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2024 DIGILAW 1132 (PNJ)

Mehinga Singh v. Hazara Singh

2024-08-06

VIKAS BAHL

body2024
JUDGMENT Vikas Bahl, J. (Oral) This is the petition under Article 227 of the Constitution of India for setting aside the ex-parte order dated 07.12.2021 (Annexure P-6) passed by the Additional Civil Judge (Sr.Div.), Garshankar, District Hoshiarpur, whereby the application filed by respondent no.1 under Order 21, Rule 32 CPC was allowed on account of violation of the order dated 29.03.2017. 2. The petitioner had filed a suit for permanent injunction restraining the defendants-respondents from interfering in the possession of the plaintiffs in the property marked as ABCD shown in red colour in the site plan measuring 22 kanals 19 marlas bearing khasra no.3221/2522/2 comprised in khata no.371/60 to 615 as per jamabandi for the year 2006-07 situated in the area of village Rurki Khas, Tehsil Garhshankar, illegally and forcibly. 3. Respondent no.1 (defendant no.1) had filed a counter claim seeking permanent injunction restraining the plaintiffs from interfering into the lawful and peaceful possession of the counter claimants of the land measuring 34 kanals 19 marlas bearing khasra no.3311/3223/2522/7, 3222/2522, 3310/3223/2522, 3221/2522/1 marked as LMNOPQ shown in red and blue colours in the attached site plan. 4. The Additional Civil Judge (Sr.Div.), Garshankar vide judgment and decree dated 29.03.2017 granted the following relief to the counter claimants:- "27. So far, as counterclaim of the counter-claimants/defendants No.1 and 2 is concerned, in view of the findings in issue No.4-A, counter claimant stands decreed with costs. The plaintiffs are restrained from interfering into the lawful and peaceful possession of the counter-claimants of the land measuring 34 kanals 19 marlas bearing khasra no.3311/3223/2522/7, 3222/2522, 3310/3223/252, 3221/2522/1 marked as LMNOPQ shown red and blue in colour in the attached site plan. Decree sheet be prepared and file be consigned to the record room." It is not in dispute that the said judgment and decree has attained finality. 5. Decree sheet be prepared and file be consigned to the record room." It is not in dispute that the said judgment and decree has attained finality. 5. An application under Order 21, Rule 32 read with section 151 CPC was filed by respondent no.1-decree holder in which it had been stated that in spite of the fact that his counter claim with respect to land measuring 34 kanals 19 marlas, which was marked as LMNOPQ and was shown in red and blue colours in the site plan annexed with the counter claim, was allowed but after the passing of the decree, the petitioner-judgment debtor in the counter claim had encroached upon the land marked as ABCD shown in red colour in the site plan attached with the application out of khasra no.3222/2522, with dimensions, from eastern side 2 karams in width and from western side 4 karams in width and 102 karams in length and have included the same into their land in the evening on 30.04.2017. It is also submitted that they have constructed a water tank for the tubewell in the land of the applicant-decree holder-respondent no.1 and have thus, violated the order of injunction. A prayer was made in the said application that the petitioner be punished and their land be attached and sold for violating the orders passed by the trial Court. It would be relevant to note that the said ABCD which is claimed to be an encroached land as per the case of the respondent is actually a different land from the land regarding which the injunction has been passed in favour of the petitioner. The said aspect could not be disputed by learned counsel for the petitioner as the site plan attached with the judgment and decree dated 29.03.2017 has not been annexed along with the present revision petition. 6. A reply dated 07.10.2017 was filed by the petitioner to the said application and in paragraph 4 of the said application it was stated that the petitioner was obeying the decree passed by the Court whereas it is the respondent no.1 who was not obeying the decree dated 29.03.2017. 7. 6. A reply dated 07.10.2017 was filed by the petitioner to the said application and in paragraph 4 of the said application it was stated that the petitioner was obeying the decree passed by the Court whereas it is the respondent no.1 who was not obeying the decree dated 29.03.2017. 7. The Additional Civil Judge (Sr.Div.), Garhshankar, District Hoshiarpur vide order dated 07.12.2021 after considering the evidence on record had allowed the application under Order 21, Rule 32 CPC and granted the petitioner one month's time to remove encroachment made by the petitioner upon the land of the respondent no.1. Liberty was granted to respondent no.1 to file a separate application for obtaining possession also. A perusal of the said order would show that in spite of the fact that the reply was filed to the application under Order 21, Rule 32 CPC by the petitioner, he did not appear and was proceeded against ex-parte. Respondent no.1 had examined AW-1, AW-2 and AW-3 and had lead evidence in support of his plea, whereas the petitioner had not produced any evidence in support of his plea. 8. Learned counsel for the petitioner has submitted that the petitioner has not made any encroachment and thus, the present revision petition be allowed. 9. Learned counsel for respondent no.1, on the other hand, has submitted that it has been found on the basis of the evidence led before the Executing Court that the petitioner has encroached upon the land regarding which counter claim of respondent no.1 was allowed and there is no illegality or perversity in the order and since there was no evidence led by the petitioner in support of the reply filed before the Executing Court, thus, the petitioner cannot be permitted to raise any plea to challenge the order dated 07.12.2021. 10. This Court has heard the learned counsel for the parties and has perused the paper book. 11. It is not in dispute that the petitioner had filed a reply to the application filed by respondent no.1 under Order 21, Rule 32 CPC read with section 151 CPC and thereafter had led no evidence and rather was proceeded against ex-parte. 10. This Court has heard the learned counsel for the parties and has perused the paper book. 11. It is not in dispute that the petitioner had filed a reply to the application filed by respondent no.1 under Order 21, Rule 32 CPC read with section 151 CPC and thereafter had led no evidence and rather was proceeded against ex-parte. The Executing Court, after framing issues and also after considering the evidence on record i.e., of AW-1 Hazara Singh, AW-2 Kuldeep Singh and AW-3 Kashmir Singh Sadar Kanugo, Tehsil Office Hoshiarpur and after considering the detailed facts and circumstances of the case, came to the conclusion that the petitioner had violated the judgment and decree passed in favour of respondent no.1 with respect to the counter claim and had encroached upon the property of respondent no.1 herein. Nothing has been shown to this Court that the order dated 07.12.2021 is perverse or illegal or is based upon misreading of the evidence. Even the site plan, on the basis of which the judgment and decree dated 29.03.2017 was passed, has not been placed on record to clearly show as to what land was decreed in favour of the counter claimant and also the petitioner. The site plan dated 02.05.2017 has been placed on record as Annexure P-7 but apparently the same is subsequent to the judgment and decree dated 29.03.2017 and learned counsel for the petitioner has not been able to clarify as to in which proceeding the said site plan was exhibited. At any rate, no evidence was led by the petitioner before the Executing Court to rebut the stand of respondent no.1 which was substantiated by evidence led by him. Thus, it is not open to the petitioner to raise plea for the first time before this Court moreso when, there is no evidence led by the petitioner before the Executing Court. 12. Keeping in view the above said facts and circumstances, this Court is of the opinion that the impugned order dated 07.12.2021 (Annexure P-6) passed by the Executing Court is legal and in accordance with law and the present petition is meritless and deserves to be dismissed and is accordingly dismissed. 13. Pending application, if any, stands disposed of in view of the above-said order.