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2008 DIGILAW 1550 (PNJ)

Jaswinder Singh v. Jit Kaur

2008-09-09

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - The petitioners challenge the order passed by the learned Additional Civil Judge (Senior Division), Sultanpur Lodhi on an application moved under Order 21 Rule 32 read with Section 151 of the Code of Civil Procedure (for short the Code). 2. Jit Kaur and others filed a suit for permanent injunction claiming that they were owners to the extent of 1/4 share in khata No. 104/229, 230 bearing Khasra Nos. 37 min east 76-12, 37 min west/36-6 situated in village Amanipur. It was claimed that on the eastern side of whole land defendant Sucha Singh is in possession of 1/4th share and on the western side of Sucha Singh plaintiffs were in possession of 28 kanals 14 marlas. Remaining land was said to be in possession of other two co-sharers on the western side of the land of the plaintiff. The plaintiffs thus filed a suit for injunction. Said suit was decreed and thus, it was held that Jit Kaur and others are in possession of land measuring 28 kanals 14 marlas on the western side of the land of Sucha Singh and they were entitled to protect their possession. Said decree has attained finality. 3. Respondent decree holders thereafter moved an application under Order 21 Rule 32 of the Code seeking enforcement of order of injunction on the plea that the petitioners who are the legal representatives of Sucha Singh are violating the decree passed in favour of decree holders as they have got changed the entries in the revenue record in collusion with revenue officials and have further encroached upon 7/8 kanals of land in their possession. 4. On notice having been issued the judgment debtors filed reply taking a plea that total area of khasra No. 37 was 112 kanals 18 marlas and not 114 kanals 18 marlas. The factum of change of entries was also denied and it was also denied that any encroachment has been made by the petitioners. It was further claimed that decree holders were in possession of the land according to their shares. Parties were allowed to lead evidence and local commissioner was also appointed. 5. The Local commissioner visited the spot on 30.5.2001 and carried out the demarcation. It was further claimed that decree holders were in possession of the land according to their shares. Parties were allowed to lead evidence and local commissioner was also appointed. 5. The Local commissioner visited the spot on 30.5.2001 and carried out the demarcation. It was reported by the local commissioner that area measuring 40 kanals 6 marlas was in possession of the petitioners whereas on the western side up to the road area measuring 24 kanals 18 marlas was in possession of the decree holder. Thus, it is noticed that as per the demarcation report the area in possession of the decree holder was less than their share of 28 kanals 14 marlas. 6. In view of the evidence led and keeping in view the report of local commissioner, learned executing court has been pleased to hold that judgment debtors have violated the decree of the court and made illegal encroachment upon the land of the petitioners and therefore, in order to satisfy the decree warrant of attachment has been issued. 7. Mr. Naresh Prabhakar, learned counsel for the petitioners contended that there is no evidence of encroachment by the petitioners and therefore, the impugned order cannot be sustained. It is also the contention of the learned counsel for the petitioners that the petitioners were not in possession of excess area than the one to which they were entitled to. 8. Learned counsel for the petitioners placed reliance on the judgment of this court in the case of Jugga v. Mal Singh, 1994(1) PLR 631 to contents that by merely showing that the area of plot is less at the site cannot be led to an inference that the judgment debtor had encroached upon after the decree. The contention of the learned counsel for the petitioners, therefore, is that there is no positive evidence regarding encroachment and therefore, the findings recorded by the learned courts below deserve to be set aside. 9. Learned counsel for the petitioner, thereafter placed reliance on the judgment of this court in the case of Raghubir Singh v. Kabal Singh, 2001(4) RCR(Civil) 841 to contend that the parties being co-sharers were not entitled to maintain application under Order 21 Rule 32 of the Code as no exclusive possession of the respondent was established. 10. 9. Learned counsel for the petitioner, thereafter placed reliance on the judgment of this court in the case of Raghubir Singh v. Kabal Singh, 2001(4) RCR(Civil) 841 to contend that the parties being co-sharers were not entitled to maintain application under Order 21 Rule 32 of the Code as no exclusive possession of the respondent was established. 10. Finally, reliance was also placed on the judgment of this court in the case of Raj Kumar v. Parshotam Dass, 2002(2) RCR(Civil) 678 to contend that in order to sustain the plea of violation of a decree the evidence required is equivalent to one required in criminal cases to prove on charge. The contention of the learned counsel for the petitioners, therefore, is that the evidence with regard to violation of injunction order is totally lacking and therefore, the impugned order cannot be sustained. 11. Mr. B.R. Mahajan, learned counsel for the respondents contended that the order is based on evidence which proves beyond reasonable doubt that the petitioners had encroached upon the land after, passing of the decree. 12. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the petitioners. 13. In the present case it is not in dispute that the exclusive possession of the parties though recorded as co-sharers stands proved by the judgment and decree passed by the civil court holding therein that the petitioners were in possession of 28 kanals 14 marals of land on the western side and injunction was also granted against the predecessors-in-interest of the petitioners from interfering in their peaceful possession. The local commissioner was appointed who specifically reported that the possession of the decree holders was only on 24 kanals 18 marals of land whereas the petitioners were in possession of 40 kanals 6 Marlas of land. 14. Learned Executing Court in the present case has based the findings of encroachment on the basis of findings in the judgment and decree which was sought to be executed and also evidence produced regarding the encroachment. Thus, it cannot be said that there was no evidence to hold that the petitioners have encroached upon the land. 15. In this case, it is proved that there has been encroachment after passing of the decree in view of the findings recorded by the learned civil court as well as the report of local commissioner. 16. Thus, it cannot be said that there was no evidence to hold that the petitioners have encroached upon the land. 15. In this case, it is proved that there has been encroachment after passing of the decree in view of the findings recorded by the learned civil court as well as the report of local commissioner. 16. The exclusive possession of the parties has also been proved as the decree passed is very clear and specific. It also cannot be said that the findings of the learned Executing Court is merely based that on the area being less but is based on the findings of the civil court coupled with the report of the local commissioner showing that the area now in possession of the decree holders was less than the one decreed. The findings recorded by the learned courts below do not call for any interference by this court. No merit. Dismissed. Petition dismissed.