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2016 DIGILAW 2105 (HP)

Kashmir Singh v. Om Parkash

2016-09-30

P.S.RANA

body2016
ORDER : P.S. Rana, J. 1. Present civil revision petition is filed under Section 115 Code of Civil Procedure 1908 against the order dated 14.03.2014 passed by learned executing Court Civil Judge (Jr. Division) Baijnath Camp at Palampur Distt. Kangra (H.P.) in CMA No. 98/2009 whereby application for execution of decree filed under Order XXI Rule 32 CPC by the revisionist is dismissed. Brief facts of the case: 2. Sh. Kashmir Singh revisionist filed execution application for decree under Order XXI Rule 32 CPC pleaded therein that C.S. No.166/2003 was filed and same was decided by learned Civil Judge (Jr. Division) Baijnath Camp at Palampur Distt. Kangra (H.P.) on 22.04.2006. It is pleaded that non-revisionist was restrained by way of permanent prohibitory injunction from interfering, taking forcible possession, digging, raising structure or interfering in any manner over suit land comprised in khata No.94 min khatoni No.254 khasra Nos.1013 and 1014 measuring 0-00-77 hects. situated at Mohal and Mauza Salan Tehsil Palampur Distt. Kangra (H.P.). It is pleaded that on 13.01.2009 judgment debtor forcibly cut and remove bamboo trees from bamboo bushes. It is further pleaded that non-revisionist also did not allow the revisionist to cut the bamboo fodder from the suit land. It is further pleaded that on 10.03.2009 judgment debtor also blocked the passage through which decree holder used to go to his land. It is further pleaded that judgment debtor was requested to honour the decree and not to disobey the judgment and decree passed by learned Trial Court but judgment debtor did not accept the request of decree holder. Prayer for initiating proceedings under Order XXI Rule 32 CPC sought and prayer that judgment debtor be detained in civil prison for a period of three months and his property be attached for his willful and intentional act of disobedience also sought. 3. Per contra response filed on behalf of judgment debtor pleaded therein that decree holder has no cause of action. It is further pleaded that present application is filed just to harass the judgment debtor illegally. It is further pleaded that judgment debtor did not cut bamboo trees from bamboo bushes on 13.01.2009. It is also denied that judgment debtor did not allow the decree holder to cut bamboo fodder from the suit land. It is also denied that judgment debtor has blocked the passage. It is further pleaded that judgment debtor did not cut bamboo trees from bamboo bushes on 13.01.2009. It is also denied that judgment debtor did not allow the decree holder to cut bamboo fodder from the suit land. It is also denied that judgment debtor has blocked the passage. Prayer for dismissal of application filed under Order XXI Rule 32 CPC sought. Decree holder filed rejoinder and reasserted the allegations mentioned in the petition. 4. On dated 05.12.2009 learned executing Court framed following issues: (1) Whether JD has violated the judgment and decree dated 22.04.2006 as alleged? OPA. (2) Whether applicant-DH has no cause of action against JD? OPR. (3) Relief. 5. Learned executing Court decided issue No.1 in negative and decided issue No.2 in affirmative. Learned executing Court dismissed the application filed under Order XXI Rule 32 CPC. Feeling aggrieved against the order decree holder filed present civil revision petition. 6. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionist and Court also perused the entire record carefully. 7. Following points arise for determination: (1) Whether civil revision petition filed under Section 115 Code of Civil Procedure 1908 is liable to be accepted as mentioned in memorandum of grounds of revision petition? (2) Final order. Findings upon Point No.1 with reasons: 8. AW-1 Sh. Kashmir Singh has stated that he filed civil suit which was decreed in the year 2006. He has stated that judgment debtor was directed not to interfere in the suit property in any manner. He has stated that after passing of judgment and decree judgment debtor interfered in the suit property. He has stated that on dated 13.01.2009 judgment debtor cut 4/5 bamboo trees. He has stated that judgment debtor also blocked the path. He has stated that thereafter he reported the matter in panchayat. He has stated that panchayat told him that decree already passed by the civil Court and he was directed to approach the civil Court. He has stated that he also filed criminal complaint before the police authority. In cross-examination he has stated that abadi is joint inter se parties. He has stated that bamboo trees cut from khasra Nos. 1013 & 1014. He has stated that land is joint and is in his possession since his ancestors. 9. AW-2 Sh. He has stated that he also filed criminal complaint before the police authority. In cross-examination he has stated that abadi is joint inter se parties. He has stated that bamboo trees cut from khasra Nos. 1013 & 1014. He has stated that land is joint and is in his possession since his ancestors. 9. AW-2 Sh. Gurdev has stated that parties are known to him and he has also seen the disputed land. He has stated that at the spot he saw that bamboo trees were fallen. He has stated that parties were also fighting with each other. 10. RW-1 Sh. Om Parkash has stated that he was not in his house w.e.f. 12.01.2009 to 14.01.2009. He has stated that he is posted in security duty in Jia H.P. Baner Power House. He has stated that he does not know that decree was passed against him. He has denied suggestion that he has disobeyed the decree in any manner. He has denied suggestion that on 13.01.2009 he cut bamboo trees. He has denied suggestion that personal path of decree holder is situated in khasra Nos. 1013 & 1014. He has denied suggestion that on 10.03.2009 he blocked the path. He has denied suggestion that he is harassing the judgment debtor after passing of decree. 11. RW-2 Sh. Bongar Ram has stated that both parties are known to him. He has stated that land is joint inter se parties. He has stated that no one is using bamboo trees. He has stated that on 13.01.2009 a bamboo tree was fallen upon path and same was lifted by Sh. Kashmir Singh decree holder. He has stated that no quarrel took place. He has stated that decree holder himself took the bamboo trees in his presence to his residential house. 12. RW-3 Sh. Bakshi Rana has stated that he is posted in H.P. State Electricity Project Baner as Supervisor since December 2009. He has stated that judgment debtor is also posted as armed guard. He has stated that w.e.f. 13.01.2009 to 15.01.2009 judgment debtor was on his continuous duty as armed guard in the project. 13. Following documents filed by parties. (1) Ext.A1 & A2 are copies of judgment and decree dated 22.04.2006 passed in C.S. No.166 of 2003. He has stated that judgment debtor is also posted as armed guard. He has stated that w.e.f. 13.01.2009 to 15.01.2009 judgment debtor was on his continuous duty as armed guard in the project. 13. Following documents filed by parties. (1) Ext.A1 & A2 are copies of judgment and decree dated 22.04.2006 passed in C.S. No.166 of 2003. (2) Ext.A3 is copy of complaint filed by Om Parkash against Kashmir Singh and others under sections 323, 500, 506, 452 IPC before Judicial Magistrate Palampur (H.P.). (3) Ext.A4 is copy of statement of Om Parkash (4) Ext.A5 is notice issued by panchayat to Om Parkash (5) Ext.R1 & R2 are Aks Sajra. 14. Submission of learned Advocate appearing on behalf of revisionist that judgment debtor has intentionally and willfully disobeyed the judgment and decree passed by learned Trial Court in C.S. No. 166/2003 title Kashmir Singh Vs. Om Parkash decided on 22.04.2006 is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that on dated 22.04.2006 learned Trial Court passed decree of permanent prohibitory injunction against judgment debtor restraining judgment debtor from interfering, taking forcible possession, digging, raising structure or interfering in any manner in the suit land comprised in khata No.94 min khatoni No.254 khasra Nos.1013 and 1014 land measuring 0-00-77 hects. situated at Mohal and Mauza Salan Tehsil Palampur Distt. Kangra (H.P.). Onus to prove that judgment debtor has intentionally and voluntarily disobeyed the decree is upon the decree holder. Decree holder has examined AW-2 Sh. Gurdev as eye witness. Court has carefully perused the testimony of AW-2 Sh. Gurdev. AW-2 Sh. Gurdev has simply stated that he saw that bamboo trees were fallen on the ground and both parties were quarrelling with each other. AW-2 did not state that judgment debtor has cut and removed bamboo trees on 13.01.2009 from suit land. AW-2 Sh. Gurdev has not stated that judgment debtor has blocked the passage of decree holder. Testimony of AW-1 is not corroborated by AW-2 independent witness. Testimony of AW-1 is rebutted by RW-1 Sh. Om Parkash, RW-2 Sh. Bongar Ram and RW-3 Sh. Bakshi Rana. RW-2 Sh. Bongar Ram has specifically stated that bamboo trees were fallen upon the ground and decree holder lifted the same. RW-3 Sh. Bakshi Rana has stated in positive manner that judgment debtor was on armed duty w.e.f. 13.01.2009 to 15.01.2009. Testimony of AW-1 is rebutted by RW-1 Sh. Om Parkash, RW-2 Sh. Bongar Ram and RW-3 Sh. Bakshi Rana. RW-2 Sh. Bongar Ram has specifically stated that bamboo trees were fallen upon the ground and decree holder lifted the same. RW-3 Sh. Bakshi Rana has stated in positive manner that judgment debtor was on armed duty w.e.f. 13.01.2009 to 15.01.2009. RW-1, RW-2 & RW-3 rebutted the testimony of AW-1. 15. It is well settled law that proceedings under Order XXI Rule 32 CPC are punitive proceedings and in order to punish judgment debtor positive cogent and reliable evidence is required. In the present case there is no positive cogent and reliable evidence on record in order to prove that judgment debtor has intentionally and voluntarily disobeyed the decree passed by learned Trial Court. See AIR 1965 All 44 title Ram Autar Vs. Kaushal Kishore. 16. In revisional jurisdiction under section 115 Code of Civil Procedure 1908 High Court cannot re-appreciate the evidence. Under section 115 Code of Civil Procedure 1908 High Court is empowered to interfere with the findings of facts only if the findings of facts are perverse. See AIR 1991 Apex Court page 455 title Masjid Kacha Tank Nahan Vs. Tuffail Mohammed. See AIR 2002 Apex Court page 1004 title Gurdial Singh Vs. Raj Kumar Aneja. See AIR 1995 Apex Court page 1357 title P. Udayani Devi Vs. V.V. Rajeshwara Prasad Rao. See AIR 1969 Apex Court page 580 title Indore Municipality Vs. K.N. Palsikar. In view of above stated facts it is held that order of learned executing Court is not illegal nor perverse. Point No.1 is answered in negative. Point No.2 (Final Order). 17. In view of findings upon point No.1 above present civil revision petition is dismissed. Order of learned executing Court is affirmed. Parties are left to bear their own costs. File of learned executing Court along with certified copy of the order be sent back forthwith. C.R. No. 45/2014 is disposed of. Pending applications if any also disposed of.