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2019 DIGILAW 826 (HP)

Karam Singh v. Tek Chand

2019-07-01

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. 1. The dismissal of the JDs objection, against the execution, of a binding and conclusive decree, of permanent prohibitory injunction, where-through the plaintiffs' suit for restraining the, JDs, from causing any obstruction, upon, suit khasra Nos. 1562/5, 1562/13, and khasra No. 1567/2, as depicted in tatima, borne in Ext. PW1/A, stood decreed, hence constrains them, to institute the instant petition, before this Court. 2. The learned counsel, for aggrieved JDs, contends with much vigor, before this Court (a) that since the execution petition, embodied in Annexure P-7, makes a disclosure, qua the purported obstruction, of, the suit path, rather occurring on 10.3.2013, comprised in erection of stones, by the JDs thereon, (b) when also the learned first appellate Court, upon, a, first appeal being reared there-before by the plaintiffs, against the afore judgment and decree, rendered, by the learned Civil Judge (Senior Division) in Civil Suit No. 89 of 2004, (c) wherein they espoused, vis-a-vis, rendition of decree of mandatory injunction, for, removal by the JDs of the afore obstruction, made upon, the suit land, (d) with the learned first appellate Court, hence dismissing the appeal, (e) thereupon, unless a Regular Second Appeal was filed, against declining, of the afore relief of mandatory injunction, for, hence directing the defendants, to remove, the afore obstruction, upon the suit land, (f) thereupon the verdict rendered vis-a-vis, the defendants, acquiring conclusivity and the learned Executing Court being barred, to order for removal of obstruction, if any created by the JDs, upon, the suit bath, (g) given the learned Executing Court hence evidently going beyond the decree. However, the afore contention, reared before this Court, by the learned counsel for the JDs, is not accepted by this Court (i) as the afore submission, is rested upon his, not reading the relief clause, of the plaint, wherein the plaintiffs, had espoused for rendition, of a decree, vis-a-vis, the defendants, for the letters being restrained from causing any nuisance or obstruction, to the plaintiffs, vis-a-vis, the user by them, of suit khasra numbers, as a suit path (ii) when, upon, the afore relief canvassed in Civil Suit No. 89 of 2004, a conclusive and binding decree stood granted, vis-a-vis, the plaintiffs/decree holders, (iii) thereupon, obviously, it also bears, the, necessary effect, qua any obstruction raised, upon the suit path, even during the pendency of the Civil Suit, being amenable for removal by the JDs, (iv) for thereupon, ensuring qua hence the vigor of the conclusive and binding decree of permanent and prohibitory injunction, rendered upon the afore espousal of the plaintiffs, being not rendered both nugatory and redundant. 3. Even otherwise, the declining of relief, to the plaintiffs-decree holders, by the learned First Appellate Court, vis-a-vis rendition, of decree, of mandatory injunction, cannot operative as a bar, upon the learned Executing Court, to efficaciously execute, the, conclusive and binding decree, of permanent prohibitory injunction, rendered vis-a-vis the suit khasra numbers, (a) given a reading of the apposite rendition unfolding qua only for want, of best evidence, in respect of the afore obstruction, being raised by the JDs, upon, the suit khasra numbers, hence, it declining the decree, of mandatory injunction and whereas, the afore evidence being, yet, elicitable rather by the learned Executing Court. 4. Once the learned Executing Court, has, made a order to ensure the fullest and efficacious execution, of a binding and conclusive decree of permanent prohibitory injunction, rendered vis-a-vis, the user of the suit path by the plaintiffs-decree holders, (i) thereupon recourses, vis-a-vis, the, aegises of the revenue officers, is, necessary, (ii) moreso, for ensuring execution, of, necessary determinations of dimensions thereof, (iii) thereupon the dismissal of the JDs objection, vis-a-vis, the conclusive, and, binding decree of permanent prohibitory injunction, cannot be, interfered with. However, the learned executing Court is directed, to elicit, the report of the demarcating officer, for determining qua any obstruction, upon, the suit path, being raised in any manner by the petitioners herein, (iv) and, upon receiving of the afore report, of the Local Commissioner, the learned Executing Court, is directed to order for removal, of the requisite obstructions, made upon, the suit path. The parties are directed to appear before the learned Executing Court, on 25.7.2019. 5. In view of the above observations, there is no merit in the instant petition and the same is accordingly dismissed. All pending applications if any, also stand disposed of. Records be sent back forthwith. 6. Any observation made herein above shall not be taken as any expression of opinion on the merits of the case and the learned Court concerned, shall decide the matter uninfluenced, by any observation made hereinabove.