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2001 DIGILAW 266 (PNJ)

Raghubir Singh v. Kabal Singh

2001-02-26

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - An application under Order 21 Rule 32 CPC filed by the petitioners was dismissed by Civil Judge (Senior Division), Hoshiarpur on December 16, 1999. Dissatisfied with the order, the petitioners have preferred this Civil Revision ? 2. A suit for declaration filed by Kabal Singh and other plaintiffs that they and Dilawar Singh-defendant No. 4 are owners in possession of the land in dispute was decreed in terms of an agreement executed between the parties and the parties to the suit were declared owners in joint possession. 3. According to the petitioners, room and verandah is in dilapidated condition. The defendant-judgment debtor wanted to re-construct it, but the plaintiffs-decree holders are against it. They are trying to interfere with his possession. Hence, application with a prayer for taking action against them as contemplated under Order 21 Rule 32 CPC has been filed. 4. The application was resisted by the decree-holders. According to them, it is the judgment debtor who has interferred in their possession. Matter was reported to the police and compromise was effected between the parties. On the pleadings of the parties, following issues were framed by the trial Court :- 1. Whether the respondents have violated the decree passed by the Court as alleged. 2. Relief. 5. After recording evidence, the Court came to the conclusion that no case is made out for taking any action under Order 21 Rule 32 CPC. Resultantly, the application was dismissed. Hence the Civil Revision. 6. I have heard Shri P.K. Joshi, learned counsel for the petitioner and Shri Praveen Kumar, learned counsel for the respondents. 7. The plaintiffs, now respondents, had filed a suit for declaration and permanent injunction as consequential relief, restraining the defendants Raghbir Singh and Sarabjit Singh (now petitioners), from raising any construction on the plot, or in the alternative, a suit for possession. The agreement on the basis of which suit was decree on February 28, 1998 was executed between Bhagat Ram-party No. 1 and Sita Ram Kabal Singh, Raghbir Singh, Sarabjit Singh-party No. 2. The relevant portion of the agreement Exhibit P-1 reads as under :- "Whereas party No. 1 has executed a will dated 19.12.1973 in favour of Party No. 2. The agreement on the basis of which suit was decree on February 28, 1998 was executed between Bhagat Ram-party No. 1 and Sita Ram Kabal Singh, Raghbir Singh, Sarabjit Singh-party No. 2. The relevant portion of the agreement Exhibit P-1 reads as under :- "Whereas party No. 1 has executed a will dated 19.12.1973 in favour of Party No. 2. Party No. 2 has been given the property as under :- Sita Ram has been given 46 (9K-12M) after leaving 1K-8M on the Western side and he will continue to possess 12 kanals 8 marlas of land. Out of Khasra No. 46/13 Kabal Singh has been given 3 kanals 3 marlas on the Southern side. I am in possession of 5 kanals of land in Khasra No. 29 (3 kanals 4 marlas). This land has also been given to Kabal Singh etc. In Khasra No. 47/11-12/19/20, I have 9 kanals, 9 marlas of land and out of this land, 4 kanals 11 marlas on the western side has been given to Kabal Singh and others and the remaining 4 kanals 18 marlas on the Eastern side has been given to Raghubir Singh and others. Inside the phirni I have already given land to Raghubir Singh and others and they are in possession thereof since life and I have partitioned the land and given to them. The party shall be bound by this agreement and will inherit according to this agreement. The parties shall not resile from the agreement and this agreement has been executed on 19.12.1973." 8. The agreement Exhibit D-1 was ordered to be made part of the decree. Though the parties had agreed to abide by the terms incorporated in the agreement, Ex. D/1, yet somehow dispute arose between them which necessitated the filing of the application under order 21 Rule 32 CPC and for that purpose, again the parties approached the Court and led evidence in respect of their claims. 9. The learned Additional Civil Judge (Senior Division), Hoshiarpur has death with the evidence besides making reference to the properties which had fallen share of the respective parties. A specific finding has been returned that in agreement Ex. D/1 there is no specific mention of Khasra No. 135/1 and 44/R/14/2 having been given to the applicant-defendants by Bhagat Ram. 9. The learned Additional Civil Judge (Senior Division), Hoshiarpur has death with the evidence besides making reference to the properties which had fallen share of the respective parties. A specific finding has been returned that in agreement Ex. D/1 there is no specific mention of Khasra No. 135/1 and 44/R/14/2 having been given to the applicant-defendants by Bhagat Ram. Reference is also made to the statement of Kapil Dev AW-1 that these khasra numbers were not mentioned in the agreement Ex. D/1. This fact also stands admitted by the applicants/defendants-Raghubir Singh, who has appeared as his own witness. In cross-examination, he admitted the fact that neither of these khasra Nos. 135, 135/1, 44/R/12/2 were mentioned in the agreement and this land has not partitioned so far. 10. Thus, under these circumstances, since the property has not been partitioned, as observed by the learned trial Court and its not made out whether the petitioners are in exclusive possession over the land mentioned in the application, therefore, in the absence of the same, no action under Order 21 Rule 32 CPC can be taken. This petition is, therefore, dismissed. Petition dismissed.