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Judgment
K.A. Puj, J.—The petitioners have filed this petition under Article 227 of the Constitution of India, praying for quashing and setting aside the impugned order dated 1.5.2007 as well as the execution proceedings being Execution Petition No. 122/2004 filed by the respondents before the learned Principal Civil Judge, Boarsad.
This Court had issued notice on 10.10.2007. This Court had passed a further order on 24.1.2008, wherein it is observed that though the Suit was dismissed and further appeal was also dismissed, the respondents, who are original defendants, cannot seek execution of any order, since no decree was passed in favour of the defendants. The Court, therefore, issued Rule and granted interim relief in terms of paragraph 9(B) whereby the implementation and/or operation and/or execution of the impugned order dated 1.5.2007 passed in Execution Application No. 122/2004 as well as the execution proceedings initiated in Execution Petition No. 122/2004 were stayed.
Heard Mr. C.B. Upadhyaya, learned advocate appearing for the petitioners. Rule was duly served on the respondents. Respondent No. 1 appeared as party-in-person on earlier occasion and filed written submissions. Despite the service of notice of rule, nobody appears on behalf of respondent No. 2, Village Panchayat.
It is the case of the petitioners that the petitioners have filed their Suit for a declaration that adjacent to the residential premises of the petitioners, there was a small pathway and defendant No. 1 has no title on the suit property and, therefore, has wrongly put up construction on the said premises so as to block the flowing water from the roof of the petitioners during the monsoon season.
The said Suit came to be partly allowed by the learned Principal Civil Judge, Borsad vide his judgment and decree dated 6.2.2002 and it was declared that defendant No. 1 was required to remove the compound wall put up by him in the rear side of the residential premises of the petitioners. Total 3 ft. construction was required to be removed as ordered by the learned trial Judge within a period of three months.
Being aggrieved by the said order, the petitioners preferred Regular Civil Appeal No. 25/2002 before the District Court, Nadiad challenging the order passed in Regular Civil Suit No. 279/1999. The said Regular Civil Appeal came to be disposed of on 14.2.2004, whereby the order passed by the trial Court came to be confirmed.
Being further aggrieved by the order of the learned District Judge, the petitioners preferred review application before the District Court being Review Application No. 2/2004. The said Review Application was rejected on 2.4.2005. The petitioners thereafter filed Second Appeal before this Court being Second Appeal No. 91/2006. The said Second Appeal was also disposed of by this Court on 2.8.2007. The ownership right of the defendant No. 1 was negatived by all the Courts.
Mr. C.B. Upadhyaya, learned advocate appearing for the petitioners, has submitted that despite the fact that the observations and directions came to be issued in favour of the petitioners, defendant No. 1 preferred Execution Application, whereby a prayer was sought to the effect that the door situated in the rear wall of the residential premises of the petitioners is required to be demolished. Mr. Upadhyaya further submitted that the learned Civil Judge even without considering the merits and the observations made in the earlier order and the judgments including the order of this Court, has allowed the said Execution Petition by way of the impugned order dated 1.5.2007. He has also submitted that the impugned order is in excess of jurisdiction vested in the Executing Court. He has further submitted that the suit property, which is situated behind the residential premises of the petitioners, is not required to be used by the petitioners. However, at the same time, the door, which is sought to be demolished, is situated inside the residential premises of the petitioners and the said property is having clear title and belongs to the petitioners. He, therefore, submitted that the impugned order is required to be quashed and set aside, as the same is passed without application of mind and is contrary to the directions and observations made by different Courts at different stages of the said matter.
Respondent No. 1, though not present, has filed his written arguments, wherein it is submitted that the action of putting up door by the petitioners is contrary to the judgment of the Court, as at all stages the petitioners had failed and no decree was passed in favour of the petitioners. It is further stated that the property in question was a joint property and the petitioners have no exclusive right to put the door. It is further submitted that the Village Panchayat has issued notice on the petitioners and the petitioners'' action is clearly in violation of Section 104 of the Gujarat Panchayats Act, 1993. It is further stated that the Village Panchayat is a party to the Suit and hence, the directions were to be issued to the Village Panchayat to remove the said door.
Having heard the learned advocate appearing for the petitioners and having considered the written submissions filed on behalf of respondent No. 1 and having gone through the impugned order dated 1.5.2007 passed by the Executing Court, this Court is of the view that in Regular Civil Suit No. 279/1999, the decree was passed to the effect that 3 ft. open land is not of the ownership of the plaintiffs, but, the same can be used by the plaintiffs for air and light purposes and for disposal of rainy water only. Except that, the plaintiff is not entitled to pass or re-pass through this land. There is no finding with regard to the controversy raised in the execution petition. If there is no finding in the judgment and decree that the door should be removed, the executing Court can not give such direction. The present petition mainly centers on the question of power of the Executing Court. If there is no direction to remove the door, the defendant by filing Execution Petition cannot ask for such relief in Execution Petition and Executing Court cannot pass such an order. The learned Civil Judge, while passing the decree, has merely observed that the plaintiff is not entitled to use the way for passing or re-passing. However, there is no clear cut direction that the door should be removed. If the respondent has any grievance against placing of such a door, the respondent should have filed a separate Suit or should have taken appropriate proceedings seeking removal of such door. He cannot seek such a relief by filing Execution Petition. This Court is, therefore, of the view that the direction issued by the Executing Court is beyond the scope of the decree passed by the trial Court and hence, the impugned order deserves to be quashed and set aside.
It is however made clear that since the trial Court has given a finding, which is not disturbed by the appellate Court, to the effect that the plaintiff is not entitled to make use of the way for passing and re-passing and it has also come on the record that the Village Panchayat has issued notice u/s 104 of the Gujarat Panchayats Act, it is open for the respondents to take suitable action in this regard and it is also open for the Village Panchayat to proceed further in accordance with the provisions contained in Section 104 of the Gujarat Panchayats Act. This order will not come in the way of either respondent No. 1 or the village Panchayat.
Subject to the aforesaid observations, this petition is allowed. Rule is made absolute to the aforesaid extent, without any order as to costs.