ASHOK KUMAR Vs. KAMALJIT SINGH

JUDGEMENT

(1.) THIS revision is directed against the order dated November 26,1992 passed by the executing court.

(2.) CHET Singh and others filed a suit for declaration that they are owners of the property shown by letters ABCDEFG in red and yellow colours in the site plan attached with the plaint, forming part of Khasra No. 2577 situated within the Municipal Limits of Municipal Committee, Kharar, and for the recovery of possession of the Site ABCG shown in yellow colour in the said plan, and also for the recovery of money on account of mesne profits. The Municipal Committee, State of Punjab and the objectors or their predecessors were impleaded as defendants in the said suit. The suit was decreed by the trial Court by judgment and decree dated February 3, 1975 against defendants 1 and 3 to 14. It was, however, dismissed against defendant 2. Appeal against the judgment and decree of the trial court filed by the Municipal Committee was allowed by the Learned Additional District Judge by judgment and decree dated February 25, 1978. Appeal taken by the plaintiffs against the judgment and decree of the first appellate court was allowed by this Court on May 10,1989, whereby the judgment and decree of the lower appellate court was set aside and that of the trial court restored. The plaintiffs thereafter took out execution and prayed for issuance of warrant of possession in respect of the properties as detailed in the site plan and qua which the suit had been decreed for possession. It may be mentioned at this stage, that the land in dispute is a part of khasra No. 568, measuring 4 kanals 15 Marlas. The Khasra No. of this property prior to consolidation was 2577. Objections were filed by some persons and the same were disposed of by the executing court by orders dated September 23, 1989 and September 18, 1991. Objection petition which is the subject matter of this revision was filed by private defendants or their successors. It was broadly contended by them that they were in possession of the site and have raised construction thereon after the same had been allotted to them by the State of Punjab/municipal Committee, Kharar, who in turn got this property from the Central Government. It was in this situation contended that the decree could not be executed against the Central Government and consequently against the objectors. It was also submitted that the decree was vague as measurement of the land and not been given. The objection petition was opposed by filing reply. It was stated that the objectors were in unauthorised possession and that the suit against them had already been decreed by this Court. The share of the Central Government in the land in dispute was denied. It was contended that any transfer made during the pendency of the litigation by the State of Punjab in favour of the petitioners or the Municipal Committee, did not affect the right of the decree holders to get possession. Learned executing court on a consideration of the matter dismissed the objection petition by order dated November 26, 1992 as already noticed.

(3.) LEARNED counsel for the petitioners submitted that the plaintiff-decree holders were only co-sharers in the land in dispute, the other co-sharers being the Punjab State and others. In the premises, learned counsel for the petitioners seeking support from the provisions of Sub-rule (2) of Rule 35 of Order 21 of the Code of Civil Procedure submitted that the decree holders being co-sharers were entitled to symbolic possession only and the learned executing court erred in ordering delivery of physical possession. In support of his, submission, reliance was placed on Milkhi Ram and Ors. v. Raghunandan and Ors. , A. I. R. 1982 H. P. 87. Learned counsel also submitted that objection petition filed by the State of Punjab against the execution of the decree is also pending and in the absence of decision thereon, objections filed by the petitioners could not be dismissed.