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2011 DIGILAW 232 (ALL)

SOM NATH v. VITH A. D. J. BAREILLY

2011-01-31

S.U.KHAN

body2011
JUDGMENT Hon’ble S.U. Khan, J.—The order which was passed on the date on which judgment was reserved, i.e. 1.11.2010 is quoted below: “Sri K.D. Tripathi, learned counsel has filed vakalatnama on behalf of petitioner. No one has appeared on behalf of contesting respondents. Heard learned counsel for the petitioner, who has solely placed reliance upon Article 135 of the Schedule to the Limitation Act.” 2. Respondent No. 3, Smt. Katori Devi instituted O.S. No. 629 of 1967 against Hori Lal, predecessor-in-interest of petitioners in the Court of Munsif, City, Bareilly. The suit was decreed by Additional Civil Judge, Bareilly on 7.1.1972. Copy of the said judgment is Annexure-II to the writ petition. Findings on issue No. 5 (last para before order) and the order are quoted below: Issue No. 5.—The net result is that the plaintiff is entitled to a decree for (No. 1) removal the wall E X built by the defendant, and for possession over the site of the old wall, (2) Rs.200/- as consists of the original wall demolished by the defendant, (3) perpetual injunction restraining the defendant from interfering with the plaintiff’s possession over the same, and (4) removal of constructions etc. made by the defendant in the disputed passage A B C D E F G A. However she is not entitled to the relief of possession over the disputed passage in view of the finding that she is not its exclusive owner, and that she has only right of passage through it unobstructed in any way. Order The suit is hereby decreed for (1) removal of the wall E X built by the defendant, and for possession over the site of the old wall, (2) Rs.200/- as costs of the original wall demolished by the defendant, (3) perpetual injunction restraining the defendant from interfering with the plaintiff’s possession over the same, and (4) removal of constructions etc., made by the defendant in disputed passage A B C D E F G A. The parties shall get proportionate costs according to their success. 3. Against the said judgment and decree defendant of the said suit filed Civil Appeal No. 53 of 1972, which was partly allowed on 8.8.1972 by A.D.J. Bareilly. The operative portion of the Judgment is quoted below: “The appeal is partly allowed with proportionate cost. 3. Against the said judgment and decree defendant of the said suit filed Civil Appeal No. 53 of 1972, which was partly allowed on 8.8.1972 by A.D.J. Bareilly. The operative portion of the Judgment is quoted below: “The appeal is partly allowed with proportionate cost. The judgment and decree of the learned lower Court are modified to this extent that the relief about removal of disputed constructions from over the Rasta land ABCDEFGA shall no longer stand granted to the plaintiff. In all other respects the judgment and decree of the lower Court are confirmed.” 4. The said judgment is Annexure-III to the writ petition. Thereafter, both the parties filed second appeals in this Court being Second Appeals No. 2793 and 2888, both of 1972. Both the second appeals were allowed on 30.11.1979 and it was held that appeal of the defendant was also liable to be allowed and the plaintiff’s suit for demolition of the wall EX was to be dismissed. Last two paragraphs of the judgment dated 30.11.1979 passed in the second appeals by this Court are quoted below: “In the result, both the appeals succeed. The plaintiff’s suit for demolition of the constructions FGHIJF in the passage ABCDEF is decreed. The suit of the plaintiff for demolition of the wall EX is dismissed. It is made clear that both the parties are entitled to have support from the wall EX and maintained the said wall. Both the appeals are consequently allowed, the judgment and decree passed by the lower appellate Court are modified as above. The parties are directed to bear their own costs.” 5. Copy of the plaint is Annexure-I to the writ petition. The first prayer is that the defendant be restrained by permanent prohibitory injunction from interfering in the plaintiff’s right of use of the passage shown by letters A B C D E F G A and from making any construction there upon. The other relief was for permanent prohibitory injunction restraining the defendant from making construction over the wall XE and from demolishing the said wall. The other relief was for permanent prohibitory injunction restraining the defendant from making construction over the wall XE and from demolishing the said wall. Thereafter, there is another relief in this regard (which appears to have been added afterwards) to the effect that the defendant had illegally constructed the wall XE and had also made some constructions thereupon which should be demolished through Court Amin and possession should be redelivered to the petitioner on the land covered by XE wall width of which was one and a half brick. The last effective relief is that defendant be directed to remove his constructions shown by FGHIJF in the passage for ingress and outgress, in possession and ownership of plaintiff, shown by letters ABCDEFGA otherwise through Court Amin plaintiff should be delivered the possession of the rasta after demolition of the new constructions FGHIJF. 6. The plaintiff decree-holder respondent No. 3 filed execution application on 5.1.1983, which was registered as Execution Case No. 1 of 1983. 7. The grievance of the defendant/J.D./petitioner is that the decree, which was ultimately passed by this High Court on 30.11.1979 was a decree for mandatory injunction, hence by virtue of Article 135 to the Schedule annexed to the Limitation Act, 1963, the limitation to file execution application for such decree was only three years, which expired on 29/30.11.1982 and the execution application was filed beyond time by about five weeks. The Executing Court/ First Additional Civil Judge, Bareilly issued writ of demolition through orders dated 25.1.1983, 27.1.1983, 3.2.1983 and 18.2.1983. Copies of the said orders are contained in the order-sheet, copy of which is Annexure-VI to the writ petition. Against the said orders, petitioners filed Civil Revision No. 41 of 1983. A.D.J. (III), Bareilly allowed the revision through order dated 21.9.1985 and quashed all the four orders and directed Executing Court to issue notices to other J.Ds. for filing objection, and decide the matter thereafter. True copy of the judgment dated 21.9.1985 is Annexure-VII to the writ petition. Thereafter objections were filed. Thereafter the Executing Court through orders dated 14.1.1987 and 24.1.1987 again issued writ of demolition. The said orders are also contained in the order-sheet, copy of which is Annexure-VI to the writ petition. 8. for filing objection, and decide the matter thereafter. True copy of the judgment dated 21.9.1985 is Annexure-VII to the writ petition. Thereafter objections were filed. Thereafter the Executing Court through orders dated 14.1.1987 and 24.1.1987 again issued writ of demolition. The said orders are also contained in the order-sheet, copy of which is Annexure-VI to the writ petition. 8. It is stated in Para-19 of the writ petition that learned District Judge, Bareilly suo motu summoned the record and exercised the power of revision under Section 115, C.P.C. Annexure-IX to the writ petition is the order of District Judge, Bareilly dated 28.5.1987 given in Civil Revision No. 73 of 1987, Somnath and others v. Smt. Katori Devi. The order mentions that “on matter being brought to my notice by Sri Govind Prasad, advocate I examined the record of Execution Case No. 1 of 1983.” In the said order it has further been mentioned that it appeared from the record that writ of demolition and possession had been issued without consideration and compliance of order dated 21.9.1985 passed in the earlier revision (Civil Revision No. 41 of 1983) and without information or notice to counsel of J.D. No. 1/1 who had filed objections and without disposal of question of limitation. Thereafter, the said revision was dismissed on 3.11.1992 by A.D.J. (VI), Bareilly. Copy of the said judgment is Annexure-X to the writ petition. The Revisional Court considered the question of limitation. The Revisional Court held that it was not merely a decree for mandatory injunction, hence it was not covered by Article-135 of the Limitation Act as the plaintiff was to get possession also after demolition. The Revisional Court placed reliance upon 1986 AWC 10. Through this writ petition, prayer for setting aside the judgment and order dated 3.11.1992 passed in Civil Revision No. 73 of 1987 has been sought. Orders passed by the Executing Court issuing writ for demolition have also been sought to be set aside. Writ of mandamus has also been sought commanding the respondents to dismiss Execution Case No. 1 of 1983. 9. I do not agree with the contention of learned counsel for the petitioner that the decree was for mandatory injunction alone, hence it could not be executed after more than three years. Firstly other prayers were also there apart from prayer of mandatory injunction. 9. I do not agree with the contention of learned counsel for the petitioner that the decree was for mandatory injunction alone, hence it could not be executed after more than three years. Firstly other prayers were also there apart from prayer of mandatory injunction. Secondly, even in the prayer of mandatory injunction in the plaint (sa) the first part of the prayer was that defendant must be directed to remove the construction made in the passage, however in the same sentence it was also prayed that in case defendant did not do so, through Court Amin plaintiff should be delivered possession after demolition of new constructions. 10. Accordingly, it could not be said that it was pure and simple relief of mandatory injunction. In this regard revisional Court rightly referred to Dakhilal Kushwaha v. A.D.J., 1986 AWC 10. 11. In the aforesaid authority it has been held that if the suit is decreed for demolition and possession then decree for demolition becomes non executable if execution is not filed within three years, however, decree for possession may be enforced by filing execution application within 12 years and in the latter contingency defendant/JD would be either entitled to take away the superstructure or he would be paid the cost thereof. Same principle applies to a combined decree of mandatory injunction and prohibitory injunction. The third relief granted by the trial Court and maintained uptil this Court is for a perpetual prohibitory injunction. The operative portion of the judgment by the trial Court is not very happily worded, however, reading it alongwith issue No. 5 regarding relief it is quite clear that it has also been decreed that the plaintiff has right of passage through A B C D E F G A unobstructed in any way. It means that decree for permanent prohibitory injunction has also been granted. Such a decree cannot be enjoyed unless constructions in the passage apart from wall E X are removed. For executing a decree for permanent prohibitory injunction no time limit is prescribed (proviso to article 136 of the Schedule to the Limitation Act 1963). The trial Court passed the decree for removal of construction also. Such a decree cannot be enjoyed unless constructions in the passage apart from wall E X are removed. For executing a decree for permanent prohibitory injunction no time limit is prescribed (proviso to article 136 of the Schedule to the Limitation Act 1963). The trial Court passed the decree for removal of construction also. Accordingly, in my opinion, just as decree for possession remains intact even if execution application for executing decree for mandatory injunction is not filed within three years, similarly, decree for permanent prohibitory injunction remains executable even if application for executing that part of the decree through which mandatory injunction has been granted is not filed within three years. Further, if in order to execute the decree for permanent prohibitory injunction, removal of some construction is necessary then it may be done at any time even though it was also directed to be done through the decree by way of mandatory injunction. 12. Accordingly, there is no merit in the writ petition, hence it is dismissed. —————