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2016 DIGILAW 2684 (HP)

JAGAT RAM v. DEVINDER SINGH

2016-12-19

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. 1. Instant Civil revision petition filed under Section 115 of the Code of Civil Procedure, is directed against the order dated 1.12.2007, passed by learned Civil Judge (Senior Division) Solan, H.P., in application No.38/10 of 2011, whereby application under Order 21, Rule 32 CPC, filed by the Decree Holder-petitioner has been dismissed. 2. Briefly stated facts, as emerged from the record are that by way of aforesaid application filed under Order 21, Rule 32 CPC, petitioner-Decree Holder prayed that the respondents-Judgment debtors be punished and kept in Civil imprisonment for non compliance of judgment and decree dated 31.5.1983, passed by learned Senior Sub Judge, Solan in case No.80/1 of 1978 titled as Jagat Ram v. Ram Rattan & others. Petitioner-DH further prayed that respondents-JD may be directed to remove the encroachment made by them in the suit land at their costs and cost of the trees illegally cut and removed by them also be ordered to be realized from them and appropriate compensation may kindly be paid to the petitioner-DH. 3. In nutshell, the case of the petitioner is that plaintiff-DH Jagat Ram filed suit for permanent prohibitory injunction restraining the defendants-JDs from interfering in the land of the plaintiff comprised in khata No.5/5, khasra Nos. 9, 8, 13, 19, 73/20, 21/29, 30, 76/34, 37, 44, 79/52, 38/2, 55, 57, 61, 83/65, 70 and khata No.6/6, khasra Nos.12, 49, 51, 82/65, 68, 69/2, 74/34, kita 23 and for possession of land measuring 14 biswansi in khasra No.38 and 1 biswa 14 biswansi in khasra No.69 as per "Nakshatawafat" and demarcation report dated 24.3.1978 by way of mandatory injunction for removing the retaining wall raised by defendant No.1 illegally, without any right title or interests, situated at village Kundla as per jamabandi for the year 1976-77 and also for recovery of Rs. 500/- as damages. 4. Aforesaid suit having been filed by the plaintiff/DH was partly decreed and plaintiff was declared owner in possession of the suit land comprised in khata No.5/5,khasra Nos. 9, 8, 13, 19, 73/20, 21/29, 30, 76/34, 37, 44, 79/52, 28/2, 55, 57, 61, 83/65, 70 and khata No.6/6, khasra Nos.51, 82/65, 68, 69/2, 75/34,kitas 23, situated at village Kundla, Tehsil and District Solan, H.P and accordingly defendants were restrained from interfering in the aforesaid land in any manner. 9, 8, 13, 19, 73/20, 21/29, 30, 76/34, 37, 44, 79/52, 28/2, 55, 57, 61, 83/65, 70 and khata No.6/6, khasra Nos.51, 82/65, 68, 69/2, 75/34,kitas 23, situated at village Kundla, Tehsil and District Solan, H.P and accordingly defendants were restrained from interfering in the aforesaid land in any manner. However, perusal of judgment and decree dated 31.5.1983, suggests that plaintiff was not held to be in possession of khasra No.12 and 49 and accordingly, no injunction was granted qua this portion of land. 5. Appellant/plaintiff being aggrieved with the aforesaid judgment dated 31.5.1983, passed by learned Senior Sub Judge, Solan, H.P., filed an appeal under Section 96 CPC before the learned District Judge, Solan H.P., which came to be registered as Civil Appeal No.52-S/13 of 1983. Learned District Judge vide judgment and decree dated 19.8.1985, partly accepted the appeal and modified the judgment and decree passed by the learned trial Court to the effect that plaintiff was also held entitled for khasra No. 49 along with other khasra numbers save and except khasra No.12, which was found to be in occupation of defendant No.2 as tenant. Accordingly, suit for khasra No.12 having been filed by the appellant plaintiff was dismissed. 6. In the aforesaid background, plaintiff-DH filed an application under Order 21, Rule 32 CPC, stating therein that despite his repeated requests to defendants/JDs to respect the judgment and decree passed by the Court, defendants-JDs have interfered in the ownership and possession of the plaintiff-DH, despite there being decree having been passed by the learned Court below in his favour. 7. Plaintiff-DH averred in the application that defendant No.1 in connivance with defendants No. 2 to 5 have illegally encroached upon the land in khasra No. 37/1, measuring 2 biswas, respondent No.2, Sunder Singh has constructed the house in the land comprising khasra No.69/1, measuring 1 biswa, whereas respondent Debu @ Devinder Singh has encroached upon the land comprising in khasra No.381/1, measuring 1 biswa. Plaintiff-DH further alleged that respondents-JDs also removed trees from khasra No.37/1, 69/1 besides khasra No.38/1 along with other respondents. Plaintiff-DH specifically averred in the application that respondents No.4 and 5 are also cutting the trees from the suit land and respondents No.6 and 7 have encroached upon 9 biswas of land in khasra No.69/3. As per plaintiff-DH, he also filed complaint against the defendants-JDs before the police vide FIR No.195/2000, dated 8.10.2000. Plaintiff-DH specifically averred in the application that respondents No.4 and 5 are also cutting the trees from the suit land and respondents No.6 and 7 have encroached upon 9 biswas of land in khasra No.69/3. As per plaintiff-DH, he also filed complaint against the defendants-JDs before the police vide FIR No.195/2000, dated 8.10.2000. Plaintiff-DH further averred in the application that police got demarcation from the Tehsildar. Plaintiff/DH specifically mentioned in the application that defendants-JDs have cut and removed 12 trees worth Rs. 30,000/- and caused damage to the suit land and as such, he was compelled to file the present petition. 8. Defendants-JDs by way of reply, refuted the aforesaid contention having been made by the plaintiff-DH in the aforesaid application. Defendants-JDs specifically raised the objection regarding maintainability and mis-joinder of parties and stated that there was no decree, whatsoever, against defendants No. 2 to 5 and as such, present application is not maintainable against them. Though, defendants admitted passing of previous judgment and decree but denied that they have disobeyed the judgment and decree. Defendants-JDs denied that these defendants have encroached upon any portion of the suit land. Similarly, defendants-JDs denied that they have cut approximately 12 trees valued at Rs.30,000/-. 9. Plaintiff-DH in order to prove its case, examined PW-1, Satya Pal, Incharge G.R.R., who made available the record of demarcation in case titled Jagat Ram v. Deep Chand. PW-2, Subhash Saklani, Tehsildar, who demarcated the land of plaintiff-DH. PW-3, is Durga Dutt, Patwari (retired), who helped PW-2 in demarcation of the suit land. PW-4, Lekh Ram Kanungo, who exhibited memo Ex.P-10. PW-5 is Jagat Ram, PW- 6 is Shyam Lal and PW-7 is Kamal. 10. By way of application, plaintiff-DH alleged that defendant-JD Sunder Singh has encroached upon khasra No.38/1, 69/1 and JD Deep Ram has encroached upon khasra No.69/34. But careful perusal of the judgment and decree granted by the learned trial Court in favour of the plaintiff-DH, clearly suggests that decree was granted only qua khasra Nos.38/2 and 69/2 and there is no mention regarding khasra No.38/1,69/1 and 69/3 as stated in the execution petition. But careful perusal of the judgment and decree granted by the learned trial Court in favour of the plaintiff-DH, clearly suggests that decree was granted only qua khasra Nos.38/2 and 69/2 and there is no mention regarding khasra No.38/1,69/1 and 69/3 as stated in the execution petition. Similarly, there appears to be substantial force in the reply having been filed the defendants-JDs that there was no specific decree, if any, against defendants No.2 to 5 and as such, learned trial Court has rightly concluded that the petition is not maintainable against defendants No. 2 to 5 and as such, was rightly dismissed. 11. Most importantly in this case, plaintiff-DH with a view to prove its case heavily relied upon the demarcation report Ex.P-4, filed by PW-2, Subhash Saklani. PW-2, in his report EX.P-4, has stated that extract of Musabi did not show all the numbers required in assisting to arrive at a conclusion and as such, help of "momi" was taken. Demarcation report also suggests that "three points undisturbed", on different sides of any of khasra number in dispute could not be detected at the time of carrying out the demarcation. In his statement, PW-2 specifically admitted that before carrying out the demarcation, he did not fix the three points as these were not available. He himself stated that since Musabi was not available, he took help of "Momi." 12. Bare perusal of statement of PW-2 as well as demarcation report Ex.P-4, clearly suggest that demarcation was not carried out in terms of the instructions of Financial Commissioner as contained in H.P. Land Records Manual, Chapter 10, para 10.2. It is well settled that as per aforesaid instructions, it is incumbent upon the revenue officer before carrying out demarcation to find three fixed points on different sides of the place in dispute and If parties to dispute do not agree to the pucca points, in that situation, revenue officer to find such points himself with the help of map. In the present case, as has been observed, PW-2, Subhash Saklani, Tehsildar, nowhere followed the instructions of Financial Commissioner, as contained in H.P. Land Records Manual and as such, same could not be placed any reliance. In the present case, as has been observed, PW-2, Subhash Saklani, Tehsildar, nowhere followed the instructions of Financial Commissioner, as contained in H.P. Land Records Manual and as such, same could not be placed any reliance. Interestingly, in the present case, suit having been filed by the plaintiff-DH was decreed on 31st May, 1983 and thereafter appeal having been filed by him was also partly accepted on 19.8.1985, but in the instant case, application of execution was filed in the year, 2001 i.e. after 16 years and there is no mention, if any, with regard to dates, if any, on which defendants-JDs allegedly made an attempt to interfere with the peaceful possession of the plaintiff-DH. There is no date, when alleged disobedience was caused by the defendants. Similarly, this Court was unable to find any explanation, worth the name, with regard to delay, if any, in maintaining the execution petition after passing of the judgments and decree dated 31.5.1983 and 19.8.1985 because there is nothing in the pleadings, from where it can be inferred that whether alleged interference was prior to filing of the suit or after decree of the suit. 13. Moreover, as has been observed in the execution petition, plaintiff-DH has alleged that defendants-JD have encroached upon khasra No.38/1, 69/1 and 69/3, whereas bare perusal of the judgment and decree passed by the Courts below, clearly suggest that decree is granted only qua khasra No.49 and not regarding khasra No.38/1,69/1, 69/3 and as such, this Court sees no illegality and infirmity in the impugned order having been passed by learned Civil Judge(Senior Division) Solan, rather same are based upon the correct appreciation of the evidence led on record by the respective parties. 14. The present petition is dismissed, so also pending application(s), if any.