Ram Kumar and Another vs Bhale Ram and Others

A.P. Chowdhri, J.—The material facts which are necessary for the disposal of this revision petition are that the petitioners obtained a decree for joint possession against the respondents from the court of learned Additional District Judge, Jind, on 10-6-1988, Regular Second Appeal filed by the respondents against the said judgment and decree was dismissed on 17-3-1989. The petitioners took out execution of the decree on 19-7 1988 and, inter alia, prayed for issuance of warrant for actual possession. On 2-12-1988 such warrants were issued by the executing Court of Subordinate Judge 1st Class, Narwana. In compliance with the warrant of possession, the revenue authorities delivered actual possession of the land is question to the petitioners on 26-12-1988. As some crop was standing at the time of delivery of possession, a certain amount of compensation was assessed which the decree holder was required to deposit in the executing Court. The judgment debtor i.e. the respondents made an application on 5-1-1989 that as the decree itself was for joint possession, actual possession could not be delivered and that possession could not be delivered and that possession be restored to them. After notice to the opposite side, the executing Court reviewed the order dated 2-12-1988 by the in pugned order. It was held that she decree was for joint possession and therefore, actual possession could not be delivered. It was directed that the possession be redelivered to judgment debtors. The application for deposit of compensation amount for standing crop was dismissed. This revision is directed against that order.

During the pendency of the present revision the parties were directed to maintain status quo with regard to possession by order of this Court dated 31-1-1989. It was served on the officers concerned on 1-2-1989, In spite of the said order, however, the revenue authorities proceeded to deliver possession to respondents in pursucance of the order of the executing Court on 2-2-1989. A contempt of Court petition was moved on which the Naib Tehsildar who was found responsible for committing disobedience of the order of this Court was convicted and awarded punishment.

In the present revision petition the main question for consideration is whether in a decree for the joint possession actual possession can be delivered. Learned counsel far the petitioners relies on Jayagopal Mundra Vs. Gulab Chand Agarwalla and Others, in which the learned Judges accepted the proposition settled as a result of a series of decisions that where ''symbolical possession'' is delivered in a decree for ''actual possession'' the symbolical possession will operate as actual possession. In the facts of that case, the decree was for actual possession. The party concerned disputed that instead of delivering actual possession only symbolical possession had been delivered It was held that against the judgment debtor where the decree was for actual possession, the delivery of symbolical possession amounted to delivery of actual possession. The authority is of no avail to the petitioners because the proposition arising in the present case is converse of the proposition in the aforesaid Full decision. Here the decree was for ''joint possession'' and it is to be seen whether the decree for joint possession can ever be deemed as one for actual possession. No authority for this proposition could be cited by the learned counsel.

The other authority referred to by the learned counsel is Jangir Singh and Anr. v. The State of Punjab and Ors. 1977 P.L.J. 79. The radio decidendi of the decision is that for restitution of possession following reversal of decree of the civil Court be the higher Court an application u/s 144 of the CPC was not the only remedy and did not preclude any other forum/proceeding provided by law under which possession could be claimed. Obviously, the above decision is of no assistance to the petitioners, The distinction between the actual possession'' and joint possession'' is well recognised and is of vital significance. Execution of a decree for ''actual possession'' is dealt with under Order 21, Rule 35(1) while a decree for joint possession is dealt with under Order 21, Rule 35(2) and Rule 36 of the Code of Civil Proceedure. There is no authority for the proposition that where the decree is for joint possession, the delivery of actual possession will have the effect of converting the decree as one for actual possession. The revision is, therefore, dismissed.