2025:HHC:39121 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No. 67 of 2020 Decided on: 11.11.2025 ____________________________________________________ Banarsi Dass through LRs. ……….. petitioners Versus Baldev Singh (deceased) through LRs and others. ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Neeraj Gupta, Sr. Advocate with Mr. Dheeraj K. Vashisht, Advocate. For the respondents : Mr. Vivek Thakur, Advocate, vice Mr. Sanjeev Sood, Advocate, for respondents No. 2(a) to 2(d). Respondents No. 1(a) to 1(d) and 3(a) to 3(c) proceeded against ex parte, vide order dated 22.09.2021. ____________________________________________________ Bipin Chander Negi, Judge ( oral) The bone of contention in the case at hand is an encroachment of 5 ½ marlas on land comprised in Khatoni No. 191 min, Khasra No. 218 as per Jamabandi for the year 1983-84, out of total land measuring 2 kanals 19 marlas, situated in village Ladoli, Tehsil Amb, District Una, H.P. (hereinafter referred to as the ‘suit land’). 2. The suit in the case at hand was filed by the respondents, seeking permanent prohibitory injunction, restraining the present petitioners/judgment debtors from 1 Whether the reporters of the local papers may be allowed to see the judgment? interfering in the suit land and raising any construction thereupon. In the alternative, it had been prayed that if in case, the present petitioners/judgment debtors succeed in raising any construction during the pendency of the suit on the suit land, then a decree for mandatory injunction for demolition and removal of the same be passed. 3. The suit initially was dismissed by the learned trial Court and the appeal preferred against the same was allowed by the First Appellate Court. Against the same, an appeal and cross- objections were preferred before the High Court. Both had been dismissed. 4. During the pendency of the appeal before the High Court, the original parties to the lis had died and their legal representatives had been brought on record. Against the same, no further proceedings were taken beyond the High Court and the judgment passed by the High Court attained finality. Subsequent thereto, execution petition was preferred by the present respondents/Decree Holders, in which objections had been filed. 5. The contention of the petitioners/judgment debtors is that one of the heirs of the original plaintiff, i.e., Baldev Singh has sold his right in the suit land to the present petitioners/judgment debtors, thereby improving the status of the petitioners/judgment debtors. 2 6. The sale in the case at hand is dated 26.08.2010. The sale deed is appended along with the execution record at page No. 247. From a perusal of the same, it is evident that the same had been made by Shiv Darshan, S/O late Sh. Baldev, Decree Holder, in favour of petitioner/judgment debtor Banarasi Dass and his legal heirs. From a perusal of the sale deed placed at page No. 247 of the paper book, it is evident that the sale pertains to Khasra Nos. 394, 962 and is specifically stated to be with respect to 1/34th share of Shiv Darshan, who is one of the legal heirs of Baldev Singh. In the aforesaid backdrop, it is the contention of the petitioner/judgment debtor that only symbolic possession needs to be delivered in the case at hand and therefore, the impugned judgment needs to be set-aside. 7. Per contra, learned counsel appearing on behalf of the respondents/Decree Holders has brought the attention of this Court to the revenue record appended along with the execution petition at page No. 243. Specifically attention has been drawn to the reverse side of the said document, wherefrom it is evident that Khasra No. 218 has subsequently been renumbered as Khasra Nos. 961, 962 and 963 and this has been shown in the possession of Sant Ram, i.e., the present respondent No. 2, who is now represented through his legal representatives, LR No. 2(a) to 2(d). 3 8. The specific objection taken by the respondents/decree holders is that in so far as the suit land is concerned, a partition had taken place way back in 1997 and delivery of possession was made on 06.06.1997 after preparation of instrument of partition, i.e., Sanad Taksim and in this respect a rapat bearing No. 147 dated 06.06.1997 had been entered depicting the delivery of possession. The same is at page No. 229. At page 231, it has been categorically reflected that Khasra Nos. 961, 962 and 963 erstwhile Khasra No. 218 have been given to Sant Ram. 9. In the aforesaid backdrop, it is contended by the respondents/Decree Holders that once partition has taken place then symbolic possession is not to be granted. It is actual possession, which has to be granted and therefore, the order passed by the learned Trial Court calls for no interference. 10. Per contra, learned counsel appearing on behalf of the petitioner/judgment debtor in rebuttal has submitted that the properties as on date are un-partitioned and in order to demonstrate the same, he has drawn the attention of this Court to the partition proceedings placed on record. 11. Partition proceedings were initiated at the behest of Sant Ram. The case so registered bore No. 131/P/1994, the same was registered on 05.09.1994. The order in this respect is at page No. 383 of the paper book. 4 12. Feeling aggrieved by the impugned order dated 30.01.1997, Baldev Singh had preferred an appeal. The same was instituted on 16.04.1998 in the Court of the Collector. The same was decided on 18.05.2004. The same was dismissed on the ground that there was delay in the presentation of the appeal and since the delay had not been explained, therefore, the appeal had been dismissed on the ground of limitation. Moreover, in the order passed by the Collector, it was categorically mentioned that Sanad Taksim had been issued and possession had been delivered to the parties. The rapat in this respect is at page No. 238 of the paper book. 13. The order dated 18.05.2004 passed by the Collector was assailed before the Divisional Commissioner Kangra by institution of an appeal, bearing No. 85 of 2004. The same was instituted on 31.05.2004 and it was decided on 03.08.2011. The Divisional Commissioner in his order dated 03.08.2011 recommended condonation of delay of four months in filing the appeal before the Collector in terms of the law laid down by the Supreme Court in AIR 1987 SC 1353. The recommendation so made to the Financial Commissioner was registered as Revision Petition No. 212/2011 before the Financial Commissioner (Appeals). The same was instituted on 18.10.2011 and is at page No. 341 of the paper book. The same was decided on 07.08.2012. Vide order dated 07.08.2012, the Financial 5 Commissioner accepted the recommendation made by the Divisional Commissioner dated 03.08.2011 for condoning the delay in filing the appeal before the Collector and thereby set- aside the impugned order passed by the Collector dated 18.05.2004 and directed the Collector, Sub Division, Amb to decide the appeal on merits. 14. On remand, the case was re-registered (restored to its original number) in the Court of the Collector, Sub Division, Amb as case No. 21/Appeal/1998. The date of institution was also reflected as original date of filing before the Collector, i.e., 16.04.1998. The same was decided on 10.01.2019. The same is at page No. 391 of the paper book. From the perusal of the same, it is evident that a final partition was ordered in accordance with the mode of partition since the Collector, Sub Division, Amb was of the view that the partition had not been done in accordance with the classification and nature of land. It was made clear that for conducting final partition, mode of partition already prepared shall be the basis for the final partition. 15. The order dated 10.01.2019 passed by the Collector Amb in Appeal No. 21/Appeal/1998 has been assailed before the Court of Divisional Commissioner, Kangra, wherein vide order dated 25.02.2019 passed in Appeal No. 63 of 2019, operation and execution of order dated 10.01.2019 passed by the Collector 6 Amb and order dated 30.01.1997 passed by the Assistant Collector First Grade Amb, have been stayed till further orders. 16. In the aforesaid facts and attending circumstances, the Executing Court has ordered delivery of possession. Feeling aggrieved of the same, the present petition has been preferred. 17. The suit land at the time of filing of the suit was denoted Khasra No.218. The same was subsequently renumbered as Khasra Nos.961, 962 and 963. Admittedly, in the case at hand, the petitioners/judgment debtors purchased 1/34th share of one Sh. Shiv Darshan Singh son of late Sh. Baldev decree holder (original plaintiff). From a perusal of the record, it is an admitted position that the suit land is a subject matter of partition. 18. There is no dispute qua the settled legal position that the executing court cannot go behind the decree and has to execute it as its stands. However, in terms of Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit. Section 47 reads as under: “47. Questions to be determined by the Court executing decree.—(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be 7 determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation 1.—For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II—(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]” 19. The Executing Court has placed reliance on Jagdish Dutt and Anr. Vs. Dharam Pal and Ors., reported in AIR 1999 SC 1694. In the same, a decree for actual possession of immovable property was passed. One of the coparceners assigned/transferred is interest in the decree in favour of the judgment debtors. It was held that the decree in such situation would get extinguished to the extent of the interest so transferred and further that execution petition would lie only to the extent of remaining part of the decree. It was also observed that where the interest of coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, then a decree for actual possession of immovable property cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. The relevant para of the judgment reads as under: 8 “7. When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of ail the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the share of the decree holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing court cannot find out the shares of the decree holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC. Order XXI, Rule 15, CPC enables a joint decree holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto. Various decisions cited by either side to which we have referred to do not detract us from the principle stated by us as aforesaid. Therefore, a detailed reference to them is not required.” 20. 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 9 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. 21. The revision petition is accordingly allowed, the impugned order passed by the Executing Court is quashed and the Executing Court is directed to deliver symbolic possession in the decretal land to the respondents/decree holders as against their claim for actual possession in terms of Order 21 Rule 35(2) CPC. Pending miscellaneous application(s), if any, shall stand disposed of. (Bipin Chander Negi) Judge 11th November, 2025 Susheel 10