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2012 DIGILAW 306 (HP)

Sudarshan Devi v. Tara Chand

2012-05-25

V.K.SHARMA

body2012
JUDGMENT : V.K. Sharma, J. The challenge herein in this revision petition under Section 115 of the Code of Civil Procedure, 1908 (in short CPC) is against the order dated 06.12.2007, passed by the learned Civil Judge (Senior Division) Kullu, Himachal Pradesh, whereby the execution petition filed by the petitioners-decree holders against the respondents-judgment debtors under Order 21, Rule 32 CPC, has been dismissed. 2. According to the petitioners-decree holders, they had filed Civil Suit No. 195 of 1995 against the respondents-judgment debtors for grant of a decree of perpetual prohibitory injunction seeking to restrain them from raising any construction and changing the nature of the suit land measuring 0-10 biswa, comprised of khata/khatauni Nos. 511 min/927, khasra No. 6814/4265, situate at Phati Shilihar, Kothi Kotkandi, Tehsil and District Kullu, H.P., which is joint of the parties, till the same is partitioned. The suit was decreed on 28.11.2000. However, even despite passing of the decree they constructed a wooden khokha on a portion of the suit land and tried to change nature thereof. The respondents-judgment debtors were asked to desist from there such unlawful acts, but without any result. It was further averred that the respondents-judgment debtors have intentionally and deliberately disobeyed the decree passed by the court and as such the structure raised by them over the suit land is liable to be dismantled and removed at their cost and expenses and their property is liable for attachment. 3. The execution petition was contested by the respondents-judgment debtors on preliminary objection regarding maintainability. On merits the averments regarding filing of the suit and passing of the decree were admitted. However, the allegations with regard to construction of khokha and interference with the suit land in order to change its nature, were denied. 4. On the pleadings on behalf of the parties, the following issues were framed by the learned court below: 1. Whether the JD disobeyed the decree as alleged? OPA. 2. Relief. 5. After the parties led evidence and were heard by the learned court below, the execution petition was dismissed by holding issue No. 1 in negative. Being aggrieved, the petitioners-decree holders are in revision before this Court. 6. I have heard the learned counsel for the parties and gone through the records. 7. OPA. 2. Relief. 5. After the parties led evidence and were heard by the learned court below, the execution petition was dismissed by holding issue No. 1 in negative. Being aggrieved, the petitioners-decree holders are in revision before this Court. 6. I have heard the learned counsel for the parties and gone through the records. 7. The execution petition has been dismissed by the learned court below mainly on two fold grounds, firstly, that PW-1, Shri Daler Singh, had not produced the power of attorney said to have been executed in his favour by the petitioners-decree holders on the basis of which he was making statement in the court on their behalf and secondly the general statements made by the witnesses examined on behalf of the petitioners-decree holders, namely, PW-1, Daler Singh and PW-2 Shri Gopal Singh, are not sufficient in content to prove disobedience of the decree on the part of the respondents-judgment debtors. 8. Insofar as the first ground is concerned, to my mind in the facts and circumstances of the present case, non production of copy of the power of attorney is not very material as the civil suit was filed by the petitioners-decree holders through PW-1, Shri Daler Singh, as their general attorney, as is apparent from the memo of parties to the judgment dated 28.11.2000, Ex. P2. Thus, once the power of attorney is produced on record in the suit, copy thereof is not required to be filed in the execution proceedings. 9. As far as passing of the decree is concerned, the same stands admitted on behalf of the respondents-judgment debtors. However, the inference drawn by the learned court below that the evidence led on behalf of the petitioners-decree holders is not up to the mark, is born out of the material on record. In the execution petition it was stated in general terms that after passing of the decree the respondents-judgment debtors constructed a wooden khokha over a portion of the suit land and tried to change nature thereof, but without specifying precisely as to when the said construction was raised by them, by stating the date, month and year. As the allegations in this regard were denied by the respondents-judgments debtors, the onus to prove the alleged disobedience of the decree was upon the petitioners-decree holders, which they failed to discharge satisfactorily. As the allegations in this regard were denied by the respondents-judgments debtors, the onus to prove the alleged disobedience of the decree was upon the petitioners-decree holders, which they failed to discharge satisfactorily. In the affidavit in evidence of PW-1, Shri Daler Singh, Ex. PW-1/A, apart from the allegation that the respondents-judgment debtors have constructed a wooden khokha on a portion of the suit land and tired to change the nature thereof, it is further alleged that they have also raised construction by building upper storey of their house in the suit land. However, again neither date nor month or year of the alleged construction is mentioned. 10. The record reveals that the suit land is jointly owned by the parties in equal shares, that is, 5 biswa each. However, in an earlier litigation between the parties, the respondents-judgment debtors were found to be in possession of land measuring 5 biswa 14 biswansi and pursuant to compromise between them whereas the petitioners-judgment debtors were delivered possession of 6 biswansi as per order dated 19.09.1995, Ex. PA, Aks Sajra, Ex. PB and Rapat Roznamcha (Daily Diary Report), Ex. PC, the respondents-judgment debtors had compensated the petitioners-decree holders for the remaining 8 biswansi in terms of money as admitted by PW-1, Shri Daler Singh, during cross-examination. 11. PW-2, Shri Gopal Singh, has also stated in his affidavit in evidence, Ex. PW-2/A, in general terms that "I have seen the spot where Sh. Tara Chand and other have constructed a wooden khokha existing on the spot". In cross-examination he has stated that the khokha was not constructed in his presence. He was also not present at the time of demarcation. He has also no knowledge about the area of respondent-judgment debtor No. 1, Shri Tara Chand, and his boundaries. He was also not aware of any compromise between the parties. 12. Respondent-judgment debtor No. 1, Shri Tara Chand, has appeared as RW-1. He has stated that he is owner of khasra No. 4265, measuring 5 biswa, 8 biswansi. According to him, the khokha is 20 years old and his double storeyed house is also existing on the spot which is very old. Disobedience of the decree by the respondents-judgment debtors is denied by him. In cross-examination he has admitted that initially he had purchased land measuring 5 biswa. According to him, the khokha is 20 years old and his double storeyed house is also existing on the spot which is very old. Disobedience of the decree by the respondents-judgment debtors is denied by him. In cross-examination he has admitted that initially he had purchased land measuring 5 biswa. Though he has denied that during the earlier litigation his house was found to be on 5 biswa, 8 biswansi, yet has stated that his possession was over 5 biswa, 8 biswansi and had deposited the cost of land measuring 8 biswansi. He has denied that thereafter he constructed a latrine. He has also denied that his possession was found on land measuring 5 biswa, 14 biswansi. The suggestion put to him that his khokha was removed has been denied by him. By putting such suggestion, the petitioners-decree holders have in a way impliedly admitted that the khokha was already existing on the spot. He has categorically denied that the khokha was constructed after passing of the decree and in intentional violation thereof. 13. Thus, the petitioners-decree holders, have been rightly held by the learned court below to have failed to establish that the khokha in question was raised by the respondents-judgment debtors after passing of the decree and was thus within the mischief of Order 21, Rule 32 CPC. 14. In view of the above, the petition is dismissed being without any merit.