Malkiat Singh and Another vs Naginder Singh

Jaswant Singh, J.—Judgment Debtors Malkiat Singh and his wife Hamir Singh in the present revision petition under Article 227 of the Constitution have assailed the order dated 31.10.2008(P-5) whereby the learned Executing Court has found them guilty under Order 21 Rule 32 CPC of violating the judgment and decree of injunction dated 17.04.2003 and directed the attachment of their property for a period of six months and further ordered their detention in civil imprisonment for a term of one month.

It is stated that Respondent-Plaintiff Nagender Singh on 30.11.1999 had filed a suit for permanent injunction in respect of the street shown in the site plan attached with the suit and seeking to restrain the Defendants/Petitioners from blocking or creating any hindrance in the street as per the site plan.

It is admitted that the suit was decreed on 17.04.2003. It is further apparent that decree holder Nagender Singh filed an application (P-2) under Order 21 Rule 32 CPC for enforcing the decree in view of certain alleged construction having been raised in the street by the judgment debtors. Reply(P-3) to the same was filed by the Petitioners/J Ds wherein it was asserted that no construction had been raised, however, certain bricks lying at the said spot were existing/lying prior to the filing of the suit and which in any case were under the directions of the Panchayat. Learned Executing Court after framing of issues and adducing of the evidence by both the parties, vide impugned judgment dated 31.10.2008 found that the width of the street had been reduced from 2 Karams to 1-1/2 karams towards the end of the street and thus held that the Respondents/Petitioners had encroached upon the street. Hence the present revision petition was filed.

Vide interim order dated 03.02.2009 this Court while issuing notice had stayed the imprisonment of Petitioners in view of the assertion made by the Petitioners that they had since removed the said encroachment.

During the course of further hearing on 13.08.2010, in the presence of counsel for both the parties, this Court directed the Tehsildar of the concerned area to visit the spot in order to ascertain whether the encroachment exists at the site in question.

Mr. Manjit Singh, Naib Tehsildar, Sherpur visited the spot on 19.01.2011 and submitted his report dated 6.4.2011 before this Court. Thereafter he has filed his additional affidavit dated 12.05.2011 in support of his report. Both the Counsel for the parties, with the assistance of the Naib Tehsildar, who is present in Court, have gone through the site plan attached with the report dated 6.4.2011 as also para 7 of the additional affidavit dated 12.05.2011 and are at idem agreed that from the perusal of the same it is evident that no encroachment on the public street by the Petitioners Malkiat Singh and his wife exists on the street. It is, however, found that some encroachment has been made by one Jagdev Singh son of Badan Singh on the public street, who is the immediate neighbour of Nagender Singh. The relevant para 7 of the affidavit for ready reference reads as under:

That encroachment of the property in dispute is made clear in the demarcation report, as per the actual position at the spot, Jagdev Singh son of Badan Singh has encroached 1/2 karam wide and 2 karam length of the street in dispute and 3 karam X 1/2 karam area of the public path by raising a brick wall.

In view of the factual position existing at the site, learned Counsel for the Respondent/decree holder has no objection if the present revision petition is allowed and he is given liberty to seek his remedy available in accordance with law against the other encroachers.

In view of the above agreed stand and report(s) of the Naib Tehsildar, Sherpur the impugned order dated 31.10.2008 is set aside. Needless to say that the Respondent shall be at liberty to seek his remedy available under and in accordance with the law.