Punjab-Haryana High Court
Bimla And Anr vs Munish on 25 January, 2023
In the High Court of Punjab and Haryana at Chandigarh
102 CR-4355-2017 (O & M)
Date of Decision: January 25, 2023
BIMLA AND ANR .....PETITIONERS
VERSUS
MUNISH ....RESPONDENT
CORAM: HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present: Mr. Vijay Kumar Jindal, Senior Advocate with
Mr. Kshitij Sharma, Advocate for the petitioners.
Mr. Manoj Kaushik, Advocate for the respondent.
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ANUPINDER SINGH GREWAL, J (ORAL)
Learned counsel for the petitioners submits that the Executing
Court has gone beyond the decree by ordering the removal of encroachment in
southern and western direction to the extent of 03 feet each in both the
directions, although it was not so specified in the decree.
A Coordinate Bench of this Court had passed the following order
on 29.11.2022:-
"The petitioners herein are the judgment debtors. In
a suit filed by the respondent-Sh.Munish, a neighbour, for
the grant of permanent and mandatory injunction
complaining encroachment in the public street, the First
Appellate Court held that the defendants have dug the
foundation at least upto 3 feet in the said street. The
operative part of the findings of the First Appellate Court
are extracted as under:-
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CR-4355-2017 (O & M) -2-
"He has also been able to prove that the
defendants have dug the foundation at least
upto three feet in the said street and thus, he is
clearly entitled for the relief of permanent as
well as mandatory injunction against the
defendants."
Though, in the regular second appeal, filed by the
petitioner some observations with regard to the width of
street have come, however, the appeal was dismissed.
There is a dispute with regard to the extent of
encroachment made by the petitioners. There are two streets
on Southern and Western sides of the petitioners' house.
The First Appellate Court while decreeing the suit, has
observed that the petitioners have dug the foundation at
least upto 3 feet in the said street. However, there is no
clarity as to "Whether the aforesaid 3 feet encroachment is
in the street located towards the Western or the Southern
sides or on both the sides of the petitioners' house?" Hence,
let the trial Court record, in original, be requisitioned for
05.12.2022, through a Special Messenger on the charges to
be deposited by the petitioners."
In pursuance to the previous order, lower Court record has been
received. A perusal of the site plan (Ex.P-3) indicates that the portion, which is
marked yellow ABCD is on the western side and the alleged encroachment is
stated to have been carried out in this portion.
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CR-4355-2017 (O & M) -3-
Site plan (Ex.P-3) has been shown to the counsel for the
respondent/decree-holder who states that the portion in the site plan which has
been coloured 'yellow' is on the western side of the petitioners' house. In the
decree, it had been specified that the encroachment with regard to 'yellow'
portion to the extent of 03 feet would be cleared.
Consequently, the petition is partly allowed and the impugned
order (Annexure P-5) is set aside to the extent that the petitioner/judgment-
debtor shall clear the encroachment on the western side as coloured 'yellow' in
the site plan within a period of one month.
Learned counsel for the petitioner undertakes that the
encroachment on the western side as coloured 'yellow' in the site plan to the
extent of 03 feet shall be cleared within a period of 03 months.
(ANUPINDER SINGH GREWAL)
JUDGE
January 25, 2023
A.Kaundal
Whether speaking/ reasoned : Yes/No
Whether Reportable : Yes/No
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