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2015 DIGILAW 1818 (PNJ)

Phalia v. Rajinder Pal Singh

2015-09-29

AMIT RAWAL

body2015
JUDGMENT : Amit Rawal, J. Learned counsel for the petitioner-defendant No. 4 restrict his claim in the revision petition to the impugned order dated 12.09.2013 (Annexure P-5), as his client does not have any objection to the direction contained in the order dated 24.05.2013 (Annexure P-3). Accordingly, order dated 24.05.2013 is upheld. Mr. Rajender Chhokkar, learned counsel appearing on behalf of petitioner-defendant No. 4 submits that as per the judgment and decree dated 24.05.2001 the suit of the respondent-plaintiff was partly decreed to the effect that sale deed dated 08.01.1996 was held, not binding upon plaintiff and as well as petitioner-defendant No. 4 as both of them have been treated as co-sharers. Decree Holder-respondents after getting their names entered into revenue record, would have to seek partition and not in a manner and mode as has been chosen and reflected in the impugned order. 2. Mr. N.D. Achint, learned counsel appearing on behalf of respondent-Decree Holder submits, that plaintiffs have a right to seek partition of the property until and unless revenue record in pursuance to the judgment and decree is not correct. He further submits that there is no illegality and perversity in the order dated 12.09.2013, whereby the police help has been granted for, as the petitioner-defendant No. 4 was causing hindrances in raising construction. 3. I have heard learned counsel for parties and appraised the paper book. 4. The operative part of the judgment dated 24.05.2013, read thus:- "Suit of plaintiffs partly succeeds and partly decreed with costs to the effect that sale deed dated 8.1.1996 is not binding upon the plaintiffs and defendant No. 4 would be co-sharers in the entire joint land subject to the rights of other co-sharers on partition. He cannot claim his possession over the specific killa. No. mentioned in the sale deed Ex. P1. Suit of the plaintiffs qua remaining relief as prayed for is dismissed." 5. In pursuance to the aforementioned judgment, the Executing Court vide order dated 24.05.2013 directed the Revenue Authorities to correct the revenue entries in terms of the decree. Since, I have already noted in preceding paragraph, upholding such direction, therefore, there is no illegality and perversity in the order dated 24.05.2013, However vis-a-vis the order dated 12.09.2013, the manner and mode chosen by the Decree Holder is not only capricious but fallacious. Since, I have already noted in preceding paragraph, upholding such direction, therefore, there is no illegality and perversity in the order dated 24.05.2013, However vis-a-vis the order dated 12.09.2013, the manner and mode chosen by the Decree Holder is not only capricious but fallacious. Since, plaintiff and defendant No. 4 are co-sharers, the remedy if any for the parties is to seek partition as they are co-sharers of the joint Khewat. The Decree Holder in pursuance to the judgment, ibid, cannot seek restraint order against the defendant No. 4 and seek the assistance of the Executing Court by providing the police help. 6. The Trial Court in my view committed illegality and perversity in not noticing the operative part of the judgment and decree noticed above by issuing the directions to the police for implementing the decree dated 24.05.2001 and order dated 24.05.2013. In view of what has been observed above, impugned order dated 12.09.2013 (Annexure P-5) is hereby set aside. Parties to the lis i.e. Plaintiff and defendant No. 4 shall be at liberty to seek partition of the joint khewat, in accordance with law. In aforementioned terms, revision petition stands allowed.