Civil Revision No. 6496 of 2007 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6496 of 2007 Date of decision: 3.3.2009 Rahgunath ...Petitioner Versus Shakuntla Devi ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Sanjay Verma, Advocate for the petitioner. Mr. Anil Khetarpal, Advocate for the respondent. S.D.ANAND, J. It is beyond the pale of controversy that a suit filed by the petitioner/decree holder for the possession, by way of specific performance of agreement dated 22.2.1984 against vendor Ram Sarup, was decreed vide judgment and decree dated 31.7.1997. In execution of that decree, a warrant of possession was issued but the execution thereof was resisted by the respondent-objector Shakuntla Devi (concededly a co- sharer in the joint land) on the plea that she is in possession of the land bearing Khasra No. 66/6 (qua which the warrant of possession had been issued) and that the only way the warrant could be executed was to deliver the constructive possession of that land to petitioner-decree holder. Learned Trial Judge dismissed the objection by observing as under:- The respondent-objector Shakuntla Devi had herself sold a part of her holding and had, in the course of that sale deed, conceded that she was in possession of land being sold by her on the basis of mutual partition. The respondent-objector Shakuntla Devi had also filed a suit for Civil Revision No. 6496 of 2007 -2- **** permanent injunction in respect of the land bearing Khasra No. 66/6. A stay application filed by her was dismissed vide order dated 17.5.2007. Apart therefrom, on the warrant of possession issued by the Executing Court (in the present case) the Girdawar had made a report that it was one Ramesh Kumar who was in possession of the land bearing Khasra No.66/6. A compensation in respect of the wheat sown by Ramesh Kumar aforementioned was assessed and it was deposited into the Court. On this premise, the learned Trial Court rejected the objections filed by the respondent-objector Shakuntla Devi. In appeal, however, the learned Ist Appellate Court held that since the respondent-objector Shakuntla Devi-decree holder cannot file a separate suit to obtain the invalidation of the impugned decree dated 31.7.1997 as she was not a party thereto, the only remedy available to her was to file objections before the Executing Court. It was further held that the petitioner-decree holder is only entitled to become a co-sharer in joint possession and he cannot validly insist upon the exclusive possession of the land purchased by him. The petitioner-decree holder is in revision against the order of the learned Ist Appellate Court. It is apparent from a perusal of the record that the respondent- objector Shakuntla Devi did sell a part of holding held by her vide sale deed dated 13.6.2007. There is a precise averment in the course thereof that she had exclusive possession of the land being sold on the basis of a private partition ('Gharelu Baant'). It cannot be said that the private partition was partial in character vis-a-vis the objector only. Infact, there is no averment to that effect. It follows therefrom that a private partition had been effected as between the joint co-sharers and each one of them had been given exclusive possession of whatever land had fallen to the share Civil Revision No. 6496 of 2007 -3- **** of each one of them. Apart therefrom, it is also apparent from the record that the respondent-objector Shakuntla Devi did file a suit for the restraint of petitioner- decree holder from interfering in her possession on the land bearing Khasra No. 66/6. The ad-interim stay plea in that case was rejected. There is not even an averment that the order aforementioned has not attained finality. The Girdawar, who was entrusted with the duty of executing the impugned warrant of possession (in the present case), did record a report that the land bearing Khasra No. 66/6 was in possession of certain persons (other than the petitioner-decree holder and the respondent- objector Shakuntla Devi). There were crops standing on that land. The compensation for the standing crops was assessed. It stands deposited in the Court. Even though the person found in possession of a part of that land is shown to be a son of respondent-objector Shakuntla Devi, it does not enable the latter to set up a claim for exclusive possessory title qua that land. There is no averment that her son was in possession of that land on her behalf. She was, in any case, not found to be in possession of the land for which the warrant of possession had been issued by the Executing Court. In the light of the discussion aforementioned, it is apparent that the resistance offered by the respondent-objector Shakuntla Devi to the execution of the impugned warrant of possession was misconceived. The petition shall stand allowed. The order dated 19.10.2007 passed by the learned Ist Appellate Court is set aside. The order passed by the learned Trial Judge is restored. March 03, 2009 (S.D.Anand) Pka Judge