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2005 DIGILAW 102 (PNJ)

Nand Kishore v. Dara Singh

2005-01-19

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the First Appellate Court whereby his suit for permanent injunction though decreed by the trial Court was dismissed in appeal by the First Appellate Court. 2. Earlier, the plaintiff had filed a suit for possession of land measuring 14 kanals 6 marlas situated in the revenue limits of Basti Bhiwan, Tehsil Fatehabad, District Hisar. The decree passed by the trial Court was affirmed by the Additional District Judge, Hisar on 8.3.1979. It is the case of the plaintiff that in execution of the such decree, the possession of 9 kanals 4 marlas was delivered to the plaintiff on 13.7.1979 vide rapt roznamcha, Ex.PW-3/1 and possession of the remaining land measuring 5 kanals 2 marlas was delivered to the plaintiff vide rapt roznamcha, Ex.PW-3/2. Since the defendant threatened to interfere in possession in spite of possession so delivered, the plaintiff filed the present suit for injunction. 3. The learned Trial Court decreed the suit. But the learned First Appellate Court dismissed the same on the round that the execution application filed by the plaintiff was dismissed for want of prosecution on 29.9.1979 and that the Local Commissioner appointed has reported the possession is that of the defendant on 10.10.1979. 4. The following substantial question of law arises for consideration:- "Whether the plaintiff having delivered the possession, in execution of the decree for possession, is entitled to protect his lawful possession?" 5. Admittedly, the decree for possession was passed against the defendant. The plaintiff is relying upon the delivery of possession vide rapt roznamcha mentioned above executed with the police help. Once the plaintiff has been delivered possession on the basis of decree of the Civil Court, it was obligatory for the Civil Court to help the plaintiff to protect his possession rather than to vacate the same on the technical ground that execution application was dismissed for want of prosecution on 29.9.1979. The finding recorded by the First Appellate Court that the possession was that of the defendant as found by the Local Commissioner DW-10 Chattar Singh, Naib Tehsildar. The finding recorded by the First Appellate Court that the possession was that of the defendant as found by the Local Commissioner DW-10 Chattar Singh, Naib Tehsildar. The said finding cannot be permitted to stand whereas the possession was lawfully delivered to the plaintiff in execution of the decree with the police help: The report of the Local Commissioner is to defeat the due process of law and should not have been taken into consideration by the First Appellate Court. 6. In view there of the finding recorded by the First Appellate Court are not sustain-able in law. Consequently, while allowing appeal, the suit of the plaintiff is decreed as prayed for.