IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.A.C.P. No.12 of 2007 (O&M) Date of decision: 14.7.2009 Om Pal & others. -----Appellants Vs. Kuldeep Singh & others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS JUSTICE DAYA CHAUDHARY Present:- Mr. R.S. Mittal, Sr. Advocate with Mr. Atul Gaur, Advocate for the appellants. Mr. C.B. Goel, Advocate for respondent Nos.1 to 3. ----- ORDER: 1. The appellants are aggrieved by the order of learned Single Judge, convicting them for contempt and awarding simple imprisonment for four months apart from fine of Rs.2,000/- each and in default, to undergo further simple imprisonment for one month each. 2. The appellant No.1 filed a suit for possession on the basis of title. It was also stated that the contesting defendants had taken possession vide decree dated 5.2.1994 which was void. The suit was filed on 19.5.1994. On 8.1.2005, the suit was C.A.C.P. No.12 of 2007 partly decreed by holding that the decree dated 5.2.1994 was void and did not affect right of inheritance of the plaintiff in that suit. It was made clear that the decree was for notional possession and physical possession could be taken after partition. On appeal, the decree was modified in relation to extent of share. In second appeal, plea of the defendants was that the decree dated 5.2.1994 was valid as the property was self- acquired property while the Courts below wrongly assumed it to be ancestral property. Vide order dated 29.9.2005, second appeal of the original defendants was admitted and stay granted. The original plaintiffs also filed a second appeal, with a grievance about the extent of their share and that appeal was also admitted and stay granted on 28.10.2005 in R.S.A. No.3835 of 2005. The original defendants also applied for injunction against interference with their possession, on which, vide order dated 26.10.2006, the appellants were restrained from interfering with the physical possession of the contesting respondents, which order was modified on 27.11.2006, to the effect that the parties will maintain status quo. 3. Inspite of above, in execution of decree for possession, in favour of appellants in respect of shares of joint property, the appellants took physical possession on 30.9.2005. 4. The contesting respondents filed a contempt petition, alleging willful disobedience to the order of this Court dated 29.9.2005. 2 C.A.C.P. No.12 of 2007 5. The appellants contested the contempt proceedings by submitting that they were in actual physical possession. 6. Learned Single Judge held that without there being partition, physical possession could not be delivered to the appellants and in any case, delivery of physical possession was in violation of order of this Court dated 29.9.2005. The appellants were, accordingly, held to have committed contempt as defined under Section 2(b) of the Contempt of Courts Act, 1971. The Executing Court was directed to restore the possession to the respondents by taking recourse to such coercive methods as may be necessary. 7. On December 10, 2007, this Court noted the statement on behalf of the appellants that possession of the land was handed over to respondents No.1 to 3 and, thus, the contempt stood purged. On that statement, the impugned judgment was stayed. 8. We have heard learned counsel for the parties and perused the record. 9. It is patent that action of the appellants in taking possession in violation of order of this Court dated 29.9.2005 clearly amounted to contempt. We do not find any ground to interfere with the conviction of the appellants. 10. Learned counsel for the appellants, however, submitted that possession having been delivered, order of this Court having been complied with and the appellants having 3 C.A.C.P. No.12 of 2007 already deposited the fine, sentence of imprisonment may be set aside. 11. We are of the view that having regard to facts and circumstances of the case and development that possession has already been delivered, the sentence of imprisonment is liable to be modified. The appellants are sentenced to undergo imprisonment till rising of the Court. To receive the said sentence, the appellants will remain present in the Court of Chief Judicial Magistrate, Sonepat on any working day within one month from today, failing which they will be got arrested and produced before the said Court to serve out sentence till rising of Court. 12. Learned counsel for the contesting respondents states that one of the respondents has been killed and the appellants may be responsible for the murder. This is not a matter before this Court and we do not express any view on this aspect. 13. The appeal is disposed of accordingly. (ADARSH KUMAR GOEL) JUDGE July 14, 2009 ( DAYA CHAUDHARY ) ashwani JUDGE 4