Rajwant Singh vs Mohinder Singh

G.C. Garg, J.—This revision is directed against the order dated 21.8.1993 passed by the executing Court.

Mohinder Singh filed a suit for mandatory injunction directing the defendant to cut the trees standing on the joint Butt between the land comprising Khasra Nos. 27/1/2, 10/1, 11/2 and 20/1 owned by the defendant and the land comprising Khasra Nos. 27/1/1, 10/2, 11/1 and 20/2 owned by the plaintiff in the area of village Tohang, Tehsil Phillaur as per the jamabandi for the year 1981-82. The suit was disposed of by judgment and decree dated 6.2.1985 by passing the following order-

"This suit is coming for the first time for final disposal before me today (6.2.1985) (Shri S.S. Sandhu, PCS, Sub Judge, 1st Class, Phillaur), in the presence of Shri S.P. Aggarwal, Advocate, counsel for the plaintiff and Shri Chuni Lal, Advocate, counsel for the defendant. It is ordered that the suit of the plaintiff partly succeeds and I pass a decree for mandatory injunction in favour of the plaintiff directing the defendant to prune the over hanging branches of the trees standing on the joint boundary of the land of the parties so as to avoid the falling of their shades on the crops standing in the land of the plaintiff. The defendant would keep pruned the trees standing on the joint Butt (boundary) and standing in his own land in such a manner that the shadows of the trees should not cause any undue loss to the crops of the plaintiff. In the circumstances of the case the parties are left to bear their own costs."

The decree holder perhaps felt aggrieved by some action of the judgment debtor. He consequently took out execution. The executing court by order dated 21.8.1993 appointed Shri Amrik Singh, Kanungo as local commissioner. He was directed to inspect the spot and to give report whether there exists any trees within five feet of the common Butt comprising of Khasra Nos. 27/12, 10/2, 11/2 and 20/1 owned by the judgment debtor and Khasra Nos. 27/1/, 10/2, 11/2 and 20/2 owned by the decree holder. It was further directed that the trees existing within five feet of the common Butt be got uprooted. It is this order of the executing court which is under challenge in this revision petition.

Learned counsel for the respondent has not put in appearance.

Learned counsel for the petitioner submitted that the executing court exceeded its jurisdiction in directing the local commissioner to uproot the trees which were standing within five feet of the joint Butt between the lands of the parties. According to the learned counsel, suit was decreed only for pruning the branches of the trees so as to avoid any damage to the crops of the plaintiffs. The court decreeing the suit never ordered uprooting of the trees standing within five feet of the joint Butt between the land of the parties.

I have considered the matter and have perused the decree passed by the Court decreeing the suit. The operative part of the decree has been reproduced in the earlier part of the order. The suit was decreed for mandatory injunction in favour of the plaintiff by directing the defendant to prune the over hanging branches of the trees standing on the joint boundaries of the land of the parties so as to avoid falling of shade on the crops standing in the land of the plaintiff. It was also directed that the defendant would keep pruned the trees standing on the joint Butt and the trees standing in his own land in such a manner that shade of the trees would not cause any undue loss to the crops of the plaintiff. Suit was never decreed that the trees standing within five feet of the common boundary area should be uprooted. It is not brought out by the executing Court in its order as to how it had directed uprooting of the trees when there was no direction in the decree to that effect passed in the suit and which decree was the subject matter of the execution proceedings. The executing court, in my opinion, can execute the decree as it is and it cannot alter or modify the terms of the decree. The executing court by directing the uprooting of the trees standing within 5 feet of the joint boundary of the parties has gone beyond the decree passed in favour of the decree-holder. It could by appointing a local commissioner direct pruning of the branches of the trees standing within five feet of the boundary line or get the trees pruned by directing the defendant-judgment debtor to do so.

In view of the above, I modify the order of the executing Court only to the extent that appointment of the local commissioner shall stand for the purpose of pruning the trees so as to avoid falling of shade on the crops of the plaintiff-decree holder and set aside that part of the order of the executing Court whereby it had directed the uprooting of the trees. Revision petition is disposed of in these terms. No costs.