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2011 DIGILAW 2129 (HP)

Vijay Kumar v. Ram Saroop

2011-05-05

RAJIV SHARMA

body2011
JUDGMENT Justice Rajiv Sharma, Judge. This revision petition is directed against the order dated 2.2.2011 passed by the learned Civil Judge (Junior Division), Court No. 1, Amb, District Una. 2. Material facts necessary for the adjudication of this petition are that the respondents-decree holders (hereinafter referred to as the “decree holders”, for convenience sake) filed a suit for possession and injunction qua the land comprised in Khewat No. 694, khatauni No. 1011, bearing khasra No. 1576, measuring 16 marlas, as per jamabandi for the year 1981-82, situated in revenue estate, Gagrate. The civil suit was decreed in favour of the decree-holders and they were held entitled for possession of the part of suit land to the extent of encroachment reported by the Local Commissioner in his report, Ext. OW2/A and shown by Aks-Musabi, Ext. OW2/G. The petitioners/judgment debtors (hereinafter referred to as the “judgment debtors” for convenience sake) assailed the judgment and decree before the learned District Judge, Una. He dismissed the same. Thereafter, the judgment debtors preferred an appeal bearing R.S.A. No. 263/2002, before this Court. The matter was remanded back. The learned first appellant Court again dismissed the appeal on 27.6.2009. The regular second appeal was preferred by the judgment debtors against the judgment and decree dated 27.6.2009. The same was dismissed by this Court on 9.11.2009. The Special Leave Petition preferred by the judgment debtors against the judgment of this Court in regular second appeal was also dismissed. The decree holders filed execution petition for execution of the judgment and decree dated 30.10.1995. The judgment debtors filed objections, under Section 47 of the Code of Civil Procedure. According to them, the execution petition was not maintainable, as the decree according to them was not executable and could not be enforced, being vague. According to them, the Settlement Officer had corrected the karukans of the adjoining land of the judgment debtors, as such; fresh demarcation was required to be conducted as per latest revenue record. It was alleged that since the dispute had arisen regarding dimensions and demarcation of the land in question and the revenue authorities was seized of the matter, therefore, the jurisdiction of the Court was barred under Section 171 of the Himachal Pradesh Land Revenue Act, 1954. According to them, first appellate Court, being Civil Court, had no jurisdiction to give any finding with regard to the legality of the order of Settlement Collector. According to them, first appellate Court, being Civil Court, had no jurisdiction to give any finding with regard to the legality of the order of Settlement Collector. In a nutshell, their case is that the order and decree, passed by the first appellate Court on 27.6.2009 was without jurisdiction. According to the judgment-debtors, they have raised construction in the year 1981 and if it is demolished then the construction on the adjoining land shall also get affected. It was also averred that the decree-holders had preferred an appeal against the order of the Settlement Collector before the Divisional Commissioner, Kangra at Dharamshala and the issue of demarcation of land was still pending. In other words, the present execution petition was pre-mature. The decree holders filed reply to the objections filed by the judgment debtors. According to them, the first appellate Court had made it abundantly clear that since the corrections have been carried out during the pendency of the suit, the same carried no value. They have also averred that the Special Leave Petition preferred by the judgment debtors before the Hon’ble Supreme Court was also dismissed. 3. Mr. N.K. Thakur has strenuously argued that the order passed by the Civil Judge (Senior Division), Court No. 1, Amb is not in accordance with law. He further argued that the Civil Court had no jurisdiction to decide the issue in view of the express provision of Section 171 of Himachal Pradesh Land Revenue Act, 1954. 4. Mr. Ramesh Sharma has supported the order dated 2.2.2011. 5. I have heard the learned counsel for the parties and have perused the record carefully. 6. The suit preferred by the decree holders was decreed on 30.10.1995. The judgment and decree passed by the Trial Court was upheld by the first appellate Court. The matter was remanded back in R.S.A. No. 263/2002. The first appellate Court again dismissed the appeal on 27.6.2009. He has recorded a finding that the entries could not be changed during the pendency of the proceedings before the Civil Court. The Regular Second Appeal preferred against the judgment and decree dated 27.6.2009 was dismissed by this Court on 9.11.2009. The Special Leave Petition preferred by the judgment debtors before the Hon’ble Supreme Court against the judgment of this Court was dismissed. The judgment and decree dated 30.10.1995 accordingly has attained the finality. The Regular Second Appeal preferred against the judgment and decree dated 27.6.2009 was dismissed by this Court on 9.11.2009. The Special Leave Petition preferred by the judgment debtors before the Hon’ble Supreme Court against the judgment of this Court was dismissed. The judgment and decree dated 30.10.1995 accordingly has attained the finality. The first appellate Court, as noticed above, has rejected the correction order by the Settlement Officer. 7. Mr. N.K. Thakur has strenuously argued that since the decree holders have preferred an appeal before the Divisional Commissioner, the decree in question could not be executed in view of Section 171 of the Himachal Pradesh Land Revenue Act, 1954. He has also argued that the Civil Court had no jurisdiction to give any finding with regard to the legality of the order of Settlement Collector. The submission made by Mr. N.K. Thakur merits rejection. The Settlement Officer could not pass any order when the Civil Court was seized of the matter. It is reiterated that the order passed by the Settlement Officer was rightly rejected by the first Appellate Court as per judgment dated 27.6.2009. The findings recorded by the first appellate Court on 27.6.2009 have been affirmed by this Court in R.S.A. No. 427/2009, dated 9.11.2009. The objections raised by the judgment debtors in this case have already been decided in judgment rendered by this Court in R.S.A. No. 427/2009 on 9.11.2009. 8. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs.