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2015 DIGILAW 1208 (HP)

Diwan Chand v. Kala Devi

2015-09-01

SURESHWAR THAKUR

body2015
Judgment Sureshwar Thakur, J (oral) 1. The respondent-decree holder pressed before the learned executing court for execution of a decree of mandatory injunction. The decree of mandatory injunction was rendered qua a portion of the suit land standing on the holding of the decree holder and it having come to be purportedly encroached upon by the judgment debtor. A graphic and vivid enunciation of the portion of the suit land purportedly encroached upon by the judgment debtor stands constituted in Aks Tatima Ext.PW.1/B. However, the judgment debtor raised objections to the execution of the decree of mandatory injunction. His objections were purportedly founded upon the factum of his having not encroached upon any part of the holding of the decree holder, for determination thereof he sought demarcation of the contiguous boundaries of his estate with the estate of the decree holder. 2. To succor his contention, he had concerted before the learned executing Court that the demarcation of the boundaries of his estate adjoining the estate of the decree holder be directed by it to be carried out by the Revenue Officer concerned for ascertaining, whether any portion of the holding of the decree holder depicted in Aks Tatima Ext.PW.1/B stands or stands not encroached upon at his instance. The learned executing Court dismissed the objections preferred before it by the judgment debtor on the score of the objector-judgment debtor having omitted to adduce evidence in support of his objections to the execution petition despite his having been afforded a last opportunity to adduce it. However, the learned executing court has fallen into a grave fallacy in seeking elicitation from the judgment debtor evidence qua the fact whether the latter had or not encroached upon any part of the holding of the decree holder enunciated in Ext.PW.1/B. On the contrary, when the rendition of a direction by it to the Revenue Officer concerned for demarcation of the boundaries of the adjoining estate of the decree holder with his estate and the Revenue Officer concerned in compliance thereto having carried out the necessary demarcation and his pronouncing in his report, whether the land depicted in Ext.PW.1/B stood or stood not encroached upon by the decree holder, would have entailed the sequel of the objections raised by the judgment debtor, hence, necessitating theirs being dispelled or sustained. Obviously, the learned executing Court, in having abandoned its duty to appoint a Revenue Officer concerned as a Local Commissioner to carry out demarcation of the boundaries of the adjoining estate of the decree holder with that of the judgment debtor for facilitating it, to on receiving from the Local Commissioner a demarcation report, render a decision qua the veracity or otherwise of the objections raised to the execution petition by the judgment debtor, has forestalled emanation of clinching evidence qua the factum probandum, hence, committed a grave illegality besides a legal impropriety. 3. In aftermath, when for sustaining the objections or stripping them of their legal efficacy, a direction by the learned executing Court to the Local Commissioner to carry out the demarcation of the boundaries of the adjoining estates of the decree holder with that of judgment debtor was necessary and which report of the demarcating officer was un-adducible besides untenderable at the instance of the decree holder. As a corollary, then the concert of the learned executing Court to seek elicitation of the aforesaid report from the judgment debtor was unwarranted besides even when opportunities to adduce the aforesaid evidence, remained un-availed by the judgment debtor, the non-availment thereof cannot be construed to be outstripping the learned executing Court of jurisdictional competence to elicit apposite evidence, by appointing a Local Commissioner to carry out demarcation of boundaries of the adjoining estate of the decree holder with that of the judgment debtor, for establishing or deestablishing the factum of the judgment debtor having or having not encroached upon the estate of the decree holder as divulged in Ext.PW.1/B. Therefore, when the elicitation of the aforesaid piece of evidence was within the domain of or within the jurisdictional competence of the learned executing Court by its rendering a direction to the Revenue Officer concerned to carry out demarcation aforesaid for unearthing the facet aforesaid necessarily then when the said evidence was neither in possession of the judgment debtor nor he could come to possess it without the intervention of the Court in the manner aforesaid. In aftermath, the learned executing Court having closed his evidence on score of his having not availed opportunities to adduce it, necessitates intervention. 4. With the aforesaid observations, the petition stands allowed. In aftermath, the learned executing Court having closed his evidence on score of his having not availed opportunities to adduce it, necessitates intervention. 4. With the aforesaid observations, the petition stands allowed. The learned executing Court is directed to appoint a Local Commissioner to carry out the demarcation of the contentious boundaries of the adjoining estate of the decree holder with that of the judgment debtor and shall within three months decide the execution petition. 5. It is made clear that the observations, made hereinabove, shall have no bearing on the merits of the case.