Civil Revision No5531 of 2007 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5531 of 2007 Date of decision: 5.5.2010 Parmod Bhushan Paul ...Petitioner Versus Sohan Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Ashutosh Paul, GPA of the petitioner in person. Mr. Padam Kumar Jain, Advocate for the respondent. S.D.ANAND, J. In this case, the plea raised by the petitioner is as under:- A decree for possession, by means of specific performance of an agreement, came to be granted by the learned Trial Court, vide judgment and decree dated 13.12.1980. The averment, made on behalf of the petitioner, is that this judgment and decree has attained finality inasmuch as it came to be upheld right up to this Court. It is apparent from the record that initially symbolic possession was delivered to the decree-holder; whereas he insisted upon the delivery of actual possession. It is in appreciation of that insistence on his part that a (fresh) warrant of (actual) possession came to be issued by the then learned Additional Civil Judge (Senior Division), Sultanpur Lodhi, on 16.05.2006. A certified copy of that order has been presented today, which is taken on record. That order otherwise has been reproduced in the course of para 11 of the Civil Revision No5531 of 2007 -2- **** petition. It is the further averment on behalf of the petitioner that symbolic possession came to be delivered to him as there were crops standing on that land. Compensation for the standing crops came to be assessed and the Kanoongo informed the petitioner that actual possession will be delivered only after the crops were harvested by the judgment debtor. In the context of these averments, the contention of the learned counsel for the respondent is as under: - Learned counsel for the respondent states that the judgment and decree dated 13.12.1980 is, in fact, not the final implementable judgment. He further states that this judgment and decree came to be set aside by the learned Appellate Authority. The petitioner herein filed an RSA, which came to be decided ex-parte on 19.01.2005. Respondent No.1 herein filed an application for setting aside the ex-parte judgment, which came to be allowed and another judgment came to be granted by this Court allowing the appeal filed the petitioner herein and the judgment of the learned Trial Court was restored. In support of that averment, learned counsel for the respondent presented a copy of the order dated 10.02.2006 granted by this Court, which is taken on record. It is apparent from the record that the learned Trial Court initially ordered the issuance of a warrant for possession of the land under reference. However, learned Executing Court staged a volte face by holding that actual possession would be given to the decree holder by the revenue authorities when he would initiate the partition Civil Revision No5531 of 2007 -3- **** proceedings in view of the fact that the suit property is a part of agricultural land and is a part of joint khata. The learned Executing Court further observed that it had only to give the symbolic possession. The attorney appearing on behalf of the petitioner argued that the entire approach of the learned Executing Court is wrong because the issuance of warrant for actual possession is only way the impugned decree can be executed. The plea was resisted by learned counsel appearing on behalf of the respondents who argued that line of reasoning adopted by the learned Executing Court is in order inasmuch as the only way the decree holder can obtain actual possession is by way of partition proceedings which he will have to initiate before the revenue authorities. The impugned order deserves to be invalidated. The reasons therefor are as under:- The impugned decree is for specific performance of agreement. In the course of the pleadings, the petitioner herein had asked for possession of specific khasra nos. which have been indicated in the impugned agreement to sell. Defendant-respondent No.1 Bachan Singh had taken up a plea at the trial that land was joint and not partitioned. Issue no.7 had been framed with regard to that controversy. (“Whether Bachan Singh was competent to enter into an agreement ?OPP). The finding under that issue recorded by the learned Trial Court was that defendant no.1 therein/Bachan Singh was fully competent to sell that land. In the course of that finding, the Civil Revision No5531 of 2007 -4- **** learned Executing Court also noticed the factum of Ex. P1 i.e. the judgment dated 8.10.1979 wherein Bachan Singh and his brother Devinder Singh had admitted that they had already partitioned their land. In that view of things, there is no escape from the conclusion that land is not longer joint and it is only specific khasra nos., which had been sold to decree holder. In the light of foregoing discussion, the petition shall stand allowed. The impugned order shall stand invalidated to the extent it denied actual possession to the decree holder. The learned Executing Court shall proceed to issue warrant of possession for delivery of actual possession of the land under reference. May 05, 2010 (S.D.Anand) Pka Judge