**1** IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil First Appeal No.63 of 1992. Khillo son of Shri Medu by caste Jat ..... Defendant-appellant VERSUS Smt. Bhaggo Devi (since dead) through her LRs.Kesaria & Anr. ..... Plaintiff-respondents Date of Judgment :::: 19th January, 2010. Hon'ble Mr. Justice Dalip Singh Mr. B.L. Mandhana, Counsel for the Defendant-appellant Mr. S.R. Surana, Counsel for the Plaintiff-respondents *** By the Court : Heard learned counsel for the parties. This first appeal has been preferred by the defendant-appellant against the judgment and decree dated 28.02.1992 passed in Civil Suit No.3 of 1991; titled Smt. Bhaggo Devi Vs. Khilloo, by the learned Additional District Judge No.1 Bharatpur, whereby a decree for possession in favour of the plaintiff has been passed. Facts, in brief, are that the property, in dispute belonged to one Jalli, which is a house situated in the Mohalla Gopalgarh, Bharatpur. Jalli had two daughters viz., Smt. Ganga **2** and Smt. Bhaggo, the plaintiff-respondent. After the death of Jalli, both the above daughters became the sole owners of the property of their father. Smt. Ganga one of the daughter sold the entire house and property vide registered sale-deed dated 13.04.1967 to Khillo appellant without the knowledge of the plaintiff - Smt. Bhaggo, the other daughter and co-heir of Jalli. When the plaintiff came to know about the aforesaid sale, she filed a suit immediately on 28.04.1967 before the Munsif, Bharatpur being suit No.76 of 1967 seeking a prayer for declaration that she be declared the co-owner of the half share in the property in dispute being the heir of deceased Jalli, along with Smt. Ganga, she further prayed that the sale executed by Ganga on 13.04.1967 without the knowledge and consent of the plaintiff - Smt. Bhaggo to the extent of her one-half share be declared null and void. It was further prayed that since she is the co-owner of the one-half share of the property, which is undivided, she is entitled to a decree of preemption for the aforesaid house against the purchaser - Khillo. The aforesaid suit No.76/67 was decreed by the learned trial Court vide judgment and decree dated 31.03.1973 in its entirety. The appeal preferred against the aforesaid judgment and decree also came to be dismissed by the learned Appellate Court vide judgment dated 26.04.1978. The decree-holder-plaintiff put the decree to **3** execution wherein an objection to the executability of the decree was raised by the judgment-debtor-appellant - Khillo and Smt. Ganga the other daughter of Jalli In the meanwhile, symbolic possession in execution of the decree was delivered by the Nazir to the decree-holder by beat of drum and publicity on 11.11.1980, after dismissal of the objections filed by the appellant vide order dated 06.10.1980. Against the aforesaid order dated 06.10.1980 rejecting the objections to the execution of the decree, the appellant, herein preferred S.B. Civil Revision Petition bearing No.443 of 1980 before this Court. The aforesaid revision petition came to be decided by this Court vide order dated 21.11.1985. The said order reads as follows : “A decree for pre-emption was passed by the Munsif, Bharatpur on 31.03.1973 for half share in the property in dispute. The operative part of the decree is as under :- “Plaintiff suit is decreed only to the extent that the plaintiff is entitled to a decree of pre-emption of one half share of the defendant in the property in dispute because she is a co-sharer one half of the property. Prayers for injunction is hereby rejected. In view of the nature of the dispute and the relations of the plaintiff and defendant No.1 as real sisters, I ordered that parties will bear their own costs of the suit. Plaintiff shall deposit a sum of Rs.1000/- in court within one month and then a **4** noticewould be served upon the defendant No.1 to execute a sale-deed in favour of the plaintiff failing which a sale deed would be executed by the court in respect of one half share of the property. An execution application was filed by the decree-holder in which the Executing Court passed an order on 06.10.1980 to the effect that on account of the decree for pre-emption the decree- holder should be put in possession over 1/2 of the property in dispute. A further direction was given by the Executing Court in its order dated 06.10.1980 that the decree-holder was entitled to title i.e. right of ownership over 1/2 of the property in dispute in accordance with the decree and that she is acknowledged to be the owner of ½ of the said property. The order passed by the Executing Court is ambiguous in nature. In pursuance of the decree for pre-emption passed on 31.03.1973, the decree- holder is entitled to execution of sale-deed in respect of ½ of the property in dispute by Smt. Ganga and if she fails to execute the sale-deed the decree holder can get the sale-deed executed in respect of 1/2 of the property in dispute by the court. The decree-holder is also entitled to a declaration in respect of title relating to ½ of the disputed property and also to symbolic possession over ½ share of the property in dispute. However, the decree-holder cannot be put in physical possession over specific portion of the disputed property to the extent of ½ share in execution of the decree but the decree-holder can file a fresh suit for division of the property by metes and bounds and for physical possession over ½ share of the **5** disputed property on the basis of the decree passed by the Munsif, Bharatpur on March 31, 1973. The order passed by the Executing Court on 06.10.1980 is clarified to the extent mentioned above and the revision petition is partly allowed as indicated above. The parties shall bear their own costs. After the aforesaid order was passed in the revision petition clarifying the earlier order dated 06.10.1980, the plaintiff-respondent filed a fresh suit. Since, this Court had directed that “ the decree-holder can file a fresh suit for division of the property by metes and bounds for physical possession over half share of the disputed property on the basis of the decree passed by the Munsif, Bharatpur on March 31 st 1973.” In the present suit, filed after the aforesaid order of this Court, in the revision petition, on 21.11.1985, the plaintiff- respondent made the following prayers : ''अ. वाǑदनी को ूितवादȣ से मौके पर ूितवादȣ को बेदखल कर ǒववाǑदत जायदाद का कÞजा Ǒदलाया जावे। ब. खचा[ मुकदमा वाǑदनी को ूितवादȣ से Ǒदलाया जावे। स. अÛय Ûयायोिचत अनुतोष जो वहक वाǑदनी ǒवǾƨ ूितवादȣ अदालत ौीमान देना उिचत समझे ् , वह भी वादȣ को ूदान Ǒकया जावे।'' The defendant-appellant contested the suit upon which the following issues were framed : ''1. आया वाǑदनी ने मुकदमा दȣवानी संÉया 76/67 के **6** फैसले के बाद 1000/- Ǿ० जरे वय अÛदर िमयाद जमा अदालत कर Ǒदये? 2.आया वाǑदनी को Ǒदनांक 11.11.1980 को आधे मकान िसàवोिलक पजेशन Ǒकया जा सका है। 3. आया वाǑदनी पूरे मकान पर ूितवादȣ से कÞजा ूाƯ करने कȧ हकदार है? 4. आया व वजह उळ मद नं.1 व 8 जवाबदावा दावा वाǑदनी मेनटेनेǒवल नहȣं है। 5. आया वजह उळ मद नं. 10 जवाबदावा ूितवादȣ वाǑदनी से बेटर एÖड परदर पटȹÈयूलस[ पाने का हकदार है? 6. आया दावा अÛदर िमयाद नहȣं है? 7. आया तायून दावा कम Ǒकया गया है और कोट[फȧस कम दȣ गई है? 8. आया ववजह उळ मद नं.14 जवाबदावा ूितवादȣ का मकान मुतदाǒवया पर कÞजा मुखालफाना चला आ रहा है? 9. दादरसी।" On Issue No.1, the learned trial Court has come to the conclusion that in pursuance of the decree passed by the learned trial Court in civil suit bearing No.76 of 1967 the plaintiff-respondent has deposited the amount of Rs.1000/- being the sale consideration for the sale-deed executed by Smt. Ganga in favour of the appellant – Khillo and that the aforesaid amount was deposited within time on 23.04.1973 i.e. within one month of the passing of the decree. Accordingly, Issue No.1 was decided in favour of the plaintiff-respondents. So far as Issue No.2 is concerned over which much stress has been led by the learned counsel for the defendant- **7** appellant, the learned trial Court after taking into consideration the evidence of the parties came to the conclusion, more particularly after having considered the record of the Court in the form of Exhibit-3 the proceedings of the Nazir and Exhibit-4 the order-sheets of the Court that the symbolic possession of the property, in dispute in execution of the decree has been handed-over to the decree-holder plaintiff, herein. Learned counsel for the defendant-appellant contended that the present suit is not maintainable in terms of Section 47, C.P.C. as all matters with regard to the execution, discharge and satisfaction of the decree passed in civil suit bearing No.76 of 1967 were required to be adjudicated by the learned Executing Court and not by means of a civil suit. I have considered the aforesaid submissions and also taken into consideration the judgment of the learned trial Court on Issue Nos. 3 and 4. In the instant case, the property belongs to the father of the plaintiff, who died leaving behind him two daughters; the plaintiff and Smt.Ganga, the vendor, who sold the house to the defendant-appellant vide registered sale-deed dated 13.04.1967. Admittedly, the plaintiff-respondent - Smt. Bhaggo, had an undivided share in the property left behind by the father and Smt. Ganga to the appellant and that she was co-owner of the property and since no partition has taken place, she was as **8** much the owner of half share in each and every part and parcel of the property as the vendor sister- Smt.Ganga. In that view of the matter, her suit for preemption was rightly decreed by the learned trial Court under the decree dated 31.03.1973, which was upheld in appeal. The present suit was filed only because this Court in the revision petition, (decided vide order dated 21.11.1985 quoted above) ordered that the decree-holder could not be put in physical possession in execution of the decree and the decree-holder must file a fresh suit for division of the property by metes and bounds for physical possession for half share of the disputed property. In similar circumstances, this Court in the case of Triveni Bai Vs. Swaroop Chand, reported in A.I.R. 1974 (Raj.) 232, where this Court has taken the view that where the symbolic possession has been handed-over the plaintiff can bring the suit for taking actual physical possession. In Para 18 of the report, this Court considered “the question that calls for determination is whether a suit for actual physical possession is barred under Section 47, C.P.C. where symbolical possession is taken by the decree-holder auction purchaser in a case where he was entitled to actual possession under Order 21 Rule 95, C.P.C.” Deciding the aforesaid question, the learned Single Judge of this Court held “I see no reason why the execution proceedings should not be deemed to have come to an end on **9** the delivery of symbolical possession to the decree-holder actual purchaser, who is entitled to actual possession. In my opinion under Order 21 Rule 35 and Order 21 Rule 96, Code of Civil Procedure both stand on the same footing and in both the cases the only remedy for obtaining actual possession is by way of a separate suit”. In the instant case, after the symbolic possession was handed-over to the decree-holder-plaintiff on 11.11.1980 in execution of the decree the learned Executing Court vide its order-sheet dated 15.07.1986 recorded that the symbolic possession having been delivered on 11.11.1980 as such the decree-holder does not wish to pursue the execution proceedings and the same was ordered to be consigned to record. Apart from the above, this Court in the revision petition, filed by the defendant-respondent, had on 21.11.1985 clearly directed that the remedy for the plaintiff-respondent is by way of filing a separate suit for delivery of possession after seeking partition. In the instant case, I am in agreement with the contention of the learned counsel for the respondent that the question of partition by metes and bounds did not arise as plaintiff had been held under the decree dated 31.03.1973 to be the co-owner of one-half of the property and the sale **10** executed by Smt. Ganga in favour of the appellant on 13.04.1967 to the extent of that one-half was inoperative and had been set aside. So far as the remaining one-half portion of the property is concerned, there was already a decree of preemption in favour of the plaintiff-respondent and the respondent had in execution proceedings deposited the sale consideration of Rs.1000/- before the learned Executing Court and the right of the defendant-appellant thereafter in the property came to an end and he was bound to deliver the possession of the remaining one-half of the property to the decree-holder. The submission of the learned counsel that without the plaintiff having got actual physical possession the present suit was not maintainable cannot be accepted as the decree for preemption passed against the defendant-appellant in 1973 in civil suit bearing No.76 of 1967 has already attained finality. Moreover the present suit has only been filed because of the directions issued by this Court on the revision petition filed by the appellant-defendant, along with the other defendant, the LRs. of Smt. Ganga, which order was not challenged by the appellants. The effect of the decree of the earlier suit was (i) that the plaintiff-respondent was declared to be the co-owner of half share of the disputed property, along with the vendor **11** Smt.Ganga, (ii) that she was entitled to get her one-half share in the property on the basis of the aforesaid decree, and (iii) having been declared the co-owner of the decree for preemption was rightly passed in her favour, which became finally and on the basis of the deposit of the sale consideration amount within the time under the decree the plaintiff respondent was entitled to execution of the sale deed in her favour and actual physical possession of the property as a whole and there was, in fact, non-necessity for the division of the property by partitioning it as a condition precedent for execution of the decree for preemption. In any event the appellant-defendant has no rights left in the property and the plaintiff-respondent is the full an absolute owner of the entire property and entitled possession of the whole. In that view of the matter, the plaintiff did not require the partition of the property in any manner as there was no other co-share in the property and the plaintiff was the sole and absolute owner of the entire property, in dispute. In the facts and circumstances, there is no merit in this first appeal and it is an unfortunate that a suit, which started as early as 1967 and decree having been passed in the year 1973 the plaintiff-respondent has been deprived of the fruits of the aforesaid decree by the defendant successfully till date, in-spite of the defendant-appellant having no subsisting right to remain in possession of the property. **12** Consequently, this appeal is dismissed with costs. (Dalip Singh), J. Ashok/