The central legal point established in the judgment is the requirement to ascertain the actual possession of the decreed property before passing an order for execution, as per Order 21 Rule 35 C.P.C.

1. Heard and considered.

2. Record of the file also perused.

3. Admit.

4. Mr. G. R. Tantray, Advocate waives post admission notice on behalf of the respondents. With the consent of learned counsel for the parties, the matter is taken up for final disposal at this stage itself.

5. Subject-matter of the decree dated 28-06-2002, which is under execution before the Court of learned Sub-Registrar, Srinagar is a piece of land `measuring 13 marlas and 136 sft. comprised in Khasra Nos.1608, 1609, 1610, 1611,1612, and 1613 situated at Khonakhan, Dalgate, Srinagar. The decree has been passed by the Court of learned 4th Additional Munsiff, Srinagar and provides that the said "land is the propriety land of the plaintiffs and are entitled to its possession" and further the defendants are directed to hand over the possession of the said land to the plaintiffs.

6. Record reveals that the matter earlier also came before this Court in Civil Revision No.100/2008, directed against the order dated 17.06.2008, whereby the learned Executing Court had held that the decree in question was not executable and, therefore, dismissed the execution petition. In the said revision, this Court by order dated 01.12.2009, while disposing of the revision petition, had taken note of two conflicting reports as regard the spot position and observed as under:-

"In view of the conflicting reports, the Executing Court should have directed the Collector to ascertain as to who is in actual possession of the decreed property on spot. Though earlier matter had been referred to the Collector, that order was set aside because the order contained a direction to the Collector to ascertain whether suit property belonged to the petitioner or not. That was an uncalled for direction because the petitioner was declared as owner pursuant to the decree. Same could not be permitted to be interfered with by Collector. It is qualified that the Collector when asked to do so has to confine his report to a limited question as to who is in actual possession of suit property on spot. His report will enable the Executing Court to hold as to whether decree is executable or in-executable and thereon shall pass appropriate orders as shall be warranted in accordance with Order 21 Rule 35 Code of Civil Procedure and other enabling provisions."

7. Pursuant to the aforesaid order, the learned Executing Court by orders passed on 18.3.2011, 18.2.2012 and 2.7.2012 conveyed to the Collector (Dy. Commissioner, Srinagar) to look into the matter and furnish his report in light of the observation made by this Court. By the order dated 2.7.2012 (supra), the Executing Court conveyed to the Collector (Dy. Commissioner, Srinagar) clearly that he should visit the spot and report only to the extent that who is in actual possession of the property. In light of the orders passed by the Executing Court pursuant to the order dated 1.12.2009 passed by this Court the short assignment given to the Collector was to visit the spot and ascertain as to who is in actual possession of the decreed land specified above and make a report to the Executing Court. After obtaining such report, the learned Executing Court was required to hold as to whether the decree was executable or not and thereafter pass appropriate orders in accordance with Order 21 Rule 35 C.P.C.

8. As against this, the Addl. Dy. Commissioner, Srinagar vide his No.DCS/ARA/108/2012 dated 20.9.2012 has only forwarded to the Executing Court the report in this regard made by the Tehsildar, North, Srinagar vide No.1373/TNS/OQ dated 8.9.2012 to the Dy. Commissioner, Srinagar. The Tehsildar in his report has reported that "from the spot position, it becomes evident that the suit land measuring 13 marlas and 136 Sqfts bearing Survey Nos. 1608, 1609, 1610, 1611, 1612 and 1613 situated in revenue estate Barinambal, Srinagar locally known as Khona Khan, Dalgate is under and appurtenant to structures under the possession of Estates Department". However, in his communication to th

Click Here to Read the rest of this document