A decree for possession can be executed despite pending partition proceedings, as tenancy does not merge into ownership unless the entire property is purchased.

Judgment

Mr. Anil Kshetarpal, J.

In this revision petition, the decree holder assails the correctness of the order dated 31.05.2018 passed by the Executing Court while dismissing his execution petition.

2. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed. The total joint land measures 16 kanals and 9 marlas. The petitioner-Ranjit Singh is owner to the extent of half the share. Out of the total joint land measuring 16 kanals and 9 marlas, the land measuring 12 kanals and 7 marlas was leased in favour of the partnership firm M/s Kuldip Rai Marwaha Brik Kiln.

3. Half of the total property has been purchased by the tenant, namely M/s Kuldip Rai Marwah Brick Kiln. Two different litigations were filed. Ranjit Singh filed a suit for partition of the joint property in which a preliminary decree was passed on 10.01.2012 declaring that Ranjit Singh is entitled to the half share of the property, however, he or his predecessor-in-interest did not seek a decree for actual possession because the possession was with the tenant, namely M/s Kuldip Rai Marwaha Brick Kiln. The correctness of the preliminary decree has been upheld in appeal. Thereafter, the proceedings for final decree were initiated in which a final decree has been passed, however, the same is the subject matter of first appeal filed by M/s Kuldip Rai Marwaha Brick Kiln. In the second proceedings, Ranjit Singh filed a suit for possession by way of eviction after terminating the tenancy. The aforesaid suit was decreed by the Court of first instance on 18.09.2014. A decree for possession with respect to the land measuring 12 kanals and 7 marlas was passed. The petitioner-Ranjit Singh was also held entitled to recover the arrears of rent along with interest. The tenant-M/s Kuldip Rai Marwaha Brick Kiln filed an appeal, which was partly accepted. The First Appellate Court held that the decree for recovery of arrears of rent is set aside, however, the decree for possession was maintained. The operative part of the judgment passed by the First Appellate Court on 11.04.2017 is extracted as under:-

“25. No other point has been argued. From the above discussion, I am of the view that suit filed by the plaintiff-respondent no.1 is decreed with the modification that plaintiff-respondent no.1 is entitled for the possession of the leased property and share of the parties will be determined in the final decree, which is to be passed by the Court on the basis of preliminary decree. However, plaintiff-respondent No.1 is not entitled for any recovery of arrears of rent. Accordingly, appeal is partly allowed with above said modification. Decree sheet be prepared accordingly. Counsel fee is assessed at Rs.1100/-. Any other miscellaneous application pending, if any, stands dismissed being not pressed. Appeal file be consigned to the Judicial Record Room, while the record of learned Lower Court be returned forthwith along with copy of judgment.”

4. The aforesaid decree for possession passed against the former tenant was sought to be implemented by filing an execution petition. It would be noted here that M/s Kuldip Rai Marwaha Brick Kiln was party to the partition proceedings.

5. In the execution petition filed for executing the decree for possession against the former tenant, the respondent- M/s Kuldip Rai Marwaha Brick Kiln filed an objection petition claiming that the decree for possession cannot be implemented because in the partition proceedings final decree for partition has been passed. The Court has chosen to dismiss the execution petition vide impugned order.

6. Heard the learned counsel representing the parties at length and with their able assistance, perused the paper-book.

7. The learned senior counsel representing the petitioner, while relying upon the judgment rendered in T. Lakshmipathi and Others v. P. Nithyananda Reddy and Others (2003) 5 SCC 150, contends that merger of tenancy would take place only if the tenant p