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2025 DIGILAW 473 (HP)

Kishore Singh v. Gurcharan Singh

2025-03-24

SATYEN VAIDYA

body2025
JUDGMENT : (Satyen Vaidya, J.) By way of instant petition, the petitioner has taken exception to order dated 28.01.2010 passed by the learned Civil Judge, Court No.II, Amb, District Una, H.P., in Execution Petition No.18/2013, whereby the application of the petitioner/decree holder under Order 21, Rule 32 of the Code of Civil Procedure (for short “Code”) has been dismissed. 2. Petitioner herein is the decree holder in whose favour decree dated 25.07.2012 in Civil Suit No.193 of 2006 has been passed by the learned Civil Judge ( Junior Division) Court No.II, Amb in following terms:- “23. In view of my findings on the aforesaid issues, I do, hereby, decree the suit of plaintiff to the following effect: “1). That the plaintiff is entitled to decree of permanent prohibitory injunction restraining the defendants from raising any sort of construction over the suit land as well as path over the suit land, tethering buffaloes, throwing cow dung over the path leading to the house of plaintiff through the suit land, changing the nature of the suit land without the consent and permission of plaintiff and without the getting the suit land partitioned by metes and bounds. 2). The plaintiff is also entitled for decree of mandatory injunction by which the defendants are directed to remove their kacha tin posh shed from the path within 15 days from the date of decree, failing which execution will follow on the costs of defendants. No order as to costs. A decree be prepared accordingly. The file, after due completion, be consigned to records.” 3. It is evident from the averments made in the application under Order 21, Rule 32 of the Code as also the reply filed thereto that the aforesaid decree was challenged by way of Civil Appeal No. 53 of 2012 and the learned Additional District Judge, Una, vide judgment and decree dated 13.03.2013 had set aside para-23(2) of the decree whereas the decree for permanent prohibitory injunction was affirmed. 4. Petitioner/decree holder filed an application under Order 21, Rule 32 of the Code on 01.10.2013 before the learned Executing Court with the allegation that the respondents/judgment debtors had not stopped to tether their buffaloes in the passage and had not even stopped to throw cow dung over the path. It was further alleged that in the month of August, 2013, respondents/judgment debtors had closed the passage by raising boundary wall. It was further alleged that in the month of August, 2013, respondents/judgment debtors had closed the passage by raising boundary wall. Petitioner/decree holder placed reliance for identification of such wall on site plan annexed by him with the application. He alleged that the respondents/judgment debtors had willfully and intentionally violated the decree dated 25.07.2012. 5. The respondents/judgment debtors filed the reply and denied all the allegations with respect to disobedience or violation of decree dated 25.07.2012. 6. Learned executing Court framed the following issues:- “1. Whether the respondents have intentionally and willfully disobeyed the decree of this court dt. 25.07.2012 passed by this court, as alleged? OPA 2. Relief. 7. Issue No.1 was answered in negative and resultantly application of the petitioner/decree holder under Order 21, Rule 32 of the Code was dismissed. 8. I have heard learned counsel for the parties and have also gone through the entire record carefully. 9. Perusal of the contents of impugned order reveals that the application under Order 21, Rule 32 of the Code has been dismissed by the learned executing court on the ground that the petitioner/decree holder had failed to prove his allegations. 10. Learned Senior Counsel for the petitioner/decree holder has contended that the impugned order is a result of misappreciation of evidence. As per him, the petitioner/decree holder had proved his allegations by way of oral as well as documentary evidence. 11. The petitioner/decree holder has alleged disobedience of decree by the respondents/judgment debtors by alleging that the respondents/JD had violated or disobeyed the decree in following manner:- (a) by continuing to tether the buffaloes in the passage; (b) by allowing spillage of cow dung over the path;and (c) by closing the passage by raising a boundary wall. 12. Noticeably, the decree has been passed in favour of the petitioner/decree holder in respect of the land comprised in Khewat No. 111, Khatauni No.186, Khasra No.939, measuring 0-02-76 hectares in Village Sapouri, Teshil Amb, District Una, H.P. The reference in decree is only with respect to path over the suit land without any specific identification. Since, the petitioner/decree holder had alleged the violation of decree by way of blockage of passage through tethering of cattle and spillage of cow dung thereon, it was incumbent upon the petitioner/decree holder to make out clear allegations and prove the same by way of cogent evidence. Since, the petitioner/decree holder had alleged the violation of decree by way of blockage of passage through tethering of cattle and spillage of cow dung thereon, it was incumbent upon the petitioner/decree holder to make out clear allegations and prove the same by way of cogent evidence. The same analogy applies to the other allegations of the petitioner/decree holder that the respondents/judgment debtors in violation of the decree had raised a wall on the suit land blocking the passage. 13. Admittedly, the petitioner/decree holder did not make any effort to prove the spot identification in accordance with law, to enable the Court to appreciate the spot position as existed before and after passing of the decree. Strangely, the petitioner/decree holder placed reliance upon a site plan/spot map Ex.PW2/A, which has been prepared by a deed writer (PW-2). The petitioner/decree holder had neither taken help/assistance from any revenue officer nor from some other technical expert. How a deed writer could prepare the site plan is not understandable. Even PW-2 has deposed that he did not seek any aid from the revenue expert. The respondents/judgment debtors were not associated by PW-2 while preparing the site map. The oral testimonies of petitioner/decree holder and one of his witness PW-4 have rightly been held to be insufficient by the learned trial Court. The inference drawn by the learned trial Court from the statements of these two witnesses is plausible. No perversity can be attached to the appreciation of evidence made by the learned trial Court. 14. On the request of the petitioner/decree holder, this Court had appointed a Local Commissioner to visit the site and report the factual position. The Local Commissioner submitted his report dated 21.11.2021. The report of the Local Commissioner also did not suggest any fact which may support the contention of the petitioner/decree holder. 15. In result, no interference is called for in the impugned order. Accordingly, the instant petition is dismissed being devoid of any merits. 16. Pending applications, if any, also stand disposed of.