Ashok Kumar and Others vs Kamaljit Singh and Others

G.C. Garg, J.—This revision is directed against the order dated November 26,1992 passed by the executing court.

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.

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 CPC 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 Others Vs. Raghunandan and Others, . 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.

After hearing learned counsel for the parties and perusing the record, I am of the opinion that the contentions have no merit. Objection petitions against the execution of the decree in question have already been dismissed on two earlier occasions by orders dated September 23, 1989 and September 18, 1991. By order dated September 23, 1989, objections were over-ruled and warrant of possession was ordered to issue. The present objection petition was filed thereafter. Milkhi Ram''s case (Supra) and the provisions of Sub-rule (2) of Rule 35 of Order 21 of the Code do not help the petitioner-objectors. Sub-rule (2) is applicable only where the decree is for joint possession of immovable property and in that situation only symbolic possession is delivered leaving the parties to seek partition in an appropriate forum or in proceedings against the final decree. Reference to the judgment and decree passed in this case clearly goes to show that the High Court restored the judgment and decree of the trial court. The plaintiffs had not only sought declaration that they were the owners of the property but had also prayed for the recovery of possession of the site, A B C G. The objectors or their predecessors were parties to the suit. The court had recorded a firm finding that the plaintiffs were owners of the property and thus had decreed the suit of the plaintiffs for possession of the suit property against defendants 1 and 3 to 14 with costs. Not only this, the private defendants were held not in legal possession of the property and, therefore, the plaintiffs were held entitled to claim an amount of Rs. 75/- per month for three years upto the filing of the suit and thereafter. Thus, it cannot be said that the decree passed in this case, the execution of which is in question, was a decree for joint possession. This apart, a decree for joint possession is passed in cases where defendants are also the owners of the property. In the present case, the private defendant-objectors arc not the owners of the property. They claim their possession either through the Punjab Government or Municipal Committee. A co-owner is entitled to possession from a third party and such defendants cannot be permitted to raise an objection that a co-sharer is only entitled to joint possession and not actual physical possession. Milkhi Ram''s case (Supra) is a case of joint decree holders and therefore, has no application to the facts of the present case. In view of the decree passed in this case, the decree holders are clearly entitled to possession of the property as decreed.

The other contention of the learned counsel that the executing court could not order delivery of possession during the pendency of the objection petition filed by the State of Punjab has again no merit. In the suit filed by the plaintiff-decree holders, it was not held, nor was it claimed that the State of Punjab had a share in the property in question. Even if it be held in appropriate proceedings that the State of Punjab has a share in the property in question, the matter will be decided between the parties in accordance with law and the objectors herein cannot take any advantage thereof. As already observed, the objectors or their predecessors were parties to the suit. Decree has been passed against them after holding that they are in illegal possession and the plaintiff-decree holders are entitled to possession. Thus, they are bound by the decree and the executing court has not committed any illegality or material irregularity in ordering delivery of possession to the decree holders by dismissing the objection petition filed by the petitioners.

For the observations made above, this revision has no merit and the same is consequently dismissed leaving the parties to bear their own costs.