Nazir Ahmed vs Maqbool Ahmed
2023 Latest Caselaw 1007 j&K

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                   LADAKH AT JAMMU


                                      CR No. 32/2016


                                              Reserved on: 09.05.2023
                                            Pronounced on: 18.05.2023

Nazir Ahmed

                                      ...petitioners
                         Through: - Mr.Rahul Pant Sr. Advocate with
                         Ms. Aarushi Shukla Advocate


Vs.

Maqbool Ahmed

                                      ...respondents
                         Through: -   Mr. L.K.Sharma Sr. Advocate with
                         Mr. Deepak Khajuria Advocate.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                               JUDGMENT

1) Through the medium of instant revision petition, the petitioner

has called in question order dated 05.09.2016 passed by the learned

Sub-Judge, Bhaderwah whereby the petitioner/judgment debtor has

been directed to hand over the possession of encroached land to the

respondent/decree holder.

2) It appears that the respondent/decree holder had filed a suit for

declaration with permanent prohibitory injunction with respect to land

measuring 01 kanal, 06 marlas falling in khasra No. 1294 min situated

at Nagar Bhaderwah against the petitioner/judgment debtor and one

Sh. Mehboob Ahmed. In the plaint, it was averred by the

respondent/decree holder that he is owner in possession of the suit land

and that the petitioner/judgment debtor has no right or title over the

land in question. It was further pleaded that the petitioner/judgment

debtor, under the garb of a false revenue entry, is trying to encroach

upon the suit land.

3) The petitioner/judgement debtor along with co-defendant

Mehboob Ahmed filed a joint written statement in which they admitted

that the respondent/decree holder is owner in possession of the suit

land. It was submitted that the co-defendant is in possession of land

measuring 04 marlas of State land falling in khasra No. 1294 and that

the respondent/decree holder, without any right or authority, is bent

upon to interfere in the peaceful possession of co-defendant over the

said land. The petitioner/judgment debtor and co-defendant denied that

they are encroaching upon the suit land and claimed that they are in

possession of 04 marlas of land falling in khasra No. 1294. It was

further claimed that the land in possession of the petitioner/judgment

debtor and co-defendant and the land in possession of the

respondent/decree holder is duly demarcated and fenced and that the

co-defendant has planted trees over there for the last more than 20

years. Along with their written statement, the petitioner/judgment

debtor along with co-defendant raised a counter claim seeking an

injunction against the respondent/decree holder herein restraining him

from interfering in their possession over land measuring 04 marlas

falling in khasra No. 1294.

4) The learned trial Court, vide its judgment and order dated

18.03.2009, on the basis of pleadings of the parties and preliminary

statements made by the petitioner/judgment debtor as also his counsel,

observed that the parties are not at dispute and, accordingly, on the

basis of admission made by him, a decree came to be passed whereby

the petitioner/judgment debtor and co-defendant have been restrained

by way of a permanent prohibitory injunction from causing any sort of

interference over the suit land.

5) It seems that the respondent/decree holder filed an execution

petition on 21.11.2010 before the trial Court seeking execution of the

judgment and decree passed by the trial Court. In the said execution

petition, it was claimed by the respondent/decree holder that the

petitioner/judgment debtor has forcibly encroached upon the suit land.

According to the decree holder, the site plan produced by the

judgement debtors before the trial Court depicts the dimensions of land

in possession of judgment debtors as 34ft x 30ft and the land of decree

holder is shown towards its northern side. It was claimed by the decree

holder that the judgment debtors have encroached upon the suit land by

extending the plinth of their house towards the northern side. It was

prayed that the land, that has been encroached by the

petitioner/judgment debtor, may be got evicted and handed over to the

respondent/decree holder.

6) The petitioner/judgment debtor filed objections to the execution

petition claiming therein that, on the basis of an application dated

13.02.2010 presented by the respondent/decree holder, Tehsildar

Bhaderwah has conducted demarcation of the land in question and as

per his report, no encroachment was found over the suit land.

7) The learned Executing Court, vide its order dated 29.04.2015

observed that while the respondent/decree holder by placing reliance

upon certain documents claimed that the petitioner/judgment debtor has

made encroachment on the suit land, on the other hand, the

petitioner/judgment debtor has specifically denied the same and, as

such, the parties should be given an opportunity to lead evidence in

support of their respective pleas. Accordingly, the learned Executing

Court asked the parties to lead evidence in support of their respective

contentions. In pursuance of the aforesaid order, both the parties led

their evidence in support of their respective contentions and they also

cross-examined the witnesses produced by them.

8) After appreciating the evidence led by the parties and after

hearing them, the learned Executing Court, vide the impugned order

directed the petitioner/judgment debtor to hand over possession of the

encroached land to the respondent/decree holder. While arriving at such

conclusion, the learned Executing Court, on the basis of evidence on

record, observed that the petitioner/judgment debtor has been found in

possession of land in excess of what he had claimed in his written

statement filed before the trial Court.

9) The petitioner/judgment debtor has challenged the impugned

order on the ground that the Executing Court has travelled beyond the

scope of the decree and has converted the execution petition into a suit

for possession. It has been submitted that, as per the report of revenue

agencies and the evidence led before the Executing Court, the

respective portions of land in possession of the parties are specifically

demarcated and there are trees standing in between the two portions of

the land for the last more than 20 years, meaning thereby that the land

that was found to be in possession of the petitioner/judgment debtor

was so even before filing of the suit. On this basis, it has been claimed

by the petitioner/judgment debtor that the only option available with

the respondent/decree holder was to file a suit for possession against

the petitioner/judgment debtor.

10) Per contra, the respondent/decree holder has claimed that the

petitioner/judgment debtor while filing his written statement had

admitted that he is in possession of land measuring 04 marlas falling in

khasra No. 1294 and he has also admitted that the respondent/decree

holder was in possession of 1 kanal 06 marlas in the said khasra

number, but, as per the evidence led by the parties, the

respondent/decree holder has been found to be in possession of 19

marlas of land, whereas the petitioner/judgment debtor has been found

to be in possession of 09 marlas of land which clearly shows that he has

encroached upon the land that was in possession of the

respondent/decree holder at the time of filing of the suit. Thus,

according to the respondent/decree holder, the petitioner/judgment

debtor is under an obligation to hand over the encroached portion of the

land to the decree holder/respondent herein.

11) I have heard learned counsel for the parties and perused the

record including the record of the Executing Court.

12) As per the pleadings filed by the parties before the trial Court,

the respondent/decree holder was in possession 01 kanal,06 marlas of

land falling in khasra No. 1294 situated at Nagar Bhaderwah, whereas

the petitioner/judgment debtor was in possession of 04 marlas of land

falling in the same khasra number. This position has been admitted by

the parties in their pleadings before the trial Court and on the basis of

admission, the decree, which is subject matter of the execution petition,

was passed by the trial Court.

13) The petitioner/judgment debtor claims that as per the evidence

on record, he has not encroached upon any portion of the land

belonging to the respondent/decree holder. In this regard, the

petitioner/judgment debtor has referred to and has relied upon the

statements and reports of the revenue officers who have stated that

there is no encroachment on spot and that the land belonging to the

parties is properly demarcated with trees standing over there for the last

more than 20 years.

14) The respondent/decree holder, on the other hand, has relied upon

the site plan of the land in his possession filed by the

petitioner/judgment debtor before the trial Court along with his written

statement. As per this site plan, the petitioner/debtor has proposed to

construct his residential house on the land which is in his possession

having dimensions 34ft x 30ft. In the said site plan, a nallah is located

towards the western side of the land, towards the eastern side, it is

bound by a lane and towards southern side, there is a link road. On the

northern side of the plot of judgment debtor, the land belonging to the

respondent/ decree holder is shown in the site plan.

15) It has come in the evidence on record that the

petitioner/judgment debtor is in possession of 09 marlas of land falling

in khasra no. 1294, whereas the respondent/decree holder is in

possession of 19 marlas of land in the said khasra number. The

admitted position at the time of filing of the suit was that the

petitioner/judgment debtor was in possession of 04 marlas of land in

khasra no. 1294, whereas the respondent was in possession of 01 kanal

06 marlas of land. This clearly shows that encroachment of the land of

respondent/decree holder has taken place and the excess land is in

possession of the judgment debtor. Having regard to the situation of

plot of land belonging to the petitioner/judgment debtor as discussed

hereinbefore, the only possibility for enhancement/ extension of land

belonging to the petitioner/judgement debtor from 04 marlas to 09

marlas is towards the northern side where the land belonging to the

plaintiff/decree holder is situated. Having regard to the fact that the

plaintiff/decree holder is shown to be in possession of only 19 malras

of land instead of 01 kanal 06 marlas at the time of filing of the suit, it

appears that the judgment debtors have encroached upon his land.

16) The High Court while exercising its revisional jurisdiction

cannot re-examine or reassess the evidence on record and substitute its

own findings on facts for those of the subordinate court. The Supreme

Court in the case of Manick Chandra Nandy vs Debdas Nandy And

Ors (1986) 1 SCC 512 has explained the scope of revisonal powers of

High Court under section 115 of CPC in the following manner:

"We are constrained to observe that the approach adopted by the High Court in dealing with the two revisional applications was one not warranted by law. The High Court treated these two applications as if they were first appeals and not applications invoking its jurisdiction Under Section 115 of the CPC. The nature, quality and extent of appellate jurisdiction being exercised in first appeal and of revisional jurisdiction are very different. The limits of revisional jurisdiction are prescribed and its boundaries defined by Section 115 of the CPC. Under that section revisional jurisdiction is to be exercised by the High Court in a case in which no appeal lies to it from the decision of a subordinate court if it appears to it that the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. While in a first appeal the court is free to decide all questions of law and fact which arise in the case, in the exercise of its revisional jurisdiction the High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts for those of the subordinate court"

17 From the foregoing analysis of the legal position, it is clear

that the exercise of revisional jurisdiction is only confined to questions

of jurisdiction and that the High Court cannot reexamine or reassess the

evidence on record and substitute its own findings of facts for those of

the Subordinate Court.

18 Coming to the facts of the instant case, as already noticed

hereinbefore, there is no doubt that the evidence on record shows that

there is a definite demarcation of the respective portions of land in

possession of the parties and it also appears that the said demarcation is

not of recent origin, but then, the petitioner/judgment debtor has

specifically admitted in the written statement before the trial Court that

he is only in possession of four marlas of land falling in khasra No.

1294 and, at the same time, as per the evidence led before the

Executing Court, presently he is in possession of 09 marlas of land in

the said khasra number, meaning thereby that he is in possession of 05

marlas of excess land in the said khsara number. It has also come in the

evidence on record led before the Executing Court that the

respondent/decree holder is in possession of only 19 marlas of land in

kahsra No. 1294 as against 01 kanal 06 marlas which was the admitted

position at the time of filing of the suit, meaning thereby that he is in

possession of land, which is less by 07 marlas. The site plan of plot of

the petitioner/judgment debtor placed on record of the trial Court shows

that the only scope for encroachment of land by him is towards the plot

of land belonging to the respondent/decree holder. In the face of these

established facts on record, the view taken by the Executing Court that

the petitioner/judgment debtor has encroached upon the land belonging

to the respondent/decree holder appears to be plausible and cannot be

termed as 'erroneous'. The said view of the Executing Court, as such,

cannot be interfered with while exercising revisional jurisdiction.

19 For the foregoing discussion, I do not find that the

Executing Court has either exercised its jurisdiction in an illegal

manner or it has committed any irregularity in exercise of its

jurisdiction. The impugned order passed by the learned Executing

Court, thus, calls for no interference by this court. The petition lacks

merit and is, dismissed, accordingly.

Record of the Court below along with a copy of this

judgment be sent back.

(Sanjay Dhar) Judge

Jammu 18 .05.2023 "Sanjeev, PS"

                Whether the order is speaking:     Yes
                Whether the order is reportable:   Yes