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2023 DIGILAW 73 (HP)

Chaman Lal v. Kulbir Singh

2023-01-13

SANDEEP SHARMA

body2023
JUDGMENT : SANDEEP SHARMA, J. 1. Instant petition filed under Article 227 of the Constitution of India, lays challenge to order dated 16.12.2022 passed by the learned Senior Civil Judge, Nurpur, District Kangra, H.P. in execution petition No. 55/2015, whereby executing court having taken note of its earlier order dated 3.9.2019, wherein it stood recorded that petitioner-JD has violated the judgment and decree dated 30.7.2011, passed by the Civil Court, whereby petitioner-JD was restrained from interfering, dispossessing and changing the nature of the suit land comprised in Khata No. 25, Khatauni No. 27, Khasra No. 1207/195, measuring 478-00 square meters situate in Up Mohal Chaugan, Mauza Nurpur Shehar, Tehsil Nurpur, District Kangra Himachal Pradesh (herein after referred to as the “suit land”) ordered to send the petitioner-JD to civil imprisonment for sixty days. 2. Precisely, facts of the case as emerge from the record are that respondent-DH filed civil suit restraining the petitioner-JD from interfering/dispossessing and changing the nature of the suit land. Aforesaid suit came to be decreed vide judgment and decree dated 30.7.2011, passed by the learned Civil Judge, Nurpur. Since no appeal whatsoever ever came to be filed against the aforesaid judgment and decree passed by the learned Sr. Civil Judge Nurpur, same has attained finality. Since after passing of judgment and decree, petitioner-JD violated the mandate contained in the aforesaid judgment and decree passed in favour of the respondent-DH, he filed execution petition bearing 55/2015, which came to be disposed of vide order dated 3.9.2019 (Annexure P-1). Executing court vide aforesaid order, ordered for attachment of immovable property of JD and also by way of detention in civil imprisonment. Though challenge was laid to aforesaid order by way of civil revision No. 139 of 2019 filed under Section 115 CPC in this court, but same was also dismissed vide judgment dated 13.6.2022 (Annexure P-2). After dismissal of the civil revision as detailed herein above, executing court vide order dated 16.12.2022 )Annexure P-3) while ordering to send the petitioner-JD for civil imprisonment for sixty days also ordered for attachment of the property of the JD. In the aforesaid background petitioner-JD has approached this court in the instant proceedings. 3. After dismissal of the civil revision as detailed herein above, executing court vide order dated 16.12.2022 )Annexure P-3) while ordering to send the petitioner-JD for civil imprisonment for sixty days also ordered for attachment of the property of the JD. In the aforesaid background petitioner-JD has approached this court in the instant proceedings. 3. On 11.1.2023, learned counsel for the petitioner JD while inviting attention of this Court to the photographs placed on record submitted that alleged encroachment, if any, upon the suit land has been removed and as such, order sending petitioner to civil imprisonment needs to be recalled. This Court with a view to ascertain the factum with regard to removal of encroachment and handing over of the vacant possession of the suit property, passed following detailed order on 11.1.2023: “Since it has been claimed by the petitioner-JD that after passing of the order dated 16.12.2022, obstruction, if any, caused by the petitioner/JD on the suit property comprised in Khata No. 25, Khatauni No. 27, Khasra No. 1297/195, measuring 479-00 square meters situate in Up Mohal Chaugan, Mauza Nurpur Shehar, Tehsil Nurpur, District Kangra Himachal Pradesh, belonging to the respondent/DH, has been removed, which fact is otherwise evident from the photographs placed on record, this Court before considering prayer made in the instant petition deems it fit to direct Sub-Divisional Magistrate, Nurpur, to visit the spot and verify from the respondents/DH namely Sh. Kulbir Singh and Smt. Chander Kanta, factum of removal of encroachment, if any, made by the petitioner/JD on the suit property. Sub-Divisional Magistrate after having visited the spot in terms of instant order shall send the report to this Court by Fax through the learned Additional Advocate General, enabling this Court to pass appropriate order on the next date of hearing. Authenticated copy of this order, be supplied to the learned Additional Advocate General during the course of the day, enabling him to communicate the same to SDM so that needful is done within the stipulated time. Necessary compliance be done before the next date of hearing. List on 13.1.2023.” 4. Pursuant to aforesaid order, Tehsildar, Nurpur, District Kangra, H.P. has sent the report with the statements of the parties. Necessary compliance be done before the next date of hearing. List on 13.1.2023.” 4. Pursuant to aforesaid order, Tehsildar, Nurpur, District Kangra, H.P. has sent the report with the statements of the parties. Aforesaid report is taken on record and perusal whereof clearly reveals that disputed khasra No. 1207 was found vacant on the spot except two meters concrete floor on the corner of eastern-southern side in decreasing position towards west-southern corner. Apart from above, small open drainage was also found alongside aforesaid concrete portion toward the main drainage in khasra No. 196. 5. Demarcation was conducted in the presence of authorities and tatima was prepared on the spot under the guidance of the Tehsildar, which is enclosed with the report, perusal whereof clearly reveals that khasra No. 1207 is vacant save and except two meters concrete floor on the corner of eastern-southern side of khasra No. 1207. Though Mr. Chain Singh i.e. father of the DH stated before Tehsildar, Nurpur that he is satisfied with the demarcation, but drainage found on the khasra No. 196 is required to be removed. On the other hand, brother of the petitioner namely Manohar Lal stated that on spot, that land comprising khasra No. 1207/196 measuring 478 sq. meters is lying vacant and at present, there is no interference/obstruction if any, caused by the petitioner JD. He also stated that no dirty water flows to khasra No. 1207, rather same flows from the office of Nagar Parishad and bus-stand on adjoining khasra numbers. 6. Having perused aforesaid report submitted by the Tehsildar, Nurpur, this Court finds merit in the submission of learned counsel for the petitioner-JD that at present, there is no obstruction, if any, caused by the petitioner-JD on the suit land. As far as two meters concrete portion on the corner of eastern-southern side of kaksra No. 1207 is concerned, same is stated to have been found constructed/laid down by the office of Electricity Board situate in the vicinity. Learned counsel for the petitioner states that petitioner JD has no objection in case aforesaid concrete portion is removed/demolished. Since suit land is lying vacant on the spot as has been reported by the Tehsildar, Nurpur, in its report, there appears to be no justification to keep the petitioner-JD behind bars for 60 days as been ordered vide impugned order. 7. Since suit land is lying vacant on the spot as has been reported by the Tehsildar, Nurpur, in its report, there appears to be no justification to keep the petitioner-JD behind bars for 60 days as been ordered vide impugned order. 7. Consequently in view of the above, present petition is allowed and impugned order dated 16.12.2022 is quashed and set-aside and petitioner is ordered to be released from civil imprisonment forthwith. Since petitioner-JD is lodged at Sub Jail, Nurpur, release warrants be prepared accordingly and sent through Fax/Email to the concerned Superintendent of Sub Jail, immediately. In case, petitioner violates or again makes an attempt to violate the mandate contained in the judgment and decree sought to be executed, he would render himself liable for penal consequence as well as contempt of court. In the aforesaid terms, present petition is disposed of with pending applications, if any.