A decree for joint possession can only be executed in the mode prescribed by Order XXI, Rule 35(2) of the Code of Civil Procedure, which does not authorize the Executing Court to order the demolition of a building erected by the judgment-debtor during the pendency of the appeal.

, J.

1. In this execution second appeal by a defendant-judgment-debtor, it would be necessary to recite the facts that preceded the passing of the decree for joint possession of a vacant piece of land which is being executed by the respondent, decree-holders.

2. In the plaint filed by the decree-holder-respondents in 1956, the subject matter of the suit was described as a vacant piece of land, measuring 146 and odd square yards in area and situated opposite the Harijan Mohalla in the abadi of village Gias Pura. All the seventeen plaintiffs and Mallu appellant belong to that community. The suit was for the possession of the vacant site and it was averred in the plaint that the defendant-appellant, who was in possession, was wrongfully claiming ownership under some registered sale deeds dated 16/ 17-8-1954. The persons from whom he claimed to have purchased the site had also been impleaded as defendants. The averments in the plaint were that the plaintiff-respondents had become owners of the vacant site by adverse possession lasting over a period of more than 12 years and that their possession could not be illegally disturbed by the appellant and that his vendors had no valid title which they could pass on to him.

3. The trial Judge, found, after a critical examination of the oral evidence examined by the parties, that the appellant had failed to prove any ownership over the site in dispute which was a part of the shamilat deh and that the plaintiffs possession over this land had been disturbed by the appellant about a year or two before the institution of the suit. The plaintiffs had also failed to prove any hostile or adverse possession for the requisite number of years but it was found that before the appellant had gone into possession of the vacant site, the plaintiffs had been using it for tethering of cattle and storage of manure and that they had erected some mangers (khurlis) over the land. By virtue of their possessory title, the plaintiffs were granted a decree for joint possession against the defendant-appellant. It was found that the plaintiffs could be granted this lesser relief even though they had claimed the right to go into exclusive possession of the site.

4. Mallu had filed an appeal which was allowed by the judgment dated 9th October, 1958, of Shri Des Raj Dhamija, Senior sub-Judge, Ludhiana. The suit filed by the respondents was dismissed with costs throughout. The reason given was that the plaintiffs could not be allowed to set up a case which was inconsistent with their pleadings and that the evidence examined by the plaintiffs, in so far as it went beyond the pleadings, was to be ignored. Reliance was placed on the Supreme Court ruling in M/s. Trojan and Co. V/s. Nagappa Chettiar, AIR 1953 SC 235, and on a Single Bench decision of this Court in Mansha Ram V/s. Tej Bhan, (1957) 59 Punj LR 372 = (AIR 1958 Punj 5). It was observed, inter alia, by the learned Senior Sub-Judge that there was a world of difference between a decree for exclusive possession and a decree for joint possession and that if the plaintiffs had based their case on possessory title alone, it would have been open to the defendant to show that he had also been using the site in a like manner as the plaintiffs.

5. The regular second appeal filed by the plaintiff-respondents was allowed by this Court on 12th May, 1967, and the judgment and decree of the trial Court were restored. The reason given was that the plaintiffs were found to have been in possession of the vacant site for about 17 years and had erected their khurlis and pegs for tethering cattle and that this transitory possession, even if it was of no consequence against the true owner, entitled the plaintiffs to stick on to the land and that the trial Court was not wrong in granting a decree for joint possession which was a lessor relief than the one claimed in the plaint.

6. It may, however, appear that after his appeal had been allowed on 9th October, 1958, by Shri Dhamij