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2012 DIGILAW 167 (HP)

Joginder Singh v. Krishan

2012-04-05

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. The petitioner got decree in his favour for permanent injunction in Civil Suit No. 741/95 dated 31.8.2005, which was modified in appeal by the learned District Judge, whereby the respondent was restrained from raising further construction over the suit land and taking possession of the vacant portion thereof forcibly, till its partition. 2. The petitioner alleged defiance of the decree, as such filed Execution Petition No. 19/2007 under Order 21 Rule 32 of the Code of Civil Procedure, before the learned trial Court alleging therein that the respondent-JD was carrying on further construction. 3. The parties were at issue and led their evidence. Learned executing Court after appreciating the evidence found that the petitioner-DH had failed to prove that the respondent-JD had raised construction on the suit land causing defiance of decree, as such dismissed the petition. 4. Now the impugned order dated 1.2.2011 passed in execution petition has been questioned in this petition under Article 227 of the Constitution of India, on the grounds of arbitrariness being unjust and illegal, based upon the misreading of the material facts. 5. Ms. Seema Guleria, learned counsel for the petitioner referred to the report of the Local Commissioner appointed during the execution proceedings wherein further construction was pointed out. According to her, learned executing Court committed error by disbelieving, as such the interference is sought. 6. As a matter of fact, the Court while exercising the powers under Article 227 of the Constitution of India is not expected to correct all the errors of the Courts below. The powers of superintendence under this Article are to be exercised where either a wrong principle of law is applied or there is an error of jurisdiction. 7. I have perused the record of the learned executing Court. The petitioner-DH did not produce any evidence with respect to the stage of the construction when the decree was passed, which is necessary in order to appreciate the report of the Local Commissioner as well as the Surveyor to know about the further construction. Further neither the Local Commissioner nor the Surveyor who were examined before the executing Court took the assistance of any of the revenue Officers to locate disputed Khasra i.e. Khasra No. 1219 to establish the fact of further construction, whereas, the respondent-JD denied having passed any decree with respect to the land under construction. Further neither the Local Commissioner nor the Surveyor who were examined before the executing Court took the assistance of any of the revenue Officers to locate disputed Khasra i.e. Khasra No. 1219 to establish the fact of further construction, whereas, the respondent-JD denied having passed any decree with respect to the land under construction. The identity of the land is very much in dispute. The site plan Ext.AW1/A prepared at the instance of the petitioner DH by the Surveyor and also the report of the Local Commissioner Ext.AW2/A do not depict that the alleged construction was a subject-matter of the land regarding which decree was passed. 8. Therefore, I neither find the error of jurisdiction nor the application of wrong principle of law by the learned trial Court, hence, the petition is dismissed, so also the pending application(s), if any.