Amar Singh Deceased Through Lrs ... vs Rohtash And Others
2022 Latest Caselaw 13856 P&H

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                            102                                    CR No.7943 of 2019
                                                                   Reserved on : 29.10.2022
                                                                   Date of Decision: 01.11.2022


                            Amar Singh (deceased) through his LRs and Others                  ....Petitioners

                                                              VERSUS

                            Rohtash and Others                                              ....Respondents

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :   Mr. Mahendra Singh Tewatia, Advocate for the petitioners.

                            ALKA SARIN, J.

The present revision petition has been preferred under Article

227 of the Constitution of India for setting aside the order dated 27.07.2018

(Annexure P-4) passed by the Civil Judge (Junior Division), Palwal vide

which the application of the DH/petitioners under Order XXI Rule 32 of the

Code of Civil Procedure, 1908 (for short 'CPC') has been dismissed and the

objections filed by the JD/respondents have been allowed.

The brief facts relevant to the present lis are that a suit was filed

by the DH/petitioners claiming themselves to be co-owners along with

defendant-respondent no.1 in khatauni no.468, rectangle no.104, killa no.4/2,

total measuring 1 kanal 15 marlas situated within the revenue estate of

village Prithla, Tehsil and District Palwal (hereinafter referred to as the

'property in dispute'). The property in dispute was agricultural land and has

not been partitioned by metes and bounds. Vide judgment and decree dated

05.10.2011 the suit was decreed and the defendants therein were restrained

from raising construction over the property in dispute. An appeal was

preferred against the judgment and decree which appeal was eventually JITENDER KUMAR 2022.11.01 11:27 I attest to the accuracy and withdrawn by the defendants on 01.03.2014. An application was filed by the integrity of this order/judgment.

Chandigarh

DH/petitioners under Order XXI Rule 32 CPC for initiating contempt

proceedings against the defendant-respondents and for executing the

judgment and decree dated 05.10.2011. It was averred in the application that

defendant-respondent no.2 along with other respondent nos.3 to 6 and 7 and

8 had conspired with each other and constructed a new boundary wall

illegally, unlawfully and forcibly. A reply was filed to the said application.

On the basis of the pleadings of the parties, the following issues were

framed:

1. Whether the judgment-debtor has disobeyed the

Judgment and decree dated 05.10.2011 ? OPA

2. Whether the application is not maintainable ? OPR

The Executing Court held that there was no evidence of any

disobedience and violation of judgment and decree dated 05.10.2011 on the

part of the respondents and that there was further no evidence to show that

there has been any construction of a new boundary wall as alleged. Vide the

impugned order dated 27.07.2018, the execution petition was dismissed.

Aggrieved by the said order, the present revision petition has been filed.

Learned counsel for the DH/petitioners would contend that

there was ample evidence on the record to show that the wall has been

constructed in violation of the judgment and decree dated 05.10.2011. In

support of his argument, learned counsel for the DH/petitioners has referred

to photographs Ex.AW1/A to Ex.AW1/E and receipts of photographs

Ex.AW1/F to Ex.AW1/H.

Heard.

In the present case the DH/petitioners had filed an execution

petition under Order XXI Rule 32 CPC alleging therein violation and JITENDER KUMAR 2022.11.01 11:27 I attest to the accuracy and integrity of this order/judgment.

Chandigarh

disobedience of the judgment and decree dated 05.10.2011 and for execution

thereof. The only evidence led by the DH/petitioners regarding the alleged

construction were photographs Ex.AW1/A to Ex.AW1/E and receipts of

photographs Ex.AW1/F to Ex.AW/H. A perusal of the impugned order

reveals that the witness, AW1 Hemraj, had tendered the photographs

Ex.AW1/A to Ex.AW1/E purported to have been taken on 01.04.2012 and

11.04.2012, and also placed on record the receipts of the said photographs as

Ex.AW1/F to Ex.AW1/H. However, in his cross-examination the said

witness was unable to explain as to how bill no.2139 bears the date

'11.04.2012' whereas bill no.2130 bears the date '03.05.2012'. It was also

noticed that there was no stamp or any other mark over the bill which could

sanctify or denote the preparation of the said photographs by Love Photo

Studio. It is further an admitted case that the JD/respondents had been in

possession of the property in dispute for a long time. In the judgment and

decree dated 05.10.2011 it was specifically noticed that the property in

dispute is bounded by a boundary wall. The finding returned by the Trial

Court is reproduced as under :

"20. In this case the defendant no.2 has failed to show

his status in which he is holding the suit property. The

limited relief of plaintiffs is that the defendants be

restrained from raising construction over the suit

property. In the instant case also if the defendant no.2

raised construction over the suit property then it will

certainly prejudice the rights of the plaintiffs. No doubt

it has come in evidence that the suit property has been

bounded by a boundary wall, meaning thereby it is not JITENDER KUMAR 2022.11.01 11:27 I attest to the accuracy and an ordinary agricultural by filed but is some valuable integrity of this order/judgment.

Chandigarh

place of land. If a person who has no right, title or

interest in the suit property and is bent upon to raise

construction over the same, any co-sharer can say what

as unauthorized occupant is doing is a wrong and he

has every right to seek injunction against that person.

In this case also in this sense the plaintiffs are certainly

entitled to injunction restraining the defendants from

raising construction over the suit property."

In view of the above and in view of the fact that there is no

evidence on the record that there is any fresh construction of the boundary

wall, the impugned order passed by the Executing Court cannot be faulted

with. The present revision petition, being devoid of any merit, is accordingly

dismissed. Pending applications, if any, also stand disposed off.

Dismissed.

                                                                                        ( ALKA SARIN )
                            01.11.2022                                                      JUDGE
                            jk

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

JITENDER KUMAR 2022.11.01 11:27 I attest to the accuracy and integrity of this order/judgment.

Chandigarh