IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 06.12.2010 C.R.No.1237 of 2002 Tarsem Singh ...Petitioner Versus Piara Singh ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. K.S.Dadwal, Advocate, for the petitioner. Mr. G.S.Sandhawalia, Advocate, for the respondent. HEMANT GUPTA, J. (Oral) The judgment-debtor is in revision aggrieved against an order passed by the Executing Court on 02.02.2002, whereby the warrants of possession of the property in dispute was ordered to be issued after dismissing the objections filed by the petitioner. The respondent-decree holder filed a suit for specific performance of an agreement to sell dated 18.04.1991 for a house with site and land situated in Village Dhamian Kalan, Tehsil and District Hoshiarpur, for a sale consideration of Rs.50,000/-. The relevant clause from the Agreement to Sell reads as under: “(i) That the seller shall sell free of all encumbrances, charges and liens whatsoever, his dwelling house with site and land situated in Village Dhamian Kalan, Tehsil and District Hoshiarpur and bounded as East : Rasta, West : land of Mehtab Singh, North : land of Munshi Ram and South : Rasta, Khasra C.R.No.1237 of 2002 No.238 and the purchaser shall buy the same at the said price and conditions.” The decree-holder filed suit for specific performance on 27.08.1992, which was decreed on 23.12.1994. In the said suit, the defendant denied the execution of the agreement, but did not dispute the ownership of the suit property or that he is owner of some other property as well. The decree-holder sought the execution of the decree dated 23.12.1994. In pursuance of the order passed by the Executing Court, the sale deed was executed on 14.09.1998. After the execution of the sale deed, the decree-holder sought possession of the suit property. At that stage, the petitioner filed objections to the delivery of possession asserting that the property, subject matter of the suit and the property at the spot is different and, therefore, the decree is un-executable. It is the said objections, which have been dismissed by the Executing Court vide the order impugned in the present revision petition. It may be noticed that the petitioner deposited a sum of Rs.50,000/- in terms of the order passed by this Court on 28.02.2002 as a condition of stay of the impugned judgment. The revision petition was admitted on 02.09.2003 in the absence of the respondent or his counsel, in view of the argument raised by the learned counsel for the petitioner that the decree for specific performance was with regard to Khasra No.238, whereas execution is being sought against the residential house in which judgment debtor is staying. The defendant filed an application for withdrawl of the amount on 16.03.2009, which was allowed on 19.08.2009 without prejudice to the rights of the decree holder. A perusal of clause (i) of the Agreement to Sell shows that the property agreed to be sold by the petitioner was a dwelling house with site 2 C.R.No.1237 of 2002 and land situated in Village Dhamian Kalan, Tehsil & District Hoshiarpur and comprising in Khasra No.238. The suit for specific performance was in respect of said land only. The petitioner in his written statement denied the execution of the agreement. No dispute regarding the identity of the property agreed to be sold or in respect of the boundary was raised. It is not the case of the petitioner that he is owner of any other property in Village Dhamian Kalan. Therefore, the agreement and the suit property related to the property in dispute in respect of which decree for specific performance has been granted and the sale deed executed. The petitioner has pointed out in the grounds that boundaries of the property now in existence do not tally with the boundaries, mentioned in the agreement. It is an assertion made by the petitioner without any proof. Still further, the boundaries keep on changing due to the sale and purchase of the property. Once the identity of the property was not disputed by the petitioner in the suit, the petitioner cannot be permitted to dispute the identity of the property in execution, when the petitioner is not asserting himself to be owner and in possession of any other property. The agreement relates to house situated over Khasra No.238. It is not the case of the petitioner that the property in which he is in possession is not part of Khasra No.238. Consequently, I do not find any merit in the argument raised by the learned counsel for the petitioner that the property in respect of which warrants of possession have been issued is different than the property subject matter of the suit. The argument raised by the learned counsel for the petitioner that an amount of Rs.50,000/- has been withdrawn by the respondent, therefore, the respondent is not entitled to seek possession of the property is 3 C.R.No.1237 of 2002 again misconceived. The agreement was executed in the year 1991 and decreed on 23.12.1994. The sale deed was executed on 14.09.1998 and the decree-holder deposited the total amount of consideration. But the decree- holder has not handed over the possession. The withdrawl of Rs.50,000/- by the defendant was to compensate the respondent for not able to enjoy the possession of the property. Such withdrawl was without prejudice to his rights as well. In view of the said fact, withdrawl of Rs.50,000/- cannot operate as an estoppel against the decree-holder to seek possession of the property in dispute from the petitioner. Consequently, the present revision petition is without any merit. The same is accordingly dismissed. However, the respondent is granted one month time to deposit Rs.50,000/- before the warrants of possession are issued. 06.12.2010 (HEMANT GUPTA) Vimal JUDGE 4