DALIP GOPALDAS DUWANI Vs. ABDUL GANI & ORS.

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. With consent of the parties the matter is taken for final hearing immediately.

(2.) Admittedly, respondent no.1 Abdul Ghani is related to respondent Nos. 2 to 7. Respondent no.1 filed Regular Civil Suit No.197 of 1994 seeking partition and separate possession of certain property against respondents no.2 to 7, who were defendant nos.1 to 6 in that suit. The present petitioner is the defendant no.7. He was in 3 occupation of one single room shop situated on plot No.190 at Jamnalal Bajaj Ward, Bhandara, as a tenant. One more tenant was made defendant no.8 in that suit. The suit was decreed in favour of plaintiff/respondent no.1 and he was held to be entitled to 2/9th share in the property. The court directed appointment of Commissioner for partition and separate possession of the property. That decree has become final, as it was not challenged by any of the parties. The plaintiff/respondent no.1 has filed Regular Darkhast No.63 of 2006 before the second joint Civil Judge (Sr.Dn.), Bhandara for execution of that decree and it appears that as per the Commissioner's report the shop in occupation of the present petitioner as a tenant is proposed to be allotted to the share of respondent no.1. Respondent no.1 sought warrant for actual possession of the property including the shop in possession of the present petitioner. It appears that when possession warrant was sought to be executed, the objection was taken by the present petitioner on the ground that he being in occupation as a tenant, he could not be ousted from the possession nor the physical possession of the property could be given to the decree holder. The 4 objection was reported by the bailiff to the court. After hearing the parties, the learned executing court rejected the objections raised by the present petitioner. Therefore, he has preferred the present petition.

(3.) The learned counsel for the petitioner contended that as per Order 21 Rule 36 of the Civil Procedure Code, when the immoveable property is in possession of the tenant, decree can be executed only by giving symbolic possession and not physical possession. He contends that he has no objection to the execution of decree if it is executed by following the procedure under Order 21 Rule 36. According to him, he cannot be dispossessed physically because no decree of eviction and possession was passed against the petitioner.