Kesar Singh vs Laxmi Singh

Rajiv Sharma, J.—This Revision Petition is directed against the judgment dated 31.8.2010 passed by the Additional District Judge, Sirmaur District at Nahan in Civil Miscellaneous Appeal No. 16-N/14 of 2009.

Material facts necessary for the adjudication of this petition are that Respondent-decree holder (hereinafter referred to as ''decree holder'' for convenience sake) instituted suit No. 58/1 of 2000 against the Petitioner-judgment debtor (hereinafter referred to as ''judgment debtor'' for convenience sake) in the court of Civil Judge (Senior Division), Sirmaur District at Nahan. Judgment debtor was stopped from interfering in the suit land, as detailed in the plaint, by the Civil Judge (Senior Division) vide judgment dated 23.6.2001. Judgment debtor preferred an appeal against the judgment and decree dated 23.6.2001. The same was dismissed. According to the decree holder, judgment debtor started interfering in the suit land by removing the fencing on 10.7.2005 and also by cutting the grass and damaging the ginger crop. Decree holder filed execution petition in the court of learned Civil Judge (Senior Division). Judgment debtor filed reply to the execution petition. He denied that he has interfered with the suit land or has destroyed the fencing or ginger crop. According to him, he is a law abiding citizen. No rejoinder was filed. The issues were framed by the learned Civil Judge (Senior Division). Executing Court allowed the execution petition by holding that the judgment debtor has violated the judgment and decree passed by the court on 23.6.2001. Judgment debtor was directed to be kept in civil imprisonment for a period of one month and his property was also ordered to be attached. Judgment debtor filed an appeal before the District Judge, Sirmaur. He dismissed the same on 31.8.2010.

Mr. Rupinder Thakur has vehemently argued that both the courts below have not correctly appreciated the oral as well as documentary evidence. According to him, his client has not disobeyed the judgment and decree dated 23.6.2001.

Ms. Shikha Thakur has supported the judgment passed by both the courts below.

have heard the learned Counsel for the parties and have perused the pleadings carefully.

In the trial court, Tehsildar Nahan was appointed as Local Commissioner. He has submitted the report. Local Commissioner visited the spot and found that the judgment debtor has encroached upon the suit land. Local Commissioner had also recorded the statement of judgment debtor. Decree holder has led his evidence by way of affidavit. According to him, judgment debtor has started interfering with the suit land and has removed the fencing on 10.7.2005 and has also destroyed ginger crop. His statement was duly corroborated by AW-2 Satish Kumar. According to his affidavit, decree holder had fenced the suit land and judgment debtor has damaged the fence on 10.7.2005. He has also cut the grass. Judgment debtor also led evidence by way of his affidavit Ex.R-1. According to him, he has not disobeyed the decree passed by the court. However, in his cross-examination, he has deposed that the possession was delivered to the decree holder after two years of partition. He also admitted that the decree holder had filed the suit after the delivery of the possession. According to him, possession was delivered in the year 2000. Judgment debtor has also examined RW-2 Hitender Singh. He has admitted in his cross-examination that he was not aware of the ownership of the land surrounding the suit land. In other words, statement of RW-2 is of no help to the judgment debtor. This is the evidence led by the parties.

What emerges from the statements of AW-1, AW-2 and the report of Local Commissioner is that judgment debtor has encroached upon the suit land by removing the fence and by cutting the grass and destroying the ginger crop. Statement of judgment debtor is self-serving statement. He has not been supported by RW-2. RW-2 did not know even about the ownership of the land. Judgments cited by Mr. Rupinder Thakur reported in 2000 (2) C LJ 375, 1997 (2) CLJ 439 and 1993 (3) Shim LJ 2294 are not applicable to the facts and circumstances of the present case.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs.