Objectors have purchased shares in the suit land from other co-sharers and, therefore, have themselves become co-shares over the suit land. This honorable judgement was passed by High Court of Shimla in the case of Sh. Parveen Kumar & ors. Versus Smt. Fikki & ors. [CMPMO No. 342 of 2014] by Ms. Justice Jyotsna Rewal Dua, Judge.
The objections preferred by the judgment debtors to the execution petition filed by the decree holders had been partly allowed by the learned Executing Court vide order, which is impugned herein by the decree holders. In terms of this order, instead of actual possession, only symbolic possession of the suit land has been ordered to be delivered to the decree holders. A civil suit was instituted, the plaintiffs asserted themselves to be owners along with other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 83, Khasra No. 77, measuring 0-00-43 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 an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. decreed the suit of the plaintiffs against the defendants for vacant possession of suit land.
The legal heirs of original plaintiff filed an execution petition under Order 21 Rule 11 of Code of Civil Procedure for executing the aforesaid decree. The prayer in the execution petition was for putting the plaintiffs/decree holders into actual possession of the suit land after demarcation of boundaries. 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.
The petition was dismissed stating that, “The ratio of aforesaid judgments squarely applies to the facts of the case. In the instant case, the judgment debtors/objectors have proved on record that they had become co-sharers of the suit land subsequent to passing of the decree sought to be executed. The suit land is now jointly owned by them along with various co-sharers. In such situation, their possession over the suit land cannot be treated as illegal and, therefore, they cannot be ousted from such possession. The judgment debtors/objectors have purchased shares in the suit land from the other co-sharers. Their possession of the suit land is now in a capacity different from the one in which they had suffered the decree for possession.”