E. S. A. No. 15 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : E. S. A. No. 15 of 2011 (O&M) Date of Decision : June 01, 2011 Kaptan and another .... Appellants Vs. Balwan Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Alok Jain, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 6911-C of 2011 : Allowed as prayed for. Main Appeal : Objectors Kaptan and Ram Chand, having failed in both the courts below, have filed the instant second appeal. Suit filed by Hukam Chand – original plaintiff (since deceased and represented by respondents no.1 to 3 herein as his legal representatives) was dismissed by the trial court, but was decreed by first appellate court directing defendant no.1 – Gram Panchayat (respondent no.4 herein) to E. S. A. No. 15 of 2011 (O&M) 2 remove encroachment from the land of the plaintiff. Accordingly, respondents 1 to 3 filed execution petition for execution of the said decree. Appellants herein filed objections in the execution petition alleging that the decree-holders, by taking undue benefit of the decree sought to be executed, want to take possession of public street lying in front of their house. The disputed land is not part of plot of the decree-holders. If possession to the extent of 9' width is given to the decree-holders, width of the street would be reduced from 16½' and the entire village would suffer. Decree-holders resisted the objections and inter alia pleaded that the question of encroachment has already been adjudicated upon in first appeal, in which the decree was passed. Learned Executing Court i.e. learned Civil Judge (Junior Division), Sonepat, vide impugned order dated 04.06.2010, dismissed the objections preferred by the appellants herein. First appeal preferred by the Objectors against the said order has also been dismissed by learned Additional District Judge, Sonepat, vide impugned judgment dated 17.05.2011. Feeling aggrieved, Objectors have filed the instant Execution Second Appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that the lower appellate court, while decreeing the suit of respondents no.1 to 3, E. S. A. No. 15 of 2011 (O&M) 3 wrongly relied on order passed by Collector in proceedings under the Punjab Village Common Lands (Regulations) Act, 1961 (in short – the Act). The contention cannot be accepted. Decree passed by the first appellate court, which is sought to be executed, has not been set aside by any Court. The said decree is, therefore, executable. The Executing Court, in execution proceedings, cannot adjudicate upon the question whether the said decree was passed on wrong or proper appreciation of evidence. This cannot be within the domain of the Executing Court. If the same issue has to be decided again by the Executing Court, it would mean that the Executing Court would sit over the finding of the first appellate court, which has already attained finality. The Executing Court has no jurisdiction to determine whether finding in the judgment and decree is based on wrong appreciation of evidence. The entire basis of the contention raised by counsel for the appellants is completely fallacious, misconceived and meritless. Learned counsel for the appellants, relying on a judgment of Hon'ble Supreme Court in the case of Gram Panchayat of Village Naulakha vs. Ujagar Singh reported as 2000 (4) R. C. R. (Civil) 749, contended that possession of part of the public street is sought to be taken by the decree-holders in execution of the decree and this cannot be permitted. The contention is again devoid of force. In case of Gram E. S. A. No. 15 of 2011 (O&M) 4 Panchayat of Village Naulakha vs. Ujagar Singh (supra), decree passed against the Gram Panchayat was found to be collusive. In the instant case, however, the appellants/Objectors have not even alleged in their objections that the decree sought to be executed is collusive. Accordingly, the aforesaid judgment is not applicable to the facts of the instant case. For the reasons aforesaid, I find no merit in the instant second appeal. Objections preferred by the appellants have been rightly dismissed by the courts below. The appeal is accordingly dismissed in limine. June 01, 2011 ( L. N. MITTAL ) monika JUDGE