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2013 DIGILAW 873 (HP)

PREM LAL v. JAGAT RAM

2013-10-04

RAJIV SHARMA

body2013
JUDGEMENT RAJIV SHARMA, J. 1. THIS revision petition is directed against the order dated 29.6.2013 rendered by learned Civil Judge (Jr.Divn.) Karsog, District Mandi, in Execution Petition No. 3 X of 2010. 2. "KEY facts" necessary for adjudication of this petition are that learned Additional District Judge Mandi vide his judgment dated 2.4.1994, while allowing appeal of the respondent/decree holder (hereinafter referred to as the "decree holder" for the sake of convenience) modified the decree passed by learned Sub Judge, Karsog in Civil Suit No.38/1988 to the effect that apart from relief of removal of slab projections, as granted by the trial court in favour of the decree holder, he is entitled to a decree of mandatory injunction directing the petitioner/judgment debtor (hereinafter referred to as the "judgment debtor" for the sake of convenience) to remove his . construction on area measuring 0 0 7 Bighas of land in Khasra No.1139/206/1 as shown in Tatima Ext.P2 and further not to interfere in any part of Khasra No.1139/206 in any manner belonging to the decree holder. Earlier, the decree holder also of filed execution petitions No.12 X of 2000 and 16 X of 2000. In the meantime, the parties arrived at a compromise, Ext. PA dated 28.10.1999. Learned Sub Judge 1st Class, Karsog passed a common order in Execution Petitions No.12 X of 2000 and 16 X of 2000 on 30.9.2002. Operative portion of the order reads as under: "The cumulative effect of the aforesaid discussion and findings is that the petitioner in both the petitions does not succeed and petitions stand dismissed, however, with the direction as given foresaid that D.H. will remove foundation within a period of one month as directed aforesaid failing which D.H. is at liberty to take recourse to the appropriate proceedings in law against J.D.. File be consigned to record room after due completion." The decree holder assailed order dated 30.9.2002 before this Court by way of Civil Revision No. 75/2003 and the same was decided by this Court vide order dated 4.11.2008. The operative portion of the order reads as under: "However, if the directions of the executing court have not been complied with, the petitioner Decree Holder would be at liberty to institute such other and further proceedings in accordance with law against the Judgment Debtor. It also cannot be denied that a compromise Ext. The operative portion of the order reads as under: "However, if the directions of the executing court have not been complied with, the petitioner Decree Holder would be at liberty to institute such other and further proceedings in accordance with law against the Judgment Debtor. It also cannot be denied that a compromise Ext. PA having been entered into between the parties, forms the basis of the rights granted and obligations of both the parties. In this view of the matter, if there still exists any part of the compromise which has not been complied with or if the terms of the compromise are violated in future by the Judgment Debtor, it will be open to the Decree Holder to institute fresh proceedings in accordance with law. This petition is accordingly disposed of. There shall be no order as to costs." Thereafter, decree holder filed Execution Petition No. 3 X of 2010 before the learned Civil Judge (Jr. Divn.) Karsog, District. Mandi. Learned Civil Judge (Jr. Divn.) vide order dated 29.6.2013 directed the judgment debtor to remove foundation of latrine wall within one month as per order dated 30.9.2002. Feeling aggrieved, judgment debtor has challenged the order of dated 29.6.2013 by way of present petition. 3. I have heard Mr. G.D. Verma, learned Senior Advocate appearing on behalf of the judgment debtor and have also gone through the pleadings carefully. 4. WHAT emerges from the facts, enumerated hereinabove, is that judgment and decree passed by learned Sub Judge, Karsog in Civil Suit No.38/1988 was modified by learned Additional District Judge Mandi vide his judgment dated 2.4.1994. The decree holder filed execution petitions No.12 X of 2000 and 16 X of 2000. These were disposed of by a common order dated 30.9.2002. Operative portion of the order dated 30.9.2002 has already been reproduced hereinabove. This Court in Civil Revision No.75/2003, preferred by the decree holder, vide order dated 4.11.2008 ordered if the directions of the executing court have not been complied with, decree holder would be at liberty to institute such other or further proceedings in accordance with law against the judgment debtor. This Court has further held that it could not be denied that a compromise Ext. PA having been entered into between the parties, formed basis of the rights granted and obligations of both the parties. This Court has further held that it could not be denied that a compromise Ext. PA having been entered into between the parties, formed basis of the rights granted and obligations of both the parties. It is under these circumstances, decree holder filed execution petition No.3 X of 2010. Aw1, Nokh Ram, deposed that as per record, complaint No.67 II/2010 was pending before them for disposal. . 5. AW 2, Hari Om, deposed that he clicked photographs dated 1.9.2011. According to him, the aforesaid photographs were clicked by him in the month of April 2009. He admitted of that no date has been written on the photographs. 6. AW 3, Dila Ram, is a formal witness. Aw4, Jagat Ram, decree holder, led his evidence by way of filing an affidavit, Ext. Aw4/A. He relied upon compromise deed Ext.PW4/B, order of this Court Ext. PW4/C, order in execution petition Ext.PW4/D, application Mark A, photographs Ext.P2 and Ext.P3, complaint Mark B, certified copy Ext.Aw4/E, revision application Mark C, local commissioner's report Mark D, copy of order dated 2.4.1994 Ext.PW4/F, Tatima Mark E, photocopies of newspaper Mark E & G, photographs Ext.P4 to Ext.P21, copy of order dated 14.6.2011 and Ext. PW4/G and decree Ext. Aw4/H. In his cross examination, he denied that the judgment debtor removed the projection. He also denied that septic tank was removed by the judgment debtor. He volunteered that the judgment debtor firstly removed septic tank and then reconstructed the same on the spot. He denied suggestion that judgment debtor constructed septic tank on his own land. He admitted that judgment debtor removed latrine to the extent of 9 inches as per agreement. However, he volunteered that projection of latrine was not removed and he put another projection. 7. RW 1, Prem Lal, judgment debtor, deposed that as per agreement, he removed construction within three months. He removed septic tank and latrine wall. He did not raise any wall on the land of decree holder. According to him, projection was in his own land. Decree holder raised two pillars and a wall on his land about two years ago. He further deposed that some of portion of corner of slab was put on his land and decree holder broke two corners on the backside of his house. He did not disobey order of the Court. According to him, projection was in his own land. Decree holder raised two pillars and a wall on his land about two years ago. He further deposed that some of portion of corner of slab was put on his land and decree holder broke two corners on the backside of his house. He did not disobey order of the Court. In cross examination, he admitted that decree holder filed a civil suit for encroachment against him, which was partly decreed. He had no knowledge that decree holder filed an appeal against the order passed by Sub Judge before learned Additional District Judge, Mandi. He had also no knowledge that the appeal preferred by decree holder was decided in his favour. He admitted that a compromise was arrived at between them on 27.10.1999. He further deposed that he did not file any complaint regarding breaking of pillar and slab. He admitted that initially he constructed ground floor and his one storey was complete. When construction of his second storey was in progress, decree holder filed a case against him. He denied extension of lintel and latrine in the year 2009. He also denied that he broke pillar and house of decree holder in the year 2010. He admitted photographs Ext. AW2/A and Ext. AW2/B belonging to his house. He also admitted that the house, which was shown in photographs, belonged to him. He admitted that house is consisting of three storeys. He admitted that as per photographs Ext.P14 to Ext.17, construction of his house was going on. He admitted his signatures on agreement Mark X in red circle. 8. THOUGH, Mr. G.D. Verma, learned Senior Advocate appearing on behalf of judgment debtor has vehemently argued that photographs could not be read into evidence, however, fact of the matter is that judgment debtor himself admitted of photographs Ext.AW2/A, Ext.AW2/B, AW P9 to P18 and Ext.PP14 to P17 belonging to his house and pertaining to construction. Learned Civil Judge (Jr. Divn.) Karsog after going through the entire evidence including photographs has come to right conclusion that judgment debtor has not removed foundation of wall of latrine and again raised construction of latrine on the spot. He has also referred to photograph Ext.P14, which reveals that judgment debtor has widened structure of latrine from upper side and projection of the house of judgment debtor comes over the house of decree holder. He has also referred to photograph Ext.P14, which reveals that judgment debtor has widened structure of latrine from upper side and projection of the house of judgment debtor comes over the house of decree holder. Learned Civil Judge (Jr. Divn.) has correctly appreciated oral as well as documentary evidence. There is neither any illegality nor perversity in the order dated 29.6.2013. Accordingly, in view of discussions and analysis made hereinabove, there is no merit in the petition and the same is dismissed. 9. THE parties are directed to be present before the learned executing court on 17.10.2013. 10. PENDING application(s), if any, also stand disposed of. No order as to costs.