Smt. Bimla Devi and Another vs Sat Parkash and Others

L.N. Mittal, J.—Suit was filed by the petitioners against respondents, who made counter-claim in the suit. The suit as well as counter-claim was dismissed by the trial court vide judgment and decree dated 13.03.2002 (Annexure P-2). However, first appeals preferred by both the parties have been partly allowed by learned lower appellate court, vide judgment and decree dated 05.11.2003 (Annexure P-3), to the following effect:-

Resultantly, both the appeals are partly allowed thereby setting aside the impugned judgment and decree of the trial court to the extent the same relate to dismissal of entire suit as well as entire counter claim and the defendants are restrained from interfering in the right of the plaintiffs to raise construction on the property bearing khasra numbers 1779 and 1780 which they had purchased vide sale deed Ex.PW5/1 whereas the plaintiffs are restrained from encroaching upon any portion of passage abutting towards southern side of their property. Both the parties are further restrained from making any construction or encroachment on the property belonging to the other or even on the vacant land existing between their respective properties. Parties are left to bear their own costs. Decree sheet be prepared.

R.S.A. No. 1222 of 2004 preferred by some of the defendants stands dismissed by this Court vide judgment dated 21.01.2008 (Annexure P-4).

Petitioners filed execution petition and moved application (Annexure P-6) for providing police assistance for execution of the decree alleging that respondents were obstructing the raising of construction by the petitioners in their land.

Learned Executing Court, vide order dated 11.05.2012 (Annexure P-7), appointed Naib Tehsildar, Gurgaon as Local Commissioner to demarcate the land and to get the construction removed by police, if required. Local Commissioner was appointed to ensure that the petitioners were raising construction within their own land and were not encroaching upon the rasta. Petitioners filed application (Annexure P-8) for recall of order Annexure P-7. The said application has been dismissed by the Executing Court, vide order dated 05.06.2012 (Annexure P-9). Petitioners have filed this revision petition under Article 227 of the Constitution of India assailing orders Annexures P-7 and P-9 passed by the Executing Court.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioners vehemently contended that in earlier litigation, in which respondents herein preferred C.R. No. 2225 of 1988, out of execution proceedings, passage in dispute had been demarcated from the wall of the petitioners, as mentioned in order 17.09.1990 (Annexure P-1) passed by this Court in said revision petition, and therefore, there is no necessity of fresh demarcation. Counsel for the petitioners also referred to paragraph 13 of judgment (Annexure P-3) passed by the lower appellate court in the instant case, to substantiate the aforesaid contention.

I have carefully considered the matter.

Wall CDE, constructed by the petitioners, was not accepted to be within their land. It was held in judgment Annexure P-3 that the petitioners were not entitled to raise the said wall. Moreover, the instant suit of the petitioners was not decreed with reference to the said demarcation report. The petitioners, in their instant suit, had also depicted their property by letters ABCDE in site plan (Annexure-A) attached with the plaint. However, the suit was also not decreed with reference to the property so depicted in the said site plan. On the contrary, as per judgment and decree of the lower appellate court, the suit was decreed with reference to property bearing khasra nos. 1779 and 1780, as extracted hereinbefore. Consequently, Local Commissioner has been rightly appointed to demarcate the said property of plaintiffs bearing khasra nos. 1779 and 1780 so as to permit the petitioners to raise construction within the said property and also to ensure that the petitioners do not raise any construction outside the said property. It may be mentioned that in addition to the passage, for demarcation whereof, reference has been made to judgment (Annexure P-1) in the previous litigation, there is also some other vacant land belonging to neither the petitioners nor the respondents and both the parties have been restrained from raising any construction or making any encroachment on the said vacant land existing between the properties of the parties. Consequently, mere demarcation of the passage in the previous litigation is not sufficient to execute the instant decree because there is also some other vacant land in addition to the passage, over which neither party has any right. Consequently, petitioners have to be confined to their land bearing khasra nos. 1779 and 1780 and this can be done only by demarcation of the said khasra numbers.

In view of the aforesaid, there was no option with the Executing Court, but to appoint Local Commissioner for demarcation of the petitioners'' land bearing khasra nos. 1779 and 1780. There is, therefore, no infirmity, much less perversity, illegality or jurisdictional error in the impugned order Annexure P-7, passed by the Executing Court or in order Annexure P-9, thereby declining to recall order Annexure P-7. The instant revision petition is thus meritless and is accordingly dismissed. Civil Miscellaneous applications, if any pending, stand disposed of as infructuous.