E. S. A. No. 38 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : E. S. A. No. 38 of 2010 (O&M) Date of Decision : January 07, 2011 Sawinder Singh .... Appellant Vs. Shikander Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. K. Jain, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 14988-C-II of 2010 : Application is allowed and annexed copies of decree and compromise Ex.D-1 are taken on record, subject to all just exceptions. Main Appeal : Pre-emption suit filed by Sunder Singh and Suban Bai against Savinder Singh – appellant herein was decreed by the trial court vide decree dated 09.03.1998. Decree holders filed execution petition for possession of 08 kanals 12 marlas land out of suit land by execution of the pre-emption decree. It appears that on the death of decree holder Suban Bai, decree E. S. A. No. 38 of 2010 (O&M) 2 holder Sunder Singh claimed himself to be her sole legal heir. Sunder Singh has also since died and is now represented by respondent Shikander Singh as his legal representative. During execution proceedings, decree holder Sunder Singh moved application for issuing warrant of possession of 08 kanals 12 marlas land alleging that affidavit dated 12.08.2002 was obtained from him regarding alleged compromise under police pressure. Judgment debtor, however, pleaded that compromise was arrived at between the parties on intervention of Panchayat and according to the compromise, decree holder Sunder Singh agreed to give back the aforesaid 08 kanals 12 marlas land out of the land covered by pre-emption decree, to the judgment-debtor for ₹ 88,000/-, whereas some other 25 kanals 12 marlas land was to be sold to Sunder Singh decree holder for ₹ 2,56,000/-. The judgment debtor accordingly pleaded that decree holder Sunder Singh is not entitled to take possession of 08 kanals 12 marlas land, pursuant to aforesaid compromise dated 10.08.2002, regarding which the decree holder also affirmed affidavit dated 12.08.2002. The Executing Court, vide order dated 14.12.2005, held that the alleged compromise was arrived at under pressure and duress and did not bind the decree holder. Accordingly, warrant of possession of 08 kanals 12 marlas land was ordered to be issued. Appeal against the said order E. S. A. No. 38 of 2010 (O&M) 3 preferred by the judgment debtor was allowed by learned Additional District Judge vide judgment dated 26.10.2006 holding that compromise dated 10.08.2002 Ex.D-1 could not be said to be result of pressure or duress. The matter was remanded to the Executing Court to proceed further in the matter in accordance with law, taking into consideration compromise Ex.D-1. Thereafter, the Executing Court, vide order dated 28.08.2008, dismissed the execution petition. However, the said order of the Executing Court has been successfully challenged by the decree holder in appeal, which has been allowed by learned Additional District Judge vide impugned judgment dated 21.09.2010 holding that decree holder is entitled to get possession of the suit land by execution of the pre-emption decree. Feeling aggrieved, judgment debtor has filed the instant Execution Second Appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that decree holder Sunder Singh, vide compromise Ex.D-1, agreed to sell 08 kanals 12 marlas land in question to Mahinder Singh, whereas Mahinder Singh, as attorney of owners of other 25 kanals 12 marlas land, agreed to sell the same to decree holder Sunder Singh and therefore, the decree holder is not entitled to take possession of 08 kanals 12 marlas land in question from the judgment debtor-appellant. Reference in this regard was also made E. S. A. No. 38 of 2010 (O&M) 4 to affidavit dated 12.08.2002 (Ex.D-2) sworn by decree holder Sunder Singh. I have carefully considered the aforesaid contention, but the same cannot be accepted. Compromise Ex.D-1, which is sole basis of the claim of the judgment debtor-appellant, was not honoured by the judgment debtor-appellant or his representative Mahinder Singh. Sale deed of 25 kanals 12 marlas land was not executed in favour of Sunder Singh in terms of the aforesaid compromise and as pointed out by the counsel for the appellant himself, Sunder Singh had to file suit for specific performance of the agreement to sell, which had been separately entered into regarding 25 kanals 12 marlas land. Pursuant to compromise Ex.D-1, even sale deed of 08 kanals 12 marlas land in question was also not got executed by Mahinder Singh in his favour or by judgment debtor-appellant nor any proceedings by way of any suit or in any other manner were initiated either by Mahinder Singh or by judgment debtor-appellant to enforce the compromise regarding sale of 08 kanals 12 marlas land in question. Consequently, in execution of pre-emption decree, decree-holder respondent is entitled to take actual possession of the said 08 kanals 12 marlas land in question. The matter may also be examined from another angle. As per compromise Ex.D-1, sale deed of 08 kanals 12 marlas land in question was to be executed by decree holder Sunder Singh in favour of one Mahinder E. S. A. No. 38 of 2010 (O&M) 5 Singh. The said sale deed has not yet been executed. Consequently, decree holder continues to be owner of the said land and is, therefore, entitled to take possession thereof in execution of the pre-emption decree. Even if sale deed of the said land is to be executed in favour of Mahinder Singh, pursuant to compromise, even then judgment debtor-appellant Savinder Singh has no right to retain possession of the said land. For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine. January 07, 2011 ( L. N. MITTAL ) monika JUDGE