IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5708 of 2005 Date of Decision:- 12.05.2008 Kewal Singh and others ....Petitioner(s) through Mr.Rakesh Kumar, Advocate vs. Wadhawa Singh ....Respondent(s) through Mr.Naresh Prabhakar, Advocate *** CORAM:-HON'BLE MR.JUSTICE SURYA KANT. *** 1) Whether Reporters of the local papers may be allowed to see the judgment? 2) To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest? *** SURYA KANT, J. (ORAL) This revision petition is directed against the order dated 11.4.2005 passed by the learned Additional Civil Judge (Sr.Division)-cum Executing Court, Sultanpur Lodhi whereby the objections under Order 21 Rule 35 CPC submitted by the respondent-judgment debtor have been accepted to the extent that instead of delivery of physical possession of the subject land to the petitioner-decree-holders, he has been held entitled to symbolic possession only. Notice of motion was issued and in response thereto, learned counsel for the parties have been heard and the judgment dated 9.5.1995 passed by the First Appellate Court along with the impugned order has been perused. It is not in dispute that the petitioners along with Bakshish Singh etc. were held to be joint owners of the subject land and a decree for C.R. No.5708 of 2005 -2- possession was passed in their favour and against the respondent-judgment debtor. However, from the judgment of the first appellate Court, it appears that the respondent-judgment debtor took a plea that he was a tenant over the suit land. It is, however, not discernible from the same as to whether his plea was accepted and was he held a tenant or not. The respondent-judgment thereafter is stated to have purchased the share of one of the decree-holders, namely, Bakshish Singh, by way of a registered sale deed dated 22.2.2000 and relying upon the same, he claims that he has attained the status of a co-sharer. He also relies upon an agreement to sell dated 9..8.2002 allegedly executed by another decree- holder. Accepting his objections, the learned Executing Court vide its impugned order has held him to be a co-sharer and as a consequence thereto, the petitioners have been held entitled for the delivery of symbolic possession only. Relying upon a judgment of the Apex Court in the case of T.Lakshmipathi and others vs. P.Nithyananda Reddy and others, 2003 (3) RCR (Civil), learned counsel for the petitioner contends that in the light of the findings returned by the first appellate Court whereby the respondent has been held to be a tenant over the suit land, there can be no merger of the tenancy rights with ownership, therefore, the respondent continues to be a tenant qua the petitioners and as such physical possession of the subject land to the extent of the share of the petitioners was liable to be delivered to them. On the other hand, learned counsel for the respondent contends that since the respondent has not been held to be a tenant, the principles C.R. No.5708 of 2005 -3- enunciated by the Hon'ble Supreme Court in T.Lakshmipathi and others case (supra) are not applicable to the facts of the present case. He further contends that had the respondent been held to be a tenant, in that event, the Civil Court would have got no jurisdiction to pass a decree against him as in that event the dispute would fall within the ambit of the Punjab Tenancy and Agricultural Lands Act, 1955. After hearing the learned counsel for the parties and keeping in view the rival contentions noticed above, however, in the absence of any material on record to specifically hold that the respondent was held to be a tenant, I am of the considered view that the matter requires reconsideration by the Executing Court. Consequently, the impugned order dated 11.4.2005 is set aside and the Executing court is directed to reconsider the objections submitted by the respondent-judgment debtor in the light of the contentions noticed above as also the judgment passed by the Hon'ble Supreme Court relied upon by the petitioner-decree-holders. The Executing Court shall pass an appropriate order in accordance with law within a period of two months from the date of receipt of certified copy of this order. The observations made here-in-above are tentative in nature and shall have no bearing on merits of the case. The parties shall be at liberty to raise all the contentions before the learned Executing Court. May 12, 2008 ( SURYA KANT ) poonam JUDGE