Judgment?

2(i) A civil suit was instituted by S/Shri Rania and Chuni Lal, both sons of Shri Litru on 29.12.1995. The defendants in the suit were S/Shri Dulo and Chhunku, both sons of Shri Mangtu. The plaintiffs asserted themselves to be owners alongwith other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 81, Khasra No. 78, measuring 0-00-55 HM, situated in village Tutwan, Sub Tehsil Fatehpur, District Kangra, on the basis of jamabandi for the year 1989-90. The allegations in the plaint were that the defendants were neither the owners nor the tenants over the suit land. Yet they had forcibly taken over the possession of the suit land in May 1989 in an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. Learned trial Court on 22.8.1998, decreed the suit of the plaintiffs exparte against the defendants for vacant possession of suit land. The operative part of the judgment reads as under:

“…….Since the plaintiffs alongwith other cosharers are the owners of the suit land and the defendants have no right, title or interest over the suit land, and thus, the suit of the plaintiffs is hereby decreed against the defendants for vacant possession of the land comprised in Khata No. 39 min, Khatauni No. 81, Khasra No. 78, measuring 0-00-55 HM, situated in village Tutwan,Sub Tehsil Fatehpur, Distt. Kangra,

H.P. as per jamabandi for the year 1989-90.”

2(ii) On 12.8.2006, the legal heirs of original plaintiff No. 1 and Shri Chuni Lal-original plaintiff No. 2 (petitioners herein) filed an execution petition under Order 21 Rule 11 of Code of Civil Procedure for executing the aforesaid decree dated 22.8.1998.

The execution was preferred against the legal heirs of original defendants. The prayer in the execution petition was for putting the plaintiffs/decree holders (present petitioners) into actual possession of the suit land after demarcation of boundaries.

2(iii) On 12.1.2007 objections on behalf of judgment debtors were preferred pleading therein that the decree had become inexecutable for the reasons:-

a) The original judgment debtor No. 1 Dulo had purchased 1/16th share in the suit land on 27.5.1999.

b) Judgment debtor Bhola Ram son of Shri Dulo had also purchased a separate share in the suit land.

c) After purchase of shares in the suit land, the judgment debtors had become joint owners in possession with the decree holders. The share of the judgment debtors/joint owners is not specified on a particular portion of land in question. Therefore, till the time the land is partitioned, every inch of it has to be construed as joint between the parties-joint owners.

d) The decree holders (present petitioners) in such circumstances are not entitled for actual possession of the suit land.

The reply to the objections had been filed on behalf of the decree holders/present petitioners denying the purchase of suit land by the judgment debtors. It was also submitted that even after the purchase of a portion of the suit land by the judgment debtors, the decree could still be executed.

2(iv) Issues were framed in the objection petition on 28.12.2007. The parties led evidence in support of their respective contentions After considering the pleadings and the evidence adduced by the parties, the learned trial court held that the original defendant No. 1 Shri Dulo (father of judgment debtors/respondents No. 1 to 3) had purchased the suit land on 27.5.1999 to the extent of 1/16th share and judgment debtor Bhola Ram had also purchased separate share in the suit land. Therefore, the judgment debtors had become co-sharers of the suit land. On becoming co-sharers of the suit land, the judgment debtors cannot be ousted from their possession of the suit land and for this reason actual possession of the suit land was not ordered to be delivered to the decree holders. Instead of warrant of actual possession, warrant of symbolic possession was ordered to be issued in favour of the decree holders.

Aggrieved