SURINDER KUMAR Vs. HARBHAJAN SINGH

JUDGEMENT

(1.) This execution second appeal is directed against the order of the learned I Additional District Judge, Ludhiana, dated April 27, 1970, whereby the order of the executing Court was modified and it was held that symbolic possession could only be delivered to the decree-holders.

(2.) The brief facts leading to this appeal are that Rameshwar Dass, respondent No. 5 filed a suit for possession of 59/89th share of the suit land measuring 1 Bigha 5 Biswas and 5 Biswas by way of partition. A compromise decree was passed by the trial Court in the said suit and Local Commissioner was appointed to submit his report suggesting the mode of partition. The Local Commissioner divided the suit property in three portions marked 'A', 'B', 'C' and suggested the allotment of the portion to each of the parties in his report marked Exhibit DH 3. After hearing the objections raised by the respective parties against the report of the Local Commissioner the trial Court passed a final decree in terms of the said report on August 19, 1960, which was affirmed by this Court in appeal on December 21, 1964. Rameshwar Dass thereafter took out execution of the said decree to which objections were filed by the remaining parties under Section 47 of the Code of Civil Procedure. The executablility of the decree was challenged on two grounds, namely, that the decree was only a declaratory decree as the delivery of possession has not been ordered therein and that the objectors had built their houses on the land which have been allotted to the said Rameshwar Dass. The said houses were in existence even at the time of the filing of the suit and as the demolition of those houses has not been ordered, the decree was incapable of execution. The objection petition was contested by the decree-holders and on the pleadings of the parties, following issues were framed :-

(3.) After hearing the learned counsel for the parties, the trial Court decided issue No. 1 in favour of the decree-holders and issue No. 2 against the objectors. Though the objection petition was dismissed in view of the above findings, but it was ordered by the trial Court that the record of the case may be submitted to the learned District Judge, who may in turn submit it to the High Court for amending the decree. Aggrieved by the said order, the objectors went in appeal in the appellate Court where the finding of the executing Court on issue No. 1 was not challenged and was consequently affirmed.