DAULAT RAM Vs. SURINDER SINGH

JUDGEMENT

(1.) The petitioners are judgment debtors whereas the respondent is a decree holder and they will be referred to as such in this judgment. The judgment debtors are aggrieved by the order dated 19.1.2000, whereby the Executing Court has issued warrant of possession for the execution of the decree with a direction to demolish the construction from the disputed land and to hand over the vacant possession thereof to the decree holder. The judgment debtors had filed an appeal against the impugned order before the District Judge, Una, which was dismissed as not maintainable vide order dated 17.3.2001. Thereafter the present revision petition was filed alongwith an application under Section 5 of the Limitation Act for condonation of delay which was allowed vide order dated 3.5.2001.

(2.) The brief facts of the case are that the decree under execution was passed in Civil Suit No. 79 of 1997, filed by the decree holder for permanent prohibitory injunction restraining the judgment -debtors from changing the nature and character either by way of raising any sort of construction or from ousting the plaintiff from joint possession of the land measuring 2 -14 kanals, bearing khewat No. 315, khatauni No. 470, khasra No. 2167 as entered in jamabandi for the year 1989 -90, situate in village Nangal Khurd, Hadbast No. 471, Sub Tehsil Haroli, District Una, till the suit land is partitioned. The judgment -debtors resisted the suit inter -alia on the grounds that although the land in suit is not legally partitioned by metes and bounds, yet the parties are in separate possession by mutual family arrangement. It was also alleged that the judgment -debtors have major share in the suit land and they are not in possession in excess of their share whereas the decree -holder has only negligible share therein. According to the judgment -debtors, they had already filled in the foundations and raised construction upto 6 -7 feet in height to which the decree holder never took exceptions and as such, he was estopped to file the suit by his own acts and conduct.

(3.) On the pleadings of the parties, the following issues were framed: -