Punjab-Haryana High Court
Ramesh Kumar vs Hoshiyar Singh on 16 October, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
116 CR-2414-2024 (O&M)
Date of Decision : 16.10.2024
Ramesh Kumar ....Petitioner
VERSUS
Hoshiyar Singh ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. P.R. Yadav, Advocate for the petitioner.
ALKA SARIN, J. (Oral)
1. Present revision petition has been preferred by the plaintiff-
petitioner challenging the order dated 29.01.2024 whereby the execution
application filed by the plaintiff-petitioner herein has been dismissed.
2. The brief facts relevant to the present lis are that the plaintiff-
petitioner filed a suit for permanent injunction to the effect that the
defendant-respondent herein be not permitted to forcibly take possession of
the land comprised in Khewat No.51, Khatauni No.59, Mustil and Killa
No.35//5/1/2 measuring 0 Kanal 14 Marlas situated in village Khayra, Tehsil
and District Mahendergarh as per Jamabandi for the yar 2006-07 allotted to
him in partition proceedings on 02.07.2012 and also from raising
construction of any type by taking forcible possession. During the pendency
of the civil suit a Local Commissioner was appointed who gave his report on
28.12.2012 wherein he clearly stated that on the eastern side of the disputed
land from Mark A to Mark B a wall measuring 69 ft. long and 1.5 ft. in
height had been constructed and from Mark B to Mark C upto the level of
land after digging foundation 30 ft. construction has been made with the
bricks and the work of construction was going on. The suit was decreed vide
judgment and decree dated 09.09.2016 and the defendant-respondent was
permanently restrained from interfering in the peaceful possession of the
plaintiff-petitioner by raising construction after taking forcible possession of
the suit land except in due course of law. An appeal was preferred by the
defendant-respondent which appeal was dismissed vide judgment and decree
dated 07.04.2017. Subsequently, an undated application was filed under
Order XXI Rule 32 read with Section 151 of the Code of Civil Procedure,
1908. In the said application, a Local Commissioner was appointed who
gave his report on 13.09.2023 (Annexure P-12). Vide the impugned order
dated 29.01.2024 the said application was dismissed holding that the
plaintiff-petitioner had failed to prove his case for issuance of warrants of
possession with respect to the suit plot against the JD (respondent herein).
Hence, the present revision petition.
3. Learned counsel for the plaintiff-petitioner would contend that
the construction had been raised after the passing of the judgment and decree
dated 09.09.2016 and hence the application ought not to have been
dismissed. It is further the contention that the defendant-respondent was
restrained from raising any construction and by raising a wall he has violated
the judgment and decree dated 09.09.2016. It has further been contended that
even if only a decree for permanent injunction has been passed the same
would suffice for ordering demolition of the wall. Further reliance has been
placed on the judgment in Kailash Chand Mittal vs Tirath Parkash Mittal
and Others [2010(17) R.C.R (Civil) 940].
4. Heard.
5. In the present case a suit for permanent injunction was filed
which was decreed vide judgment and decree dated 09.09.2016. Aggrieved
by the same, an appeal filed by the defendant-respondent was also dismissed
vide judgment and decree dated 07.04.2017. The application filed by the
plaintiff-petitioner under Order XXI Rule 32 CPC was dismissed vide
impugned order dated 29.01.2024. The argument of learned counsel for the
plaintiff-petitioner that the judgment-debtor (respondent herein) had carried
out the construction after the passing of the judgment and decree dated
09.09.2016 deserves to be rejected inasmuch as the Executing Court on the
basis of the evidence has held that not an iota of evidence was produced by
the plaintiff-petitioner that the construction over the suit property was made
after the passing of the judgment and decree. The application itself is totally
bereft of any details regarding the date, time, month and year when the
alleged encroachment is stated to have been carried out by the defendant-
respondent (judgment-debtor). Though in the application for execution it
was averred that there was a tin-shed which has been placed by the
defendant-respondent, however, the Local Commissioner in his report dated
13.09.2023 found that there was no tin-shed on the plot as alleged by the
plaintiff-petitioner (decree-holder). The plaintiff-petitioner himself suffered
a statement on 18.09.2023 that he was in possession of the vacant plot. The
Executing Court held that the plaintiff-petitioner has failed to prove that the
wall was constructed after the passing of the judgment and decree dated
09.09.2016. Even before this Court learned counsel for the plaintiff-
petitioner is unable to point out to any evidence having been led by the
plaintiff-petitioner to show as to the date, time, month and year when the
alleged encroachment is stated to have been carried out. The decree itself
was simpliciter for permanent injunction. The argument of learned counsel
for the plaintiff-petitioner that the construction was carried out during the
pendency of the suit and even if a simpliciter decree for permanent
injunction has been passed the demolition of the wall can be ordered,
deserves to be rejected as learned counsel for the plaintiff-petitioner has
been unable to point out to any reference in the impugned judgment and
decree dated 09.09.2016 passed by the Trial Court regarding the existence of
the wall. The judgement in the case of Kailash Chand Mittal (supra) would
be of no help to the petitioner in the absence of any evidence to even
remotely suggest that the wall was built after the passing of the decree.
6. In view of the above, I do not find any merits in the present
revision petition and the same being devoid of any merit is accordingly
dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN )
16.10.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
