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2016 DIGILAW 1807 (HP)

Amar Chand v. Shankar Verma

2016-08-29

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present Civil Revision under Section 115 of the Civil Procedure Code is maintained by the petitioners to quash and set aside the impugned order dated 22.11.2011, passed by learned Civil Judge (Junior Division), Court No. VI, Shimla, H.P, in Execution Petition No. 7-10 of 2011, wherein the learned Court below has held as under : “I have heard, ld. counsel for both the parties and perused the record with minute care. JD has taken a plea that decree is not executable in the absence of proper demarcation as DH has failed to identify the disputed land. It is also the plea of JD that road has already stands construction on Khasra No. 223, therefore, there is no question of removing iron bars from above said Khasra No. JD is ready to comply with the decree after the demarcation of land from some revenue officials as both the parties are unable to identify the disputed land. In my opinion if both the parties are unable to identify the disputed land, it is good suggestion to appoint revenue officials that demarcation of land of DH and JD. Decree cannot be executed without identification of land. Actual position cannot be ascertained by the perusal of decree as decree has been passed after going through the relevant record on file there is no demarcation report on the file also therefore, adverse inference was drawn against the JD, while passing decree dated 18.9.2009 to ascertain the factual position, it is necessary to appoint some revenue officials so that the parties may have clear idea of their possession of land. Execution petition is hereby allowed and objections dismissed, subject to the appointment of some revenue officials to identify the land of both the parties on spot. Naib Tehsildar, Rural is appointed as local commissioner to execute decree dated 18.9.2009. His fee is assessed at Rs.1000/- which will be borne by DH. Execution petition is accordingly disposed of. Report there of be called on 29.12.2011.” 2. As per the petitioner, the judgment and decree passed by the learned trial Court, which was upheld by the learned lower Appellate Court. His fee is assessed at Rs.1000/- which will be borne by DH. Execution petition is accordingly disposed of. Report there of be called on 29.12.2011.” 2. As per the petitioner, the judgment and decree passed by the learned trial Court, which was upheld by the learned lower Appellate Court. No Regular Second Appeal was filed and the judgment and decree passed by learned Additional District Judge, Fast Track Court, Shimla, holding that the respondents were restrained by way of Permanent Prohibitory Injunction from interfering in the land of the plaintiffs comprised in Khewat No. 27 min/45 Khatauni No. 88/85 Khasra No. 223, measuring 384/40 square meter situated at Up-Mohal Chalaunthi, Patwar Circle Sanjauli, Tehsil Shimla Urban, District Shimla, H.P, has attained finality. The respondents were also restrained by way of Permanent Prohibitory Injunction from obstructing public passage comprising Khatauni No. 119/116, Khasra No. 224, measuring 182-91 square meters situated at Up-Mohal Chalaunthi, Patwar Circle Sanjauli, Tehsil Shimla Urban, District Shimla. The respondents were also directed to remove the iron bars/angle iron temporarily placed by him on Khasra No. 223 from his (respondent’s) lintel. 3. The judgment and decree passed by learned Civil Judge (Junior Division) Court No. VI, Shimla, was affirmed by the judgment of Addl. District Judge, Fast Track Court, Shimla, on 27.4.2011 and no further appeal was preferred by the respondents. 4. It is further averred that in order to enforce the decree the petitioner has preferred execution petition before the learned trial Court. The respondent has filed reply/objections to the execution petition. The executing Court vide its order dated 22.11.2011 passed in Execution Petition No. 7-10 of 2011, has allowed the petition and dismissed the objection filed by Judgment debtor subject to the rider that revenue official is to be appointed for demarcating the land in question and the learned Court below appointed the Naib Tehsildar (Rural), as Local Commissioner to identify the land of both the parties on the spot and his fee has been assessed at Rs.1000/- which will be born by the petitioner. 5. I have heard learned counsel appearing on behalf of the parties and have also gone through the entire record in detail. 6. 5. I have heard learned counsel appearing on behalf of the parties and have also gone through the entire record in detail. 6. Learned counsel appearing on behalf of the petitioners has argued that the learned Court below could not go behind the decree while executing the decree and only the operative part of the judgment and decree is required to be executed. 7. On the other hand, learned counsel appearing on behalf of the respondent has vehemently argued that the decree is not executable without proper demarcation of the land so, the impugned order passed by learned Court below is just and reasoned. 8. In rebuttal, learned counsel appearing on behalf of the petitioners has argued that the impugned order passed by the learned Court below are otherwise also against the law. 9. From the perusal of record, it is revealed that the learned trial Court while disposing of Civil Suit has framed as many as ten issues. Issue No.3 reads as under : “Issue No.3 Whether this Court is not competent nor maintainable for want of proper description and identification and there is no effective decree can be passed, therefore, liable to be dismissed as alleged ? OPD. The learned Court below while deciding Issue No.3, has held as under : “It is urged during the course of arguments by learned counsel for the defendant that the suit is liable to be dismissed for want of proper description and identification of the suit land, in absence of which no executable decree can be passed. In my considered opinion, there is no uncertainty about the suit land on the spot. It has been observed hereinabove that some portion of Khasra No. 223 is still in ownership and possession of the plaintiff over which the defendant has no right, title or interest. Further more the defendant himself has admitted that he has extended angle iron over the shed of the plaintiffs which exists on Khasra No. 223, therefore, it cannot be said that there is no proper description and identification of the suit land. Therefore, this issue is decided against the defendant.” In appeal the learned lower Appellate Court has observed as under: “Although, the plaintiffs have alleged in the plaint that their one room set was over this land in Khasra No. 223, but it appears that it was in the shape of Dhara. Therefore, this issue is decided against the defendant.” In appeal the learned lower Appellate Court has observed as under: “Although, the plaintiffs have alleged in the plaint that their one room set was over this land in Khasra No. 223, but it appears that it was in the shape of Dhara. It is not in dispute that this Dhara is over this land. The statements of witnesses even of the defendant, clearly show that this Dhara was/is in between the road (Khasra No. 223/1) and path (Khasra No.224). For instance, PW-3, Smt. Anita Thakur, has stated about it in cross-examination and admitted by DW-1 Shri Surat Ram and even by DW-2 Shri Shankar Lal. He has admitted the photograph Ex.DW2/A. So there is no dispute regarding identification of the land and the findings of the learned trial Court are correct on this point.” 10. From the above, it is clear that the suit land was identifiable and there was no question with regard to the identity of the suit land. Therefore, the impugned order passed by the learned Court below by whom the demarcation is ordered is without any basis. In Sarup Singh and another vs. Union of India and another, (2011) 11 SCC 198 , wherein Hon’ble Apex Court has held as under : “20. Insofar as the second issue is concerned, it is true that the executing court cannot go behind the decree and grant interest not granted in the decree as submitted by the counsel appearing for the appellants in the light of the decision rendered by this Court in State of Punjab vs. Krishan Dayal Sharma. But, if a decree is found to be a nullity, the same could be challenged and interfered with at any subsequent stage, say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular court lacks inherent jurisdiction in passing a decree or an making an order, a decree or an order passed by such Court would be without jurisdiction and the same is non est and void ab initio. 11. Hon’ble Apex Court in State of Punjab and others vs. Krishan Dayal Sharma, (2011) 11 SCC 212, has held as under : “The right of the decree-holder to obtain relief is determined in accordance with the terms of the decree. 11. Hon’ble Apex Court in State of Punjab and others vs. Krishan Dayal Sharma, (2011) 11 SCC 212, has held as under : “The right of the decree-holder to obtain relief is determined in accordance with the terms of the decree. The executing court has referred to a number of decisions where interest had been granted on the arrears of salary and pension. The executing court failed to appreciate that in those decisions direction for payment of interest had been issued by the court while granting relief for reinstatement or payment of arrears of salary or pension. None of those decisions relate to the grant of interest by the executing court. No doubt the courts have power to award interest on the arrears of salary or pension or other amounts to which a government servant is found entitled having regard to the facts and circumstances of the case but that power cannot be exercised by the executing court in the absence of any direction in the decree.” 12. The net result of the above discussion is that the impugned order passed by the learned Court below directing the Revenue Official to identify the land of both the parties on the spot being contrary to the law and decree, since the land was identifiable, as per the judgment and decree passed by the learned Court below which was upheld by the learned Addl. District Judge, Fast Track Court, Shimla and the only option of the learned Court below was to execute the decree. Accordingly, the revision petition is allowed and the impugned order dated 22.11.2011 passed by learned Court below is quashed and set aside. The parties are again referred to executing Court for execution of the decree, in letter and spirit. Parties are directed to appear before the learned executing Court on 19th September, 2016. However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending applications, if any stands disposed of.