ESA No.16 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ESA No.16 of 2010 (O&M) Date of Decision: 9 th May, 2011 Harbhajan Singh .... Appellant Versus Mohinder Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. R. C. Setia, Senior Advocate with Mr. Surinder Singh, Advocate for the appellant. Mr. J. S. Gill, Advocate for respondent No.1. * * * * L.N. MITTAL, J. (ORAL) CM No.5672-C of 2011 Allowed as prayed for. CM No.5673-C of 2011 Annexure A-1 has not been proved in evidence in the courts below and the same cannot be taken on record in second appeal. However Annexures A-2 to A-12 are taken on record, subject to all just exceptions. The application is disposed of accordingly. Main Appeal This second appeal in execution has been preferred by objector Harbhajan Singh, having lost in both the courts below, not only in the instant round of litigation but he also lost earlier. Decree was passed in favour of respondent No.1(decree holder) against respondent Nos.2 to 4 (judgment debtors) for possession of the suit land. In execution petition, various ESA No.16 of 2010 (O&M) -2- objections were filed. Harbhajan Singh appellant herein also filed objections in the execution petition. Counsel for the appellants states that this is third set of objections by the appellant after his earlier two objection petitions were dismissed, whereas as per counsel for respondent No.1 (decree holder), this is fourth set of objection petitions by the appellant, earlier three objection petitions having been dismissed. Be that as it may, the plea of the appellant in his objections in question is that he has become cosharer in land of Khasra No.52//4/2 of which the suit land is a part and, therefore, actual possession of the suit land cannot be taken from the appellant and only symbolical possession can be taken in execution and actual possession can be taken after partition. Respondent No.1 (decree holder) contested the objections and pleaded that vendors of the objector were themselves not cosharers in Khasra No.52//4/2 and, therefore, appellant-objector has also not become cosharer in the said khasra number and the aforesaid plea of the appellant-objector cannot be accepted. Various other averments were also made. Learned executing court i.e. learned Civil Judge (Junior Division), Phillaur vide impugned order dated 10.09.2009 dismissed the objections filed by the objector-appellant Harbhajan Singh. First appeal preferred against the said order has also been dismissed by learned Additional District Judge, Jalandhar vide impugned order dated 03.04.2010. Feeling aggrieved, objector has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that appellant-objector was not party to the suit in which the decree sought to be executed, was passed ESA No.16 of 2010 (O&M) -3- and, therefore, the said decree cannot be executed against the appellant. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Snehalate Paul V. Nirmala Sundari Dey, 1995 Supp (4) Supreme Court Cases 497. Learned counsel for respondent No.1 however contended that objections of appellant-Harbhajan Singh to this effect have already been dismissed and this contention cannot, therefore, be raised now for the second time. I have carefully considered the rival contentions. Judgment in the case of Snehalate Paul (supra) has no applicability because in that case, eviction suit was dismissed on the ground of non-joinder of tenant who was held to be necessary party. In the instant case, however, objection of the appellant that the decree cannot be executed against him being not party to the decree, has already been dismissed and, therefore, the same objection cannot be raised again. Learned counsel for the appellant next contended that the appellant has become cosharer in the land of Khasra No.52//4/2 and, therefore, actual possession of the suit land cannot be taken from him in execution. This contention also, although apparently attractive, is devoid of merit. On 10.03.2011, adjournment was granted on the prayer of counsel for the appellant to find out as to how appellant's vendors became cosharers in Khasra No.52//4/2. Pursuant thereto, documents Annexures A-2 to A-12 have been placed on record. However, these documents do not depict as to how appellant's vendors Gurnam Singh and Sukhdev Singh (successor of Darshan Singh) became cosharers in Khasra No.52//4/2. These documents are from ESA No.16 of 2010 (O&M) -4- revenue record since 1990-91 onwards. The appellant claims to have purchased 1 Marla land in the aforesaid Khasra vide sale deed dated 22.01.2009. Counsel for respondent No.1 has rightly pointed out that Gurnam Singh and Darshan Singh themselves had purchased some other land from some of the cosharers including respondent No.1 (decree holder) vide sale deed dated 24.05.1963, which is on the record of the executing court and the said land did not include land of disputed Khasra No.52//4/2. It is thus manifest that appellant's vendors were not cosherers in the disputed Khasra number. The appellant by getting sale deed dated 22.01.2009 made another effort to frustrate the execution of the decree. Respondent No.1 (decree holder) is trying to execute the decree since long, but the appellant is repeatedly filing objections. Inspite of opportunity granted on 10.03.2011, when the case was adjourned to 08.04.2011 and again for today, appellant has failed to depict the origin of share of his vendors in disputed Khasra No.52//4/2. On the contrary, in view of sale deed dated 24.05.1963, appellant's vendors did not become cosharers in the aforesaid disputed Khasra number. Consequently, appellant has also not become cosharer in the disputed Khasra number. For the reasons aforesaid, I find that objections filed by the appellant have been rightly dismissed by the courts below. Impugned orders of the courts below, therefore, do not warrant interference in this appeal. The appeal lacks any merit and is accordingly dismissed. (L. N. MITTAL) JUDGE 9th May, 2011 'raj'