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2011 DIGILAW 2185 (HP)

Ajudhya Devi v. Surinder Kumar

2011-05-26

DEEPAK GUPTA

body2011
JUDGMENT : Deepak Gupta, J. The petitioner-Ajudhya Devi (hereinafter referred to as the DH) filed a suit against six persons who were defendants to the suit. In this suit it was claimed that the DH is owner in possession of the land comprised in khata No. 158, khatauni No. 184, khasra No. 432 measuring 17-22 sq. meters in Mauja Mangwain,Tehsil Sadar, District Mandi. It was alleged that the defendants, who are owners of the adjoining land, had encroached upon a portion of khasra No. 432 and raised a wall thereon and had blocked the passage and had also affected the easementary rights of light and air of the DH. 2. During the course of this suit, evidence was recorded and report Ext. PW2/A was proved by the Kanungo and Patwari and as per this report, it was found that the defendants had encroached upon 1-76 sq. meters of land belonging to the DH. The Tatima Ext. PB was prepared in respect of this land which was depicted as khasra No. 432/1. After discussing the entire evidence, the learned Trial Court held that the defendants had in fact encroached upon the land of the DH to the extent of 1-76 sq. meters by raising a brick wall thereupon. Further it was held that by raising such construction the defendants had blocked the easementary rights of light and air of the DH. Thereafter a decree was passed in the following terms:- "......................................................................................... Defendants are directed to deliver the vacant possession of the suit land comprised of khasra No. 432/1 after demolishing the structure raised over it. Defendants are also restrained permanently from blocking light and air to the house of the plaintiff and encroaching upon the suit land in any manner...................................................." 3. Admittedly appeal filed by the defendants against the said decree was dismissed. The suit was decreed in the year 1995. The appeal was dismissed in the year 1996 and thereafter the real litigation started. 4. The DH filed execution petition to enforce the decree, but for 11 long years she has been totally unable to get the fruits of the decree. It appears that after the decree was passed and appeal dismissed, the defendants sold the property to the objectors as far back as on 6.7.2000. The Executing Court found that the sale had been made after the decree and, therefore, the person in possession was bound by the decree. It appears that after the decree was passed and appeal dismissed, the defendants sold the property to the objectors as far back as on 6.7.2000. The Executing Court found that the sale had been made after the decree and, therefore, the person in possession was bound by the decree. Warrant of possession were issued from time to time. 5. Surprisingly, the Executing Court also appointed a Local Commissioner again to demarcate the land. In my view this could not have been done. A Local Commissioner could have been appointed to ensure that the decree is executed in terms of the decree passed by the Civil Court, but no fresh demarcation was required and the decree had to be executed in term of demarcation report Ext. PW2/A and Tatima Ext. PB which had been accepted by the learned Trial Court to be correct. 6. This process continued for many years and now a report has been submitted that in fact on carrying out fresh demarcation, it has been found that there is no wall in khasra No. 432 and in fact there is some overhanging/chajja which is projecting the land of the DH, but with regard to that there is no decree. The learned Executing Court has dismissed the execution as satisfied. Hence, the present petition. 7. It indeed reflects poorly on our judicial system that a person even after obtaining a decree in her favour cannot reap the benefits of the same. The execution has consumed more time than the suit and the appeal. None of the Presiding Officers of the Executing Court examined the case in a proper manner. Without giving any reason only at the behest of the judgment debtor local commissioners were appointed again. I fail to understand what was the need to appoint a Local Commissioner to demarcate the land afresh because demarcation had been carried out and after demarcation the encroached portion measured and found to be 1-76 sq. meters and thereafter a Tatima of this encroached area was also prepared. 8. All that was required to be done was that to appoint a revenue official as Local Commissioner to ensure that the decree was executed in terms of the aforesaid report and Tatima. No fresh demarcation was required to be carried out. meters and thereafter a Tatima of this encroached area was also prepared. 8. All that was required to be done was that to appoint a revenue official as Local Commissioner to ensure that the decree was executed in terms of the aforesaid report and Tatima. No fresh demarcation was required to be carried out. When a Civil Court decides a matter and accepts the report of the revenue official and on the basis of such report comes to the conclusion that any party has encroached upon a land, then this report is an integral part of the judgment. The job of the Court is not over just by passing a decree, but the majesty of the law can only be upheld if the Court is ensures that the decrees are complied with in letter and spirit. 9. This is not the first case of its type which has come before this Court. I have observed that in a large number of cases the decrees of the Civil Courts based on demarcation given by revenue official are being set at naught by subsequent reports given by other revenue official. Even in the report Ext. PG nothing has been pointed out as to what is wrong with the report Ext. PW2/A. The Executing Court cannot sit over the judgment delivered by the Court. The job of the Executing Court is to ensure that a decree is executed, otherwise it will lead to a very anomalous situation because when the encroachment is of a small piece of land different demarcations may result in different reports. It is more than apparent that the decree has not been executed till date. The stand of the defendants that the wall has been demolished by the subsequent purchasers does not appear to be correct. Even if that is true, it is only on the basis of the demarcation report given in the main suit that the measurements had to be done and it is the duty of the Local Commissioner to ascertain at the spot on the basis of this demarcation alone, whether the decree has been complied with or not. 10. Even if that is true, it is only on the basis of the demarcation report given in the main suit that the measurements had to be done and it is the duty of the Local Commissioner to ascertain at the spot on the basis of this demarcation alone, whether the decree has been complied with or not. 10. In view of the aforesaid discussion, the present petition is allowed and the order of the learned Trial Court is set aside and the matter is remanded to the learned Executing Court to ensure that the decree is executed in terms of the observations made herein above. It is, however, clarified that decree is only in respect of khasra No. 432. It would be the duty of the Court to ensure that the decree is executed by carrying out measurements in accordance with the demarcation report Ext. PW2/A and Tatima Ext. PB and the instructions issued by the Financial Commissioner. Since, the matter is a very old one, the parties are directed to appear before the learned Trial Court on 20th June, 2011. The learned Trial Court shall make an endeavour to ensure that the decree is executed latest by 31st December, 2011. 11. No costs.