DHIAN CHAND Vs. PARKASH KAUR

JUDGEMENT

(1.) THIS litigation relates to land comprised in three khasra numbers, i. e. , five marlas in khasra No. 1021, two marlas in khasra No. 1023 and 11 marlas in khasra No. 1019 situate in village Batala Gharbi. The decree--holder respondents obtained a decree for possession of the entire land in dispute against the judgment--debtor--respondents. The suit in which the decree was passed had been based on the allegation that the sale of different pieces of land in favour of Gurdial Singh and Ajaib Singh judgment--debtor--respondents by Harbans Lal respondent in this purported capacity of an attorney of the then owner of the land were unauthorised as the power of attorney in favour of Harbans Lal had been cancelled before the sales were effected. Harbans Lal attorney appeared in the suit and admitted the allegations of the plaintiff--decree--holders. Gurdial Singh vendee did not appear in spite of service and the suit proceeded against him ex parte. Ajaib Singh vendee put in appearance but did not contest the suit. These were the circumstances in which the decree now under execution was passed. When the decree was sought to be executed, it was reported that the petitioners before me were in possession. These petitioners filed objections against the execution of the decree on or about July 25, 1976. Objections against the execution of the decree are reproduced below:

(2.) FROM the above--quoted objection--pleadings of the parties, the executing Court framed the following issues:-

(3.) NOT satisfied with the order of the executing Court, the objectors have come up in revision to this Court. Mr. Dharam Vir Sehgal, the learned counsel for the objector--petitioners, has no objection to issue No. 2 as originally framed and issue NO. 3 as now framed and issue No. 3 as now framed remaining intact subject to what he has argued on the matter relating to issue No. 1. He has also not pressed the prayer in the original application for framing the third suggested issue relating to the claim that fresh warrant of possession could not be issued in view of the report on the previous warrant. Counsel has, however, contended that framing of issues is not a pure matter of law but depends on the facts, circumstances and pleadings of given case. His main submission is that, in the light of the undisputed or admitted facts of the present case, the burden of proving the executability of the decree against the objectors should be placed on the decree--holders and not on the objectors who were admittedly not parties to the present litigation. In order to appreciate the detailed submissions of the learned counsel and to notice and deal with them, it appears to be proper to briefly survey the relevant part of the previous history of the litigation relating to the land in dispute or different parcels thereof.