avail. Once the scheme of the Code is understood as can be seen from Rules 97 to 101, which is a complete Code in itself it is obvious that, the property can be ordered to be delivered to the decree holder after getting the third party claimant evicted in the execution petition itself, and he cannot be driven to file a separate suit for eviction of the third party. In fact, a suit is barred as discussed hereinabove. Therefore, the contention that the respondent cannot be evicted from the premises under Rule 35 of Order 21 cannot be countenanced. ( 26 ) AS discussed by me herein above, the legal question that requires to be adjudicated between the parties inter se in this claim proceeding is whether the petitioner has perfected his title over the property by prescription as claimed by him. Unfortunately, the Court below did not adjudicate the same by articulating for want of necessary documentary evidence, the question of adverse possession could not be gone into. Unfortunately, the Court below did not adjudicate the same by articulating for want of necessary documentary evidence, the question of adverse possession could not be gone into. If there is no sufficient evidence either oral or documentary, the issue ought to have been decided in the negative. Whatever it may be, there is no clear cut finding on that point by the executing Court. Therefore, it is appropriate to remit the matter to that Court again for adjudication of the same basing on the material available on record and after hearing both the parties. ( 27 ) FOR the foregoing reasons, the appeal is allowed and the Judgement and decree dated 21. 07. 1992 passed by the executing Court, namely, the Court of the Subordinate Judge, Medak, in E. A. No. 5 of 1984 in E. P. No. 10 of 1983 in O. S. No. 37 of 1969 are hereby set aside and the matter is remitted to that Court for fresh disposal in the light of the observations made by this Court herein above. Under the circumstances, there shall be no order as to costs.