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2019 DIGILAW 265 (HP)

Ram Singh v. Sanjay Mukherjee

2019-03-14

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, petitioners have challenged order dated 22.6.2016, Annexure P-4, passed by the Court of learned Civil Judge (Sr. Div.) Lahaul-Spiti at Kullu, vide which an application filed under Order 21 Rule 26 of the CPC by present petitioners/judgment debtors for staying the execution petition stands dismissed by learned Executing Court. It is not in dispute that a suit filed for possession, permanent prohibitory injunction and mesne profit by present respondents against the petitioners i.e., Civil Suiit No. 67/12/1996 stood decreed in their favour by the Court of learned Civil Judge (Sr. Division) Lahaul-Spiti at Kullu vide judgment and decree dated 4.7.2012. It is also a matter of record that the appeal preferred by present petitioners against the said judgment and decree stood dismissed except for mesne profits and the judgment and decree passed by learned lower Court has attained finality with only modification qua grant of mesne profits. 2. Learned counsel for the petitioners has argued that the impugned order is not sustainable in the eyes of law, as the learned Executing Court has erroneously dismissed the application filed by petitioners without appreciating that as the judgment and decree was not clear where the suit land was situated and which portion was to be handed over to the applicants, therefore, the same is not executable. He has further argued that the learned Executing Court has not taken into consideration the fact that respondent/decree holder being non-Himachali could otherwise not have had purchased any agricultural land in the State of Himachal Pradesh in violation of the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act. 3. I have heard learned counsel for the parties and have also gone through the record of the case as well as the impugned order. 4. A perusal of the impugned order demonstrates that both these points which have been urged by learned counsel for the petitioners were not only considered but also answered by learned Executing Court. In para 7 thereof, learned Executing Court has held that perusal of the judgment and decree reveals that decree of possession was for land measuring 18 biswas as reflected in demarcation report Ext. PW3/A and Tatima Ext. In para 7 thereof, learned Executing Court has held that perusal of the judgment and decree reveals that decree of possession was for land measuring 18 biswas as reflected in demarcation report Ext. PW3/A and Tatima Ext. PW3/F denoted by Khasra No. 3654/1 situated at Phati Sosan Kothi Kanawar Tehsil and District Kullu, H.P. Learned Executing Court has held that the suit land, possession whereof is sought, therefore, stands clearly described/depicted in the judgment and that being so it could not be said that the suit land was not identifiable. With regard to the second submission made by learned counsel for the petitioners, the same has also been answered by learned Executing Court by holding that this issue was urged by present petitioners before the learned appellate Court and it stood decided against the petitioners by learned appellate Court and judgment debtors could not rake up this issue again and again. 5. In order to satisfy as to whether these findings are borne out from the record, this Court with the assistance of learned counsel for the parties went through the record of the case. A perusal of the decree passed in favour of the plaintiffs and to the extent upheld by learned appellate Court demonstrates that decree for possession granted in favour of decree holder was for land measuring 18 biswas as shown in demarcation report Ext. PW3/A and Tatima Ext. PW3/F denoted by Khasra No. 3654/1 situated at Phati Sosan Kothi Kanawar Tehsil and District Kullu, H.P. This clearly proves that there is no ambiguity with regard to description of land for which decree has been passed in favour of decree holder. The land is clearly described and depicted in the decree and therefore, it cannot be said that the decree is un-executable. As far as the objection of the decree being un-executable on the ground that the decree holder could not purchase agricultural land as they were non-agriculturists is concerned, it has been held by learned Courts below that no evidence has been produced by defendants/judgment debtors and the bald statements of the defendants were not sufficient to prove the aforesaid allegations. Even today, learned counsel for the petitioners could not bring to the notice of this Court any evidence which was led before the learned Courts below by the petitioners to substantiate the said allegation. Even today, learned counsel for the petitioners could not bring to the notice of this Court any evidence which was led before the learned Courts below by the petitioners to substantiate the said allegation. That being so, in my considered view, there is no merit in the contention of learned counsel for the petitioners that the impugned order is perverse and not sustainable in law, as the findings returned in the impugned order are duly borne out from the record of the case and otherwise also learned Executing Court cannot go behind the decree. Thus as there is no perversity, illegality or jurisdictional error with the impugned order, the present petition is, therefore, dismissed being devoid of any merit.