Gurnam Singh vs Darshan Singh

L.N. Mittal, J.—Decree holder (DH) Gurnam Singh has filed this revision petition under Article 227 of the Constitution of India impugning the order dated 27.04.2007 whereby the Executing Court has dismissed the execution petition filed under Order XXI, Rule 32 of the CPC by the petitioner against the respondent/judgment debtor (JD) Darshan Singh. Suit filed by petitioner against the respondent was decreed vide judgment and decree dated 04.09.1995 for permanent injunction restraining the defendant from dispossessing the plaintiff from the suit plot measuring 2 Kanals except in due course of law. The petitioner in his execution petition alleged that in violation of the decree, the respondent/JD in the last week of January, 1999 forcibly and illegally encroached upon about 12 marlas land depicted by letters A, B, C, D, E and F in the site plan out of the suit land by demolishing manger and kachha built Southern wall of house of the petitioner and has constructed pacca wall depicted by letters D to E in the site plan. Accordingly, petitioner sought punitive action against the respondent for violation of the decree.

The respondent in his reply denied all the allegations made by the petitioner. It was pleaded that site measuring 12 marlas depicted by letters A, B, C, D, E and F in the site plan by the petitioner, is not part of the suit property or part of house of the petitioner. The said site is part of house of respondent. Allegations regarding demolition of manger and wall of the petitioner and construction of the new wall by the respondent, were denied.

Learned Executing Court has dismissed the execution application filed by the decree holder, who has, therefore, filed this revision petition challenging the order of the Executing Court.

I have heard learned counsel for both the parties and perused the record of the case.

The petitioner, besides leading other evidence in support of his case, examined one Mukhtiar Singh-AW4, who had allegedly made demarcation at the spot. However, the said demarcation was not made under the orders of the Executing Court. The said demarcation report has been disbelieved and discarded by the Executing Court.

In my considered opinion, on the basis of demarcation only, it can be found out if the respondent has encroached upon any part of the suit property or not. Consequently, the Executing Court while discarding the demarcation report produced by the petitioner, could have appointed a Local Commissioner to make demarcation.

Resultantly, the instant revision petition is allowed and impugned order passed by the Executing Court is set aside. Execution application is restored to the files of the Executing Court for fresh decision in accordance with law after appointing Local Commissioner to demarcate the suit property at the expense of the petitioner. The parties shall not be allowed to lead any other evidence except that if any objection is preferred against the demarcation report, evidence regarding the said objection may be allowed to be adduced.

Parties are directed to appear before the Executing Court on 07.10.2013. Files of the Court below be sent back to the Executing Court at once. Pending miscellaneous application, if any, stands disposed of as infructuous.