Punjab-Haryana High Court
Sarabjit Singh & Anr vs Municipal Committee Mukerian & Ors on 28 March, 2025
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2025:PHHC:042787
ESA-62-2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
112
ESA-62-2013 (O&M)
Date of decision: 28.03.2025
SARABJIT SINGH & ANR ..Appellants
Versus
MUNICIPAL COMMITTEE MUKERIAN & ORS ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Ms. Satpreet Grewal Kapila, Advocate (through v.c.)
for the appellants.
Ms. Jarnail Kaur Dhaliwal, Advocate
for respondent No.1.
Mr. Anil Bansal, DAG, Punjab
for respondent No.8
ANIL KSHETARPAL, J(Oral)
1. The appellants herein have carved out a colony by selling plots,
and in between a passage was left for public usage. Subsequently, they
dishonestly filed a suit against the Municipal Committee claiming ownership
of the passage, which is comprised in Khasra no.187. The suit was decreed.
When they filed the execution petition, the objections were filed not only by
the Public Works Department, Punjab, but also by the purchasers. They
claimed that this was the passage left by the appellants while carving out the
colony. Both the Courts dismissed the execution petition. The Appellate
Court recorded the following findings of fact:-
"30. Admittedly, Khasra No.187 is owned by Decree
Holder and Shamlat Deh which measures 14 kanals 2
marlas and is Ghair Mumkin Rasta and this fact has been
proved from copy of jamabándi for the year 2000-01 Ex.
DH/1 and Ex. DH/2. Further from the perusal of the Aks
Shajra Ex. DH/3 it is clear that Khasra No. 187 is
abutting to Khasra No. 192 as has been mentioned in the
jamabandi for the year 2005-06 Ex.DH/4 and Ex.DH/S
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and site plans Ex.DHW3/A and Ex. DHW3/B. There are
photographs Mark DX2 1o DX-22 on the file which
shows the road, shops and residential houses abutting to
the road falling in Khasra No. 192. The other objectors
have also proved sale deeds executed on different dates
either by Decree Holder or by the vendors of the decree
holder. Perusal of sale deeds on the file shows that when
boundaries of the plots sold were marked in the sale
deeds specifically on one side, the decree holder has
shown passage which admittedly falls in Khasra No. 192.
The decree holders are not claiming that in fact they sold
Khasra No. 187 in parts to the persons who have
purchased the property from them have not constructed
their shops or residential house son the property sold to
them but they have constructed the same on different
places. Decree Holders have failed to place on record any
evidence to show that passage in dispute which falls in
Kh.No. 187 hit been got constructed by the Municipal
Council Mukerian or the Municipal Council is repairing
the same from time to time PWD Department has proved
on the file documents Ex. 01 to Ex.07 which shows that
road in dispute was constructed by PWD department
since long and people are using the same. The decree
holders claimed that executing court can not go beyond
the decree and to execute the same as it is. No doubt, this
plea of decree holder is correct to the extent that
executing court can not go behind the decree however
there are exceptions to this fundamental right. If a decree
can not be executed against the person against whom it
has been passed, then doctrine of lifting veil is applicable
and the said principle can always be applied by the court
behind the decree and intention of the court while passing
such decree. In the present case, this decree has been
passed against M.C. Mukerian for possession of land
measuring 1 kanal 18 marlas being part of Khasra
No.187 and then in the present execution when the MC
Mukerian filed objections and same were head by learned
lower court and vide order dated 15.3.99 passed by the
court, it was held that PWD Department not being a
party to the judgment and decree under execution would
not in any manner be effected by anything said and done
in that judgment or in the execution. Municipal committee
is proved to be in possession as owner of property in
dispute and decree can be executed against M.C.
Mukerian and not against PWD Department. The
objections have proved on record that passage in Khasra
No. 192 belongs to PWD Department and MC Mukerian
has no concern with the same and there to construction of
shops and residential houses on both the Sides of said
passage. The decree holders have failed to proved on
record that objectors have not raised constructionist of
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ESA-62-2013 (O&M) -3-
their shops and residential houses at some other places
and not on the places purchased by them. On the one
hand decree holder is claiming that private objectors
have constructed their properties at different places then
purchased and therefore they have encroached upon
different land of decree holders and on the other hand,
the decree holders claimed in the suit that MC Mukerian
has encroached upon khasra No. 187. The Decree holders
must specifically plead and prove that which area is in
the illegal possession of which person and thereafter the
decree holder can get possession in this execution. The
case laws citied by learned counsel for the respondents
are applicable to the facts of the case in hand. As such,
no ground is made out to interfere in the findings of
learned lower court on issues No. 1, 2, 3, 3A, 3B, 3C and
4 therefore findings of learned lower court on these issues
are affirmed."
2. Learned counsel for the parties have been heard at length.
3. Learned counsel for the appellants submits that there is a decree,
which is required to be implemented. Admittedly, in the aforesaid decree,
neither the purchasers to whom the plots were sold were made a party nor
the government was made a party.
4. A perusal of Ex.DHW3/A, a layout plan proves that a
passage/road was left in order to give access to the shops, which were carved
out by the appellants.
5. Consequently, the appeal filed by the appellants is dismissed
with cost of Rs.1,00,000/-, which shall be liable to be recovered as land
revenue.
6. All the pending miscellaneous applications, if any, are also
disposed of.
March 28th, 2025 (ANIL KSHETARPAL)
Ayub JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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