cr no.5997 of 2009.doc - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5997 of 2009 (O&M) DATE OF DECISION: 16.12.2009 **** Mohinder Singh and another . . . . Petitioners VS. Amar Singh and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of 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? **** Present: Mr. Anil Chawla, Advocate for the petitioners Mr. V.K. Sandhir, Advocate for the respondent No.1 **** SURYA KANT J.(ORAL) (1). This revision petition is directed against the order dated 20.09.2007 passed by the Executing Court-cum-Civil Judge (Senior Division), Amritsar, whereby, the final decree has been passed and the parties have been directed to be put into its possession as per their respective shares. It may be noticed that earlier the petitioners had preferred an appeal against the above-stated order but the same has been dismissed as not maintainable by the learned Additional District Judge, Amritsar, vide order dated 06.05.2009. Thereafter, the revision petition has been preferred. cr no.5997 of 2009.doc - 2 - (2). The case in hand is a glaring example as to how a cantankerous and incorrigible litigant, taking undue advantage of his physical possession over the share in excess of his entitlement, can prolong the lis and frustrate the fruits of the decree in his favour. (3). The first petitioner and respondent No.1/Decree-holder are brothers whereas, petitioner No.2 is the son of petitioner No.1. Respondent No.2 to 4 are stated to be the sisters of petitioner No.1 and respondent No.1 (4). The house No.3098/8 (old) and No.166 (new) situated at Gali Dhab Tilli Bhana, Katra Karam Singh, Amritsar is admittedly a joint property of the first Petitioner and the respondents. There is indeed no dispute that petitioner No.1 and his son, namely, petitioner No.2 are in possession of more than 2/3rd part thereof and only a small part is in possession of first Respondent. (5). The first Respondent filed a suit for partition and possession and a preliminary decree was passed in his favour way back on 08.02.1994. The said decree attained finality. Since then, the first Respondent/Decree-holder is struggling hard to get possession of the share to which he is entitled to. The first Petitioner and his obstinate son, namely, petitioner No.2, on the other hand, are obstructing the resultant effects by adopting one or the other foul means. Noticeably, two reports submitted by two different Local Commissioners, along with their respective site plans cr no.5997 of 2009.doc - 3 - for bifurcation/partition of the house amongst the parties, have already been rejected. (6). The respondent/Decree-holder has submitted yet another site plan, a Photostat whereof has been appended as Annexure P3. (7). After taking notice of the respective shares to which the parties are entitled to in the joint property and the fact that the shares of three sisters of petitioner No.2, namely, respondent No.2 to 4, who are married and settled somewhere else and are said to have decided to give their respective shares to the petitioner No.1 only, the site plan got prepared by the respondent/Decree-holder is apparently just, fair and equitable. It broadly follows the well known parameters of partition and provides no undue advantage to any party and proportionately divides the front portion of the house abutting the main street. (8). The proposal made by the Decree-holder, as usual, is again not acceptable to the petitioners, putting the parties back to square. (9). The Executing Court, Amritsar has considered the afore- stated site plan in conjunction with the respective shares of the parties and while approving the same, has passed the final decree giving rise to this revision petition. (10). Besides, raising a the hyper-technical objection that no final decree could be passed by the Executing Court unless cr no.5997 of 2009.doc - 4 - the Stamp Papers were purchased and the final decree drawn on such Stamp Papers, inequitable distribution of the shares is also allegedly by the petitioner-Judgement Debtor. (11). Owing to the inter se relationship between the parties, they were to directed to remain present in Court to resolve the dispute amicably. During the course of hearing, the first Respondent/Decree-holder was persuaded and he agreed to accept little more partition on the rear side of the house adjoining to the portion already in his possession and give up a part of the portion, falling almost in the middle of the house which as per the final decree passed by the Executing Court, Amritsar, otherwise comes to his share. The proposal agreed to by the respondent/Decree-holder divide the property in straight plots. Such a division would have possibly increased the value and utility of the property for both the parties. The petitioner-Judgement Debtors, however, are not agreeable to the said proposal also for the reason that such a division would increase the share of the respondent/Decree-holder to an extent of 4 to 5 sq.yards for which he is willing and ready to compensate the petitioner/Judgement debtors in monetary terms also. (12). Counsel for the parties, therefore, have been heard on merits. The question that arises for consideration is as to whether the Executing Court can be said to have committed any error of jurisdiction while passing the impugned order? cr no.5997 of 2009.doc - 5 - (13). In my considered opinion, the final decree passed by the learned Executing Court is absolutely fair, just, equitable and warrants no interference by this Court in exercise of its revisional jurisdiction. Suffice it to say that the preliminary decree passed way back in the year 1994 cannot be termed as FRUMEN DECREE to remain on papers only. It has to be given effect and the consequences following therefrom must be faced by the parties. The revision petition is accordingly dismissed with cost of Rs.5000/- and with the following directions:- i. The Executing Court, Amritsar will take necessary steps and direct the parties to purchase the Stamp Papers and complete the ministerial exercise of drawing the final decree on the Stamp Papers within two weeks, if so required, in law; ii. The Executing Court, Amritsar shall provide necessary police help, if so required, to ensure that the respondent/Decree-holder is put into possession of his share strictly as per the final decree without any further delay before 31.01.2010; iii. The Superintendent of Police, Amristar is directed to provide the necessary police assistance, if so required, by the Executing Court, Amritsar; iv. The compliance report shall be submitted to this Court. cr no.5997 of 2009.doc - 6 - (14). Dasti. (SURYA KANT) JUDGE 16.12.2009 vishal shonkar