C.R. No.4151 of 2008 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4151 of 2008(O & M) Date of Decision: 16.02.2010 Dallan .……Petitioner Versus Satish Chand alias Satish Kumar and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R. S. Sihota, Sr. Advocate with Mr. A. K. Sharma, Advocate for the petitioner. Mr. Ashish Handa, Advocate for Mr. R. M. Singh, Advocate for respondents. L. N. MITTAL, J (ORAL) CM No.2367-CII of 2010 The application is allowed and Annexures P-5 and P-6 are taken on record, subject to all just exceptions. Main Case. Balbir Singh anad Khayali Singh filed suit against Ved Parkash (since deceased and represented by respondents). The suit was decreed vide judgment and decree dated 12.02.1994 (Annexure P-5). First appeal preferred by the respondents herein was dismissed vide judgment and decree dated 11.11.1997 (Annexure P- 6). Operative part of the decree passed by the trial Court is reproduced hereinunder:- “ It is ordered that the suit of the plaintiffs succeeds and the same is hereby decreed. Defendants are hereby permanently restrained from raising any construction in the suit land and from changing the nature of the suit land C.R. No.4151 of 2008 (O & M) -2- without the consent of the co-sharers of the suit land mentioned in para No.1 of the plaint. Parties are left to bear their own costs.” Dallan-petitioner, who was not party to the suit, filed execution petition alleging that he is also co-sharer in the suit land belonging to ‘Shamlat Patti Gourva, Palwal’ and, therefore he has locus standi to file execution petition because the decree was passed in favour of the co-sharers of the Patti. It was contended that in violation of the decree, the respondents/judgment debtors have constructed several shops over the suit land and the same be got demolished. Respondents filed reply and inter alia pleaded that they are bona fide purchasers of the suit land and the sale was made with the permission of decree-holder. It was also alleged that the petitioner is not entitled to execute the decree as execution petition filed by decree-holder was withdrawn in view of compromise. Learned Executing Court vide impugned judgment dated 28.03.2008 (Annexure P-3) dismissed the execution petition observing that the same is not maintainable because the petitioner was not party to the decree. Feeling aggrieved, the petitioner has filed the instant revision petition under Article 227 of the Constitution of India challenging judgment dated 28.03.2008 (Annexure P-3) passed by the executing Court. I have heard learned counsel for the parties and perused the case file. The first question is whether the petitioner is shareholder in Shamlat Patti Gourva or not because he had allegedly sold some C.R. No.4151 of 2008 (O & M) -3- land out of his share vide sale deed dated 19.12.1989. Bijender Singh, Patwari, who was examined by the respondents as OW-4, has stated on 30.07.2005 i.e long after the sale deed dated 19.12.1989 that the petitioner is still left with share of 3 marlas land in Shamlat Patti Gourva. There is document Ex.R-4 also depicting that the petitioner has 3 marlas share in Gourva Patti. It is thus established that the petitioner is co-sharer in Shamlat Patti Gourva and, therefore, is also co-sharer in the suit land. Learned counsel for the petitioner contended that admittedly the respondents/judgment debtors have constructed shops in the suit land, although vide decree dated 12.02.1994 as affirmed in appeal, the respondents were injuncted from raising any construction in the suit land and from changing nature thereof without consent of the co-sharers. Admittedly, consent of the petitioner-co- sharer was not taken for raising construction. Thus the construction has been raised by the respondents in violation of the decree. Learned counsel for the respondents contended that the decree is regarding 4 kanals 1 marla land only whereas the total land of the Patti is 375 kanals and 19 marlas and there are 1816 co- sharers in the Patti. However, every co-sharer has right in every inch of the joint land. In fact the Executing Court cannot go behind the decree. The decree stipulates that the defendants were restrained from raising construction in the suit land and from changing nature thereof without consent of the co-sharers. It would imply that consent of all the co-sharers had to be taken for raising of construction in the suit land or for changing nature thereof. However, the respondents did not do so. C.R. No.4151 of 2008 (O & M) -4- In view of the aforesaid discussion, I find that the petitioner being co-sharer in the Patti and the decree being in favour of the co-sharers, the petitioner has locus standi to file the execution petition and the execution petition filed by him is maintainable. The impugned order passed by the executing Court is, therefore illegal, erroneous and unsustainable in law. The revision petition is accordingly allowed and impugned judgment dated 28.03.2008 (Annexure P-3) passed by the Executing Court is set aside. The Executing Court is directed to proceed with the execution petition in accordance with law. Parties are directed to appear before the Executing Court on 15.03.2010. ( L. N. MITTAL ) JUDGE 16.02.2010 A. Kaundal