The main legal point established in the judgment is that even symbolic delivery of possession to the decree holder against the judgment-debtor would amount to actual delivery of possession, as supported by legal provisions and precedents.

Kuldip Chand Sood, J.—This original side appeal arises out of the orders of learned Single Judge of this Court in OMP No. 268 of 1999 (C.S. No. 48 of 1999) dated June 28, 2000.

2. It appears, plaintiff Loharu Ram, filed a suit for declaration to the effect that he is owner in possession of the land subject matter of dispute, situate at Phati Nathan, Kothi Naggar in Tehsil and District Kullu as per Jamabandi for the year 1990-91 and further that the decree passed in appeal by this Court in RFA No. 355 of 1992 (Keemtu v. Rama and others) on 25.2.1997, is illegal, void, having been obtained by misrepresentation and fraud by Smt. Keemtu and, therefore, not binding on the plaintiff. In the alternative, a prayer is made for the recovery of rupees 3,65,000 on account of the sale price paid by the plaintiff to defendant No. 2 Smt. Kamlesh Kumari as bonafide purchaser of 10 bighas of land in dispute.

3. Alongwith this suit, an application under Order 39 Rules 1 and 2, CPC seeking to restrain the defendants from interfering with the possession of the plaintiff on the suit land or from plucking Plum and apple crop from the land, was filed.

4. The case of the plaintiff is that inspite of the decree and its execution, the plaintiff continues to be in possession of the land and is, therefore, entitled to the fruit crop.

5. The application is resisted by the defendant-respondents. It is the case of the defendant-respondents that pursuant to the decree passed by this Court in "RFA No. 355 of 1992" (Keemtu v. Rama Dogra and others), the respondent Keemtu was delivered possession of this land in execution of the decree and, therefore, the suit of the plaintiff Loharu Ram had become infructuous and the present application is redundant. According to Smt. Keemtu, she was delivered physical possession of the suit land on 16.1.1999 in Execution Petition No. 19 of 1998 which was filed in this Court by her.

6. Learned Single Judge in his orders observed that respondent Keemtu, has placed on record copy of the warrant of possession directing the delivery of possession of the land subject matter of the execution including the land in dispute. Perusal of the report of the Bailiff on the warrants prima facie shows that the possession of the land, in fact, was delivered to respondent Keemtu on 16.1.1999 after dispossessing Rama Dogra and other defendants, including the present plaintiff. The possession was delivered by "digging up a part of the land with the help of Kudal". In these circumstances, learned Judge concluded that prima facie it cannot be said that plaintiff was in possession of the suit land.

7. It was contended before the learned Single Judge that possession delivered was only symbolic in nature by raising the voice and no actual physical possession was delivered on the spot. However, the learned Judge on the basis of the report made by the Bailiff on the warrants of possession concluded, "the defendant prima facie appears to have been put in physical possession of the suit land."

8. In the absence of prima facie case the application was dismissed. Aggrieved, plaintiff is in appeal.

9. After having heard Mr. K.D. Sood, learned Counsel for the appellant, Mr. S.S. Mittal, learned Counsel for the respondent No. 1 and Mr. Neeraj Gupta, learned Counsel for respondent No. 2 and after perusing the record, we are of the view that the plaintiff-appellant has neither a prima facie case nor the balance of convenience is in his favour to entitle him to temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure.

10. Learned Counsel for the appellant vehemently contends that though a decree of this Court in RFA No. 355 of 1992 was executed under Order 21 Rule 35 of the Code of Civil Procedure in favour of the defendant-respondent Keemtu but actual physical possession was not delivered to her. According to the learned Counsel, mere symbolic possession given to the decree holder Smt. Keemtu respondent, in execution of the warrant of pos