Bansi Lal vs Rattan Chand and Another

Rajiv Sharma, J.—Petitioner (hereinafter referred to as "judgment debtor" for convenience sake) has filed the present revision petition against the order dated 23.11.2010, passed by the learned Civil Judge, Junior Division, Court No. 2, Amb, District Una, H.P. in Objection No. 23/2010.

Material facts necessary for the adjudication of this petition are that the Respondent-Rattan Chand (hereinafter referred to as ''the decree holder" for brevity sake) instituted a suit in the Court of learned Sub Judge Ist Class, Court No. II, Amb, bearing Civil Suit No. 210 of 1995 for declaration with permanent injunction. The suit was decreed by the trial Court 07.02.2003. The operative portion of the judgment reads thus:

As a result of my aforesaid findings, suit of the Plaintiff is decreed to the effect that the suit land is jointly owned and possessed by the parties and entries to the contrary in the revenue record are declared as wrong, illegal, null and void. The Defendants are also restrained from forcibly ousting the Plaintiff from enjoyment, user of the well and Galli existing over the suit land and from changing the nature of the suit land till partition. There is no order as to costs. Decree sheet be prepared accordingly. Case file be consigned to the record room after its due completion.

Thereafter, the decree holder moved an application before the learned Civil Judge, Junior Division, Court No. 2, Amb, District Una, H.P. under Order 21 Rule 32 of the Code of Civil Procedure, seeking direction to the judgment debtor to remove the obstruction caused in the Gali existing over Khasra No. 131, situate in Up Mahal Indra Nagar Village Gagret Tehsil Amb, District Una, H.P.

Judgment debtor has filed a detailed reply to the same on 11.03.2008. Decree holder filed a rejoinder to the reply filed by the judgment debtor. Trial Court framed the following issues:

(1) Whether execution petition is not maintainable? OPR

(1-A) Whether the J Ds have disobeyed the judgment and decree dated 07.02.2003? OPA

It is also evident from the record that a Local Commissioner was also appointed by the trial Court to visit and inspect the spot and to report about the nature and extent of the construction being raised by the judgment debtors over the land comprised in Khasra No. 131, situated in Up Mohal Indra Nagar, Village Gagret, Tehsil Amb, District Una, H.P. The Civil Judge (Junior Division), Court No. 2, Amb, District Una, H.P. directed the judgments debtors to remove such portion of wall as it was sufficient to provide access to Khasra No. 131 and 133 within one month. In other words, the objections preferred by the judgment debtors were dismissed. Hence, this Civil Revision Petition.

Mr. Anup Rattan, learned Counsel for the Petitioner has vehemently argued that no Teen posh bathroom has been constructed over Khasra No. 131. According to him, there is alternative passage available to the decree holder to visit Khasra Nos. 131 and 133 from his own abadi. He also argued that the executing Court has gone beyond the decree. Mr. Sanjeev Kuthiala, learned Counsel for Respondent No. 1 has supported the order dated 23.11.2010.

In order to prove the case, the decree holder has appeared as AW-1. He has led his evidence by way of affidavit Ex. AW-2/A. He has denied the suggestion that there was path through Khasra Nos. 131 and 133. According to him, earlier there was a path, but now the same has been blocked.

However, the statement of AW-2 Local Commissioner is relevant in the present case. AW-2 is Shri Rajesh Malwal was appointed as Local Commissioner vide order on 29.03.2008 by the trial Court to inspect the spot and to report about the nature and extent of construction raised by the judgment debtors. According to him, he visited the spot on 24.03.2008. He recorded the presence of the parties vide presence sheet Ex. PW-2/A. He has furnished his report Ex. PW2/B, which has also been placed on record in this case by the Petitioner vide Annexure P-6. According to him, the Galli on the spot was 5/6 X 3 meters wide, but it was blocked. He did not know the Khasra number of the Galli. He got the Galli identified through the parties. He also admitted that there was no other Galli touching the road. He also admitted that there was no Galli between Khasra Nos. 127 and 128. According to him, the judgment debtors have raised a Wall over Khasra No. 133 towards his house and laid down lintel over the same. RW-1 has produced the site plan Ex.RW-1/A. Petitioner has appeared as RW-2. He has denied the suggestion that construction was raised on Khasra No. 131 after passing of judgment dated 07.02.2003. It is evident from the judgment and decree dated 07.02.2003 that judgment debtors were restrained from forcibly ousting the Plaintiff from enjoyment, user of the well and Galli existing over the suit land and from changing the nature of suit land. Learned trial Court has rightly come to the conclusion that there is no access to Khasra Nos. 131 and 133 since the wall has been raised at the entrance of Khasra Nos. 127 and 128. In fact the judgment debtors have raised six feet wall in height at its entrance. The judgment debtors have violated the judgment and decree dated 07.02.2003 Ex. A-1. There is neither any illegality nor procedural impropriety in the orders passed by the Court on 23.11.2010.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.