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2015 DIGILAW 1878 (RAJ)

Ratan Singh v. State of Rajasthan

2015-11-06

P.K.LOHRA

body2015
JUDGMENT 1. - Petitioners-defendants have preferred this writ petition to challenge the impugned order dated 14.10.2015 (Annex.10) passed by the learned Civil Judge (Sr.Division)-cum-Addl.Chief Judicial Magistrate, Phalodi (for short 'the Executing Court') in Execution Case No.2/2012. By the order impugned, the learned Executing Court has issued necessary directions to comply with the decree which was passed against the petitioners for removal of encroachment at the place marked as 'O' to 'P' in the map (Ex.1). 2. The bare necessary facts are that respondents-plaintiffs filed a civil suit for permanent injunction and removal of encroachment against the petitioners-defendants. In the plaint, it was specifically pleaded that petitioners have encroached over their way by erecting a wall and the offending construction of wall was shown in the map as 'O' to 'P'. It is also averred that the said way is for ingress and egress of public at large and, therefore, this obstruction is liable to be removed and the encroachments made therein by the petitioners be immediately removed. At the threshold, the suit was decreed by the learned Trial Court on 06.04.2009 and necessary injunction order was issued for removal of obstruction at the point 'O' to 'P'. The judgment aforesaid was assailed by the petitioners and thereupon, the learned Additional District Judge, Phalodi set aside the judgment on 29.08.2009. The aforesaid judgment and decree of the Appellate Court is challenged by the respondents-plaintiffs by preferring S.B.Civil Second Appeal No.254/2009. The second appeal was allowed and the judgment of the first Appellate Court was set aside by judgment dated 30.03.2011 and the matter was remanded back to the learned first Appellate Court. After remand, the learned first Appellate Court dismissed the first appeal of the petitioners by its judgment and decree dated 11.08.2011. The said verdict of the first Appellate Court was again challenged by the petitioners before this Court by preferring second appeal and the same was dismissed on 16.04.2012. A Special Leave Petition preferred by the petitioners against the said judgment of this Court was also dismissed by the Hon'ble Apex Court. 3. After the decree attained finality, the respondents-plaintiffs put it to execution. A Special Leave Petition preferred by the petitioners against the said judgment of this Court was also dismissed by the Hon'ble Apex Court. 3. After the decree attained finality, the respondents-plaintiffs put it to execution. In the execution petition, at the behest of the petitioners, objections were submitted under Section 47 CPC precisely on the ground that the alleged encroachment at the point 'O' & 'P' is not clear from the decree as no measurements are shown and, therefore, the decree cannot be executed. The learned Executing Court by its order dated 04.07.2012 rejected the objections of the petitioners. Against the said order, petitioners preferred a revision petition before this Court which was registered as S.B. Civil Revision Petition No.122/2012. This Court disposed of the revision petition by giving liberty to the petitioners to construct their own boundary wall on their pattasud land for which patta No.56 dated 22.01.1990 and patta No.349 and 359 have been issued in their favour in the year 1985-86. However, subject to the condition that between the two side plots on the northern and southern side of the land as shown in Ex.1, they will have to leave the passage of the width, which is in front of said stone gate (HINDI) constructed by them and further they were directed not to encroach upon the said land of passage (Point 'O' to 'P'). The relevant observations of this Court in para 6 of the verdict reads as under:- "6. Having heard the learned counsel for the parties, this Court is of the opinion that the present revision petition can be disposed of by directing that the petitioners/objectors, Ratan Singh and his wife Smt. Sayar Kanwar will be free construct their own boundary wall on their "Pattasud" land for which Patta No.56 dated 22.01.1990 and Patta No.349 and 359 have been issued in their favour in the year 1985-86 but in between the two sides plots, on the northern and southern side of the land as shown in Exhibit-1, they will have to leave the passage of the width, which is in front of said stone gate (Hindi) constructed by them and under the garb of said "Pattasud" land, they will not be entitled to encroach on the said land of passage (Point "O" to "P"). The learned court below will ensure that if any construction of pillar/s etc. The learned court below will ensure that if any construction of pillar/s etc. is raised by the defendants/judgment debtors, Ratan Singh and his wife Smt. Sayar Kanwar, on the said passage/way in front of said stone gate, which is marked as "O" to "P" in the said Map (Ex.1), the same is to be removed by them within fifteen days from today, and if they do not remove, then the same be removed through Sale Amin/Municipal authorities at the cost of petitioners, and a report of the same supported by the latest photographs of the site in question with such removal of encroachment be also sent/reported to this Court." 4. After disposal of the revision petition, in the execution proceedings, the petitioners filed yet another application under Section 151 CPC which was dismissed by the learned Executing Court by its order dated 24.07.2015. Yet another application was laid on behalf of the petitioners under Section 151 CPC for permitting them some time so as to avail the remedy against the order dated 24.07.2015 before this Court but the said request of the petitioners judgment-debtors was also declined by the learned Executing Court. While declining the prayer of the petitioners, the learned Executing Court on 07.08.2015 issued necessary orders to Municipal Council, Phalodi for removal of offending encroachment at the point 'O' to 'P'. It appears that there was some dispute about the jurisdiction of the Municipal Council and that being so, execution of the decree was not carried out. The Municipal Council opined that the land in question is situated within the area of Gram Panchayat, Khichan. Be that as it may, being party to the litigation, the learned Executing Court reiterated its earlier order by the order impugned against the Municipal Council, Phalodi. 5. Learned counsel for the petitioners submits that in view of dispute about the jurisdiction of Municipal Council, Phalodi, the order impugned cannot be sustained. Learned counsel further submits that in compliance of the decree passed by the court, execution can be made only to the extent of the offending encroachment and in the guise of removal of encroachment, the petitioners' possession cannot be disturbed from their pattasud land. 6. Learned counsel further submits that in compliance of the decree passed by the court, execution can be made only to the extent of the offending encroachment and in the guise of removal of encroachment, the petitioners' possession cannot be disturbed from their pattasud land. 6. Per contra, learned counsel for the respondents submits that the requisite directions have been issued by the learned Executing Court in adherence to the orders passed by this Court while disposing of S.B.Civil Revision Petition No.122/2012 and, therefore, no interference with the impugned order is warranted. Learned counsel further submits that a decree which was passed in favour of the respondents-plaintiffs has attained finality inasmuch as the same has been affirmed right up to Hon'ble Apex Court and, therefore, every attempt by the petitioners to thwart execution of the decree cannot be countenanced. Lastly, learned counsel for the respondents-plaintiffs submits that the petitioners are unnecessarily litigating in the matter and this petition is also a glaring example of abuse of process of law and, therefore, it is liable to be thrown away with exemplary costs. 7. Having heard learned counsel for the parties, in my opinion, the learned Executing Court has not committed any illegality or material irregularity in exercise of its jurisdiction for execution of a decree which has attained finality and binding between the parties. There remains no quarrel that the decree passed by the learned Trial Court and affirmed right up to Hon'ble Apex Court is confined to offending part of encroachment i.e. from point 'O' to 'P' of Ex.1 and, therefore, the petitioners cannot have any valid grievance to obstruct execution of the said decree. The so-called apprehension of the petitioners that while executing the decree, their possession on pattasud land is likely to be disturbed is wholly unfounded. From order dated 07.08.2015 passed by the Executing Court, it is amply clear that learned Executing Court is making endeavour to execute the decree in compliance of the observations made by this Court while deciding the revision petition. While deciding the revision petition, this Court has clarified that encroachment is liable to be removed from the passage/way in front of the stone gate which is marked as O to P in the map (Ex.1) and further 15 days' time is also prescribed for the same. While deciding the revision petition, this Court has clarified that encroachment is liable to be removed from the passage/way in front of the stone gate which is marked as O to P in the map (Ex.1) and further 15 days' time is also prescribed for the same. In this view of the matter, I am unable to find any perversity or infirmity in the impugned order passed by the learned Executing Court which is in consonance and in conformity with the directions passed by this Court while deciding revision petition. 8. Litigation at the behest of the petitioners to create hindrance in execution of a binding decree is per se an attempt to abuse the process of law which cannot be appreciated by this Court. It is really strange that the petitioners have approached this Court second time to thwart execution of a decree which has attained finality without any justifiable reason. Jurisdiction under Article 227 of the Constitution of India is not akin to appellate jurisdiction and the same is required to be exercised with great care and circumspection. Hon'ble Apex Court in Shalini Shyam Shetty & Another v. Rajendra Shankar Patil: (2010) 8 SCC 329 has observed while issuing a word of caution that jurisdiction under Article 227 of the Constitution is to be exercised in exceptional circumstances and not in a routine manner. In the matter of execution proceedings, the Court has held that such jurisdiction is to be exercised very sparingly where there is sufficient material on record to show that if interference is not made, it would result in miscarriage of justice. In the instant case, I am unable to find any iota of proof that execution of a binding decree would cause failure of justice. A litigant who has lost legal battle right upto Hon'ble Apex Court cannot be allowed to circumvent execution of a decree at its whims and fancy by abusing the process of the court. 9. Resultantly, I am not inclined to interfere in the matter and consequently the petition fails and the same is hereby dismissed.Writ Petition Dismissed. *******