235

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CR-5585-2017 (O&M)

Date of decision : 17.03.2022

Amarjit Singh

... Petitioner(s)

Versus

Jagdev Singh and Others

... Respondent(s)

CORAM : HON’BLE MRS. JUSTICE ALKA SARIN

Present :

Mr. Sherry K. Singla, Advocate for the petitioner.

Mr. J.S. Maanipur, Advocate for respondent No.1.

ALKA SARIN, J. (ORAL)

Heard in virtual mode.

The present revision petition has been filed under Article 227 of

the Constitution of India challenging the impugned order dated 21.07.2017

(Annexure P-3) passed by the Civil Judge (Senior Division), Bathinda vide

which the warrants of possession of the suit property have been ordered in

the execution application under Order 21 Rule 11 of the Code of Civil

Procedure, 1908 filed by the respondent No.1-decree holder.

Learned counsel for the petitioner-judgement debtor would

contend that the suit property is joint property and the total un-partitioned

land holding of the petitioner is 116 kanals 13 marlas and out of the said

land holding the sale deed has been executed qua 65 kanals 8 marlas.

Learned counsel for the petitioner-judgement debtor would further contend

that in the execution proceedings the sale deed has been executed as also

symbolic possession has been handed over. However, actual physical

possession could not have been ordered to be handed over inasmuch as

YOGESH SHARMA

2022.03.18 08:00

I attest to the accuracy and integrity of this

document

Punjab and Haryana High Court at

Chandigarh

CR-5585-2017 (O&M)

-2-

partition of the property has yet to take place. In support of his arguments,

learned counsel for the petitioner-judgement debtor has relied upon the

judgments of this Court in the cases of “Tarachand & Anr. Vs. Ramnath

& Anr.” [2011 (52) RCR (Civil) 794], “Baldev Singh (deceased) through

LRs Vs. Harbhajan Singh & Ors.” [2015 (3) RCR (Civil) 59] and

“Harjinder Singh (deceased) reptd by LRs Vs. Ravinder Kumar” [1996

(1) RRR 463].

Per contra, learned counsel for respondent No.1-decree holder

has contended that the respondent-decree holder has paid the entire sale

consideration and the sale deed has also been executed in his favour.

Learned counsel for respondent No.1-decree holder would further contend

that the agreement to sell pertains to the year 2007 and the respondent-

decree holder would not be able to reap the fruits of his decree in case the

physical possession is not handed over to him.

Heard.

It is trite that a co-sharer in possession of any specific portion

of the land can sell his share qua the said specific portion to the vendee,

however, the same would be considered as a sale of share out of the joint

land.

In the present case, the sale deed has been executed in favour of

the respondent No.1-decree holder and symbolic possession has also been

given. However, the impugned order dated 21.07.2017 directing issuance of

warrants of possession to the respondent No.1-decree holder has been

impugned. The argument raised by learned counsel for the petitioner-

judgement debtor that the respondent No.1-decree holder is entitled to get

YOGESH SHARMA

2022.03.18 08:00

I attest to the accuracy and integrity of this

document

Punjab and Haryana High Court at

Chandigarh

CR-5585-2017 (O&M)

-3-

only symbolic possession to the extent of a share, and that actual physical

possession can be handed over only once he applies for partition is

meritorious.

In the case of Tarachand & Anr. (supra), this Court has held

as under :

“8. I have carefully considered the rival contentions.

There is not even an iota of material on record to depict

that any partition of joint land had taken place among

the three brothers i.e Appellants and Respondent No. 2.

The objectors/Appellants pleaded that they are in

possession of the suit land along with other joint land to

the extent of their 2/3r