Kuntala Beura And Another vs Baikuntha Bhol

Dr.A.K.Rath, J

This petition challenges the order dated 21.3.2018 passed by the learned Civil Judge (Junior Division), 1st Court, Cuttack in Execution Case No.15

of 2015, whereby and whereunder, learned executing court directed the J.Drs.-petitioners to deliver the vacant possession of Ac.0.02 dec. of land to

the D.Hr. by removing the encroachment.

The plaintiff-opposite party instituted C.S.No.311 of 2013 for permanent injunction and recovery of possession in the event he is dispossessed

during pendency of the suit. Learned trial court held that the plaintiff has not adduced any evidence that defendant nos.1, 2 and 4 have failed to

establish that they are in possession of the suit land. The plaintiff is not entitled to recovery of possession. Held so, it decreed the suit on 8.5.2014.

Thereafter the D.Hr levied Execution Case No.15 of 2015. A petition was filed by the D.Hr for recovery of possession of Ac.0.02 dec. of land out

of Ac.0.12 dec. of land appertaining to khata no.481 plot no.787 which is a part of the suit land. It is stated that after decree dated 8.5.2014, the J.Drs.

have forcibly encroached upon an area Ac.0.02 dec. of land towards west of the suit plot no.787 on 21.1.2015. Learned executing court allowed the

petition and directed the J.Drs. to deliver the vacant possession.

Heard Mr.N.N.Mohapatra, learned counsel for the petitioners.

Mr.Mohapatra, learned counsel for the petitioners submits that the suit was filed for permanent injunction. In a suit for permanent injunction, no

recovery of possession can be made. Learned executing court cannot go behind the decree. He further submits that by the time the decree was

passed, J.Drs. had taken over possession of the suit land and constructed the house.

In Jai Dayal and others v. Lal Garg and another, AIR 1997 SC 3765, the appellant had filed the Suit No.1023/61 againt the respondent for perpetual

injunction and also for mandatory injunction restraining him from blocking passage of 5ft. between the house of the appellant and that of respondents

and for removal of the obstruction. The suit was decreed. The decree was confirmed by the appellate court. When the appellants filed an application

for execution under Order 21, Rule 32 C.P.C., the respondent had removed the obstruction and, consequently, the execution case was struck out. The

order was upheld by the appellate court. Subsequently, a shop was constructed. The same had completely blockage the passage. Thereafter the

appellant again filed an execution petition under Order 21, Rule 32 C.P.C. The executing court had directed to remove the obstruction. On appeal, the

learned Additional District Judge confirmed the same. In the second appeal, the learned Single Judge reversed the decree and remitted the matter

back. Thereafter, the petitioner approached the Supreme Court. The Supreme Court held that once the decree of perpetual injunction and mandatory

injunction has become final, the J.Dr. is required to obey the decree. In whatever form he obstructs, it is liable to removal for violation and the natural

consequence is the execution proceedings under Order 21, Rule 32 C.P.C. It would be no defence for the respondent to plead that he has not

obstructed the passage etc. or that, a part of the property in which the present shop was constructed was not a part of the property in the original suit.

If a J.Dr. has suffered the decree, no attempt to circumvent the perpetual injunction and mandatory injunction, can be permitted. The D.Hr. cannot be

pushed to another round of litigation. In the second suit, the same will amount to encouraging the persons to take the law into their own hands and

drive the decree-holder to another suit. It can never be facilitated to circumvent the law and relegate the party for tardy process of the civil action.

In Gopal Barik v. Bhima Barik and another, 1993(I) OLR-139, the plaintiff instituted the suit for declaration of title, confirmation of possession and

recovery of possession, in the event he is dispossessed during pendency of the suit and permanent injunction. The suit was decreed with the findings

that the plaintiff has title and possession of the property. The defendant was permanently restrained. Thereafter he filed execution for recovery of

possession. The J.Dr. filed objection. Petition was allowed. The J.Dr. approached this Court. This Court held that the executing court can grant

recovery of possession.

Reverting to the facts of the case and keeping in view the law laid down by the apex Court, this Court finds that the plaintiff has instituted the suit

for permanent injunction and in the alternative recovery of possession. Learned trial court held that defendant nos.1, 2 and 4 have failed to establish

that they are in possession of the suit land and declined to grant the prayer for recovery of possession. The suit for permanent injunction was decreed.

The Court did not feel it necessary to direct recovery of possession in view of its finding that the defendants have failed to establish the fact that they

are in possession of the suit land. The decree has attained finality. In view of the same, decree for permanent injunction can be executed, where the

D.Hr. has been dispossessed and to that extent the executing court is within its jurisdiction to direct recovery of possession.

The impugned order does not suffer from any illegality or infirmity warranting interference of this Court under Article 227 of the Constitution of

India. The petition is dismissed. There shall be no order as to costs.

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