Rajinder Parsad vs Raj Singh

N.K. Kapoor, J.—This revision petition is against the order dated 20.8.1994 passed by the Executing Court under Order 21 Rule 32 of the CPC holding that the petitioner-Judgment debtor has failed to obey the decree dated 28.5.1990 and so his property be attached.

Before examining the matter, it would be appropriate to briefly notice the salient facts leading to the present controversy. Raj Singh filed a suit for permanent injunction restraining Rajinder Parsad - petitioner - from interfering in his possession over the land comprised in Khasra No. 130. His claim was decreed vide judgment and decree dated 28.5.1990. It is the case of the decree holder that after the passing of the decree, judgment debtor has illegally and forcibly occupied a portion of Khasra No. 130 and further wants to encroach upon the land to install a hand pump and construct a wall. This way he is guilty of disobeying the decree and so action needs to be initiated under Order 21 Rule 32 of the Code of Civil Procedure. Thus a prayer was made that the judgment debtor be detained in civil prison and his property be attached.

Pursuance to the notice issued by the Executing Court, judgment debtor put in appearance and contended that the suit was decreed on the statement of the judgment debtor to the effect that he has no connection whatsoever with the property comprised in Khasra No. 130. It was further stated that he has not encroached upon any portion of the property of the decree holder and that he is installing a hand pump as well as constructing the boundary wall on his own land comprised in khasra No. 129. The executing Court primarily relied upon the demarcation report Exhibit A-1 (report of Sh. Ranjit Singh Kanungo (Retd) and has come to the conclusion that the judgment debtor has encroached upon the portion of Khasra No. 130 to the extent of 30 x 29-1/2 feet and this way has wilfully disobeyed the decree.

The petitioner has assailed the order of the executing Court on a number of grounds; (i) that the execution application does not disclose any particulars of the violation. No details or dates of the alleged violation have been mentioned in the execution application; (ii) that the petitioner had no notice of the appointment of the Local Commissioner nor had such a commissioner been appointed by a civil Court; (iii) that the report of the Local Commissioner is per se contrary to the directions of the Financial Commissioner for resolving the boundary disputes; and (iv) the petitioner''s restaurant is in existence over Khasra No. 129 long before even the passing of the decree on 28.5.1990. Elaborating, the counsel urged that neither the execution application nor the evidence in any way suggest that the judgment debtor has violated the mandate of the decree. This being the position, the impugned order is legally unsustainable. Even the approach of the executing Court is erroneous as whole reliance has been placed upon the report of the Local Commissioner stated to have been appointed by the Assistant Collector IInd Grade and that too without any notice to the petitioner.

These assertions have been seriously contested by the learned counsel for the decree holder. According to the counsel, despite having conceded the claim of the decree holder by the judgment debtor, the latter started encroaching upon the area owned and possessed by the decree holder and this way is clearly guilty of violating the mandate of the decree. This fact is fully established as per report Exhibit A-1 vide which it has been found that the judgment debtor has encroached upon the area measuring 30 X 29-1/2 feet of land comprised in Khasra No. 130.

I have heard learned counsel for the parties and perused the impugned order as well as the statement of some other witnesses recorded by the executing Court. The crux of the matter revolves around the report Exhibit A-1 given by Ranjit Singh with regard to demarcation of area comprised in Khasra No. 130. Admittedly, this demarcation has been effected as per order of the Assistant Collector IInd Grade. There is no clear evidence on record as to whether any notice was issued to the judgment debtor. This being the position, any such report cannot bind an affected party who has not been heard. Thus, in the context of the present dispute, I am of the view that the matter needs to be examined afresh i.e. by getting the area demarcated from a revenue officer of the rank of Tehsildar. Accordingly, I accept the revision petition, set aside the order dated 20.8.1994 and remit the case back to the execution Court with a direction that he would appoint revenue officer of the rank of Tehsildar for demarcation of the suit property. The executing Court will direct the revenue officer to keep in view the instructions issued by the Financial Commissioner with regard to resolving disputes pertaining to the boundaries/encroachment cases. The revenue officer be further directed to issue prior notice t the parties before visiting the spot. On receipt of the report and on the disposal of the objection, in any, raised by the party, the executing Court shall pass appropriate order without any further delay. The parties are directed to appear before the executing Court on 6.4.1995. Dasti on payment.