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2006 DIGILAW 1595 (PNJ)

Shamboo v. Darshan Singh

2006-04-21

SURYA KANT

body2006
Judgment Surya Kant, J. 1. An application under Order 21 Rule 32 CPC filed by the petitioner having been dismissed by the Executing Court vide its order dated May 31, 2003, the petitioner has filed this revision petition for setting aside the same. 2. The petitioner had filed a suit for permanent injunction to restrain the respondents from interfering in the lawful possession of his house constructed over land measure 1k 5m being share out of the land measuring 2k 10m comprising in Khasra Nos.321 (1-6) and 323 (1-4), khewat No.96, Khatauni No.130 situated in the revenue estate of village depur, Tehsil Dasuya, District Hoshiarpur. Along with the plaint, the petitioner also appended a site plan in which the suit property was shown and marked by letters ABCD. The said site plan is Ex. A5 in the execution proceedings. 3. The respondents, apart from contesting the above said suit, raised a counter claim for possession of 10-M land out of khasra nos.323 and 346 which, according to the respondents, was illegally taken into possession by the petitioner during the pendency of the suit. Learned civil court vide its judgment and decree dated 19.8.2002 decreed the petitioners suit in toto and dismissed the respondents counter-claim. It is not disputed that the said judgment and decree have attained finality. 4. The petitioner thereafter filed an application under Order 21 rule 32 CPC alleging that the respondents have violated the decree of permanent injunction passed in his favour as they have illegally demolished the wall constructed by him in the suit property and that they are also not permitting him to raise further construction. The Executing Court appointed a local commission who visited the spot and submitted the report, dated 25.1.2003, Ex. A1. As per the report, certain foundations had been raised on a part of the land; construction material was also lying there and bricks pasted with cement were found scattered. 5. The executing court, however, dismissed the aforesaid application primarily on the ground that the petitioner is reluctant in getting the disputed khasra nos. demarcated at the spot. The Executing court also took notice of the petitioners own stand in the civil suit that he had no claim whatsoever over khasra nos.323 or 346 and that his claim was confined to khasra Nos.321 and 322 only. Aggrieved, the petitioner has approached this Court. 6. demarcated at the spot. The Executing court also took notice of the petitioners own stand in the civil suit that he had no claim whatsoever over khasra nos.323 or 346 and that his claim was confined to khasra Nos.321 and 322 only. Aggrieved, the petitioner has approached this Court. 6. Shri Cheema, Learned Counsel for the petitioner, contends that in terms of the decree passed by the civil court in the petitioners favour, the petiioner does not want any interference by the respondents in his possession over the subject property as reflected in the site plan ex. A5 which was a part of the pleadings in the suit filed by him. Shri cheema contends that by insisting upon the demarcation of the khasra numbers, the learned Executing Court has gone behind the decree passed by the civil court and, therefore, the impugned order cannot sustain. On the other hand, s/shri Rakra and Dadwal, Learned Counsel for the respondents, contend that the site plan Ex. A5 has to necessarily reconcile with khasra nos.321 and 322 in relation to which the suit was filed and the area in the site plan cannot be permitted to be expanded so as to include the khasra nos.323 or 346 also. 7. After hearing Learned Counsel for the parties, I do not find any merit in this revision petition. The petitioners suit was decreed qua khasra no.321 and 322 only. In the execution proceedings, the onus was on him to prove that the area depicted in the site plan Ex. A5 is confined qua these two khasra numbers only and does not include or falling in khasra nos.323 and 346. It was thereafter that the petitioner ought to have proved that notwithstanding the civil court decree in his favour, the respondents are causing interference in his peaceful possession over khasra Nos.323 and 346. In my view, the Executing Court has rightly insisted upon for getting the khasra numbers demarcated at the spot. The bald allegations made by the petitioner regarding encroachment by the respondents over the land mentioned in the site plan Ex. A5, therefore, cannot be accepted. For the reasons aforementioned, this revison petition is dismissed. No order as to costs.