KEWAL SINGH Vs. WADHAWA SINGH

JUDGEMENT

(1.) This revision petition arises out of an order dated 29.7.2008 passed by Additional Civil Judge (Sr. Divn.) Sultanpur Lodhi, Kapurthala whereby Objections filed under Section 47 and Order 21 Rule 35 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') by the judgment debtor has been allowed to the extent that decree holders/petitioners would not get physical possession of the land in dispute and would rather get symbolic possession as the judgment debtor has purchased the share of one of the decree holders Bakhshish Singh and has become the co-owner.

(2.) This case has a chequered history. The suit was filed by the plaintiffs/petitioners for possession of land measuring 11 kanals 15 marlas bearing Khewat Khatoni No. 1328/2833, Khasra No. 42//19(9-11), 20/1/2-4 situated in the revenue estate of village Tibba, Tehsil Sultanpur Lodhi and for recovery of Rs. 4856/- as mesne profits from Kharif 1984 to Rabi 1987 which was decreed by the Sub Judge 1st Class, Sultanpur Lodhi vide his judgment and decree dated 7.6.1990 to the effect that "It is hereby ordered that suit of the plaintiffs for possession of the entire suit land along with recovery of mesne profits from Rabi 1985 to Rabi 1987 succeeds and, the same is hereby ordered to be decreed with costs of the suit".

(3.) In the first appeal, it was alleged by the defendant that he is in possession of land in dispute as co-sharer as 3 Kanals 11 marlas of land in dispute which was ex changed by him from the co-sharers and remaining land is in his possession on the basis of agreement to sell dated 8.10.1986, 9.10.1987 and 2.11.1989. In this way, he has claimed to be in permissive possession over the land in dispute, however, while dismissing his appeal vide judgment and decree dated 9.5.1995, the learned lower appellate Court recorded a finding that "In this respect the learned Counsel has particularly referred to Jamabandi Ex. P-l for the year 1983-84. As per entries of Jamabandi possession of the appellant of Khasra numbers 42/19 and 20/1 was recorded under Bela Singh and others. It is more than clear from this entry that the appellant was not recorded as the co-sharer of any kahsra number of the land in dispute. Rather his possession was recorded as tenant". The learned first appellate Court, however, modified the decree of the trial Court for possession of the suit land along with recovery of mesne profits amounting to Rs. 3236/- from Rabi 1985 to Rabi 1987. The judgment and decree of the first Appellate court dated 9.5.1995 became final which was not challenged any further by Wadhwa Singh. The petitioners then filed an execution application in which objections under Section 47 and Order 21 Rule 35 read with Section 151 of CPC were filed by Wadhwa Singh which were allowed by Additional Civil Judge (Sr. Divn.) Sultanpur Lodhi vide order dated 11.4.2005. The petitioners assailed the order by filing CR No. 5708 of 2005 which was allowed by this Court on 12.5.2008 observing that "After hearing the learned Counsel for the parties and keeping in view the rival contentions noticed above, however, in the absence of any material on record to specifically hold that the respondent was held to be a tenant, I am of the considered view that the matter requires reconsideration by the Executing Court. Consequently, the impugned order dated 11.4.2005 is set aside and the Executing Court is directed to reconsider the objections submitted by the respondent-judgment debtor in the light of the contentions noticed above as also the judgment passed by the Hon'ble Supreme Court relied upon by the petitioner-decree holder. The Executing Court shall pass an appropriate order in accordance with law within a period of two months from the date of receipt of certified copy of this order". In the meantime, the execution petition was dismissed in default and the application for restoration was also dismissed against which the petitioners had to file CR No. 5529 of 2006 which was allowed with the following observations: