CR No. 2886 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 2886 of 2009 (O&M) Date of Decision: 9.12.2011 Raman Kohli & Anr. ...Petitioners Vs. Shashi Aggarwal & Anr. ...Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Ms.Abhilasha Kohli, Advocate, with Mr.Vivek Singla, Advocate, for the petitioner. Mr.Himanshu Aggarwal, Advocate, for Mr.C.B.Goel, Advocate. Mr.Sarwan Singh, Sr.Advocate, with Mr.Karan Bhardwaj, Advocate, for respondent No.2. None for intervener. --- A.N.Jindal, J. CM No.6381-CII of 2010 The applicant/intervener remains unrepresented. The application is dismissed. CR No.2886 of 2009 This petition has arisen out of the order dated 23.04.2009 passed by the Civil Judge Yamunanagar at Jagadhri CR No. 2886 of 2009 2 under Order 21 Rule 32 of the Code of Civil Procedure (herein referred as the Code) for removal of the obstruction in the passage used as path, toilets and stair-case by the decree holder pursuant to the decree dated 2.06.2007 passed by the Lok Adalat, Jagadhari. The prime question for determination in the case is “whether the defendants could raise any obstruction by way of installing gate or otherwise, in the passage in violation of the decree dated 2.06.2007?” Factual back ground of the case is that Shashi Aggarwal plaintiff/respondent/decree holder (herein referred as the decree holder) filed a suit for declaration claiming herself to be the owner in possession of Shop No. 8 part of C-6-1528 bearing property No.3073 along with all the rights appurtenant therein i.e. right of common passage, common stair-case and common latrine/toilet under the common stair-case as well as the Chhajja meant for using as passage for coming and going to the roof of the shop in question on the basis of the sale deed dated 27.3.2006 and the defendant had got no right, title or interest in the same with a consequential relief of permanent injunction restraining the defendant herself or her agents employees, servants associates or any other person from demolishing, changing the existing nature of the common passage 28' in width and common stair-case as well as common latrine/toilet under the stair case. The said suit was compromised before the Lok Adalat and following order was passed:- CR No. 2886 of 2009 3 “Present: Shri I.S.Bhatia, Advocate, counsel for plaintiff. Shri K.B.Mehta, Advocate, counsel for defendant. “ The plaintiff has filed the instant suit for declaration of his title on the basis of the sale deed dated 27.3.2006. As per the plaintiff, she has purchased the property from the defendant per registered sale deed dated 27.3.2006 but now the defendant is interfering in her possession and not complying with the terms and conditions laid down in the sale deed. The defendant on the other hand through her counsel had made a statement that she shall be bound by the terms and conditions laid down in the registered sale deed dated 27.3.2006. In view of the undertaking and admission of the defendant, the suit of the plaintiff is hereby decreed. The parties are left to bear their costs. Since the ownership of the plaintiff over the property is not disputed, the defendant is restrained from interfering into the possession of the plaintiff to the suit property and shall also be bound by the terms and conditions laid down in the sale deed dated 27.3.2006. “ Actually, the defendant of the said suit Rama Kumari Chopra (now judgment debtor) was owner of 11 shops and there was a street 28' in between those shops, out of which decree holder purchased shop No.8, whereas her husband purchased shop No.9. There was stair-case and the toilets for use of all the occupants of 11 CR No. 2886 of 2009 4 shops at the end of the street i.e. on the southern side. Sale deed indicates that there is a passage 28' wide towards eastern side and Ram Kumari Chopra gave the following rights to the decree holder while selling shop No.8:- (i) A right to use the passage; (ii) Stair-case which is common to all the shops would be used by him for ingress and egress. (iii) Right to use the toilet constructed under the stair-case and the decree holder (vendee) or any other shop- keeper would have no right to break or close the stair case on the toilet and the decree holder and the other occupants of the shop would have right to go to the Chhajja i.e. shade of the shops and they would not close the passage to the Chhajja and they would have liberty to keep their goods over the Chhajja. The objectors are successors-in-interest of the judgment debtor and they had also purchased four shops along with similar rights from Ram Kumari Chopra, by way of subsequent sale deeds dated 2.7.2007 and 22.10.2007. It would be pertinent to mention here that the objector/petitioner was not sold any part of the passage by Ram Kumari Chopra. At the time of passing of the decree, there was no iron gate in the passage and it was installed by the objector after the purchase of 4 shops, therefore, the decree holder filed execution application under Order 21 Rule 32 of the Code for removal of the CR No. 2886 of 2009 5 obstruction of construction of iron gate in the common passage. The application was opposed by the objectors. They denied having any knowledge about the decree. It was denied that the objectors have locked the common passage or created any obstruction in the smooth use of the passage by the decree holder and claimed that husband of the decree holder had trespassed into their premises, attacked upon Raman Kohli objector and had caused injuries to her gate-man. Consequently a criminal case under sections 148/149//323/325/452/506 IPC was registered vide FIR No. 70 dated 27.2.2008 at Police Station, City Jagadhari. Judgment debtor Ram Kumari Chopra while admitting the sale deed dated 27.3.2006 executed in favour of the decree holder and sale deed dated 22.10.2007 executed in favour of Raman Kohli and Ankush Kohli further admitted that she had specifically got recorded in the sale deeds that stair-case in question along with toilets shall be used by the vendees and owners of shop Nos.8 and 9 i.e. the decree holder shall have the right to have access over the roof of the shops through the stair case. So the recitals in the sale deed dated 22.10.2007 are clearly in the terms of undertaking given by the judgment debtor in Civil Suit No.719 of 2006. She has stated that she never violated the orders passed by the Lok Adalat and she has no objection to the use of toilets and stair-case by the decree holder. After hearing learned counsel for the parties the trial court allowed the application under Order 21 Rule 32 of the Code CR No. 2886 of 2009 6 and directed the objectors/petitioners to remove the iron gate installed in the passage within one month failing which they were ordered to undergo civil prison. Arguments heard. Record perused. There is no denying a fact that the judgment debtor is owner of the shop and she had left a 28' wide passage and also had constructed toilets and a stair-case for use of the occupants of the shopkeepers at the end of the street. Site plan Ex.P.1 has not been denied by any of the parties. It is also not denied that Lok Adalat passed the decree in favour of the decree holder granting relief in terms and conditions as recorded by the judgment debtor in the sale deed dated 27.3.2006. It is also no denying a fact that decree holder is the owner of shop No.8 and her husband is owner of shop No.9 and they had been given right of the use of the passage, the toilets and the staircase as well as Chhajja, by Ram Kumari Chopra judgment debtor. It is also not disputed that the objectors purchased four shops and have installed an iron gate in the street. Admittedly, there was no iron gate at the time of passing the decree and gate was installed after the objectors purchased the shops. It is only contended that since there are no other shops in the property except her own shops, therefore, she had installed this iron gate but that does not amount obstruction in the passage. Further argument of the learned counsel for the petitioners is that they have also purchased passage along with the shops and they have installed an iron gate to protect their own shops from private CR No. 2886 of 2009 7 interference. Sale deeds produced before me by the decree holder dated 27.3.2006 as well as the respondents nowhere indicate that Ram Kumari Chopra had ever sold the passage to the objector. As regards right of sale of passage to Ram Kumari Chopra, it may be observed that since she has already given right of use of stair-case Chhajja and toilets made thereunder to the decree holder, therefore, she could not sell any part of the passage subsequently to the objectors. Further the objectors having stepped into the shoes of the judgment debtor were bound by the decree dated 2.6.2007 whereby the judgment debtor was bound to supply the amenities provided by her to the decree holder by way of sale deed dated 27.3.2006, therefore, the judgment debtor could not install any iron gate for creating obstruction in the passage for free ingress and egress of the decree holder for use of the passage, toilets and the stair-case and the Chhajja. Apparently, iron gate installed in between street adjoining to the shop No.7 and 4 would amount to an obstruction in the passage. Since the right of passage has been given to the decree holder, therefore, the objectors or the judgment debtor could not install the iron gate in the passage. Only installation of iron gate gave rise to a dispute regarding which FIR No.70 dated 27.2.2008 was lodged by the objector. The repeated arguments of the learned counsel for the petitioners has failed to convince the conscience of the court in order to record a finding that the judgment debtor having provided CR No. 2886 of 2009 8 some amenities to the decree holder could subsequently withdraw the same. The judgment debtor could not sell the passage, the right of use of which has already been given to the decree holder and that the decree holder never sold the passage along with the shops Nos. 4, 5, 6 and 7 to the objector. Rather the judgment debtor has specifically stated that she never sold the passage to the objectors. Faced with this situation, learned counsel for the petitioners has tried to wriggle out of this situation, by referring to the order dated 20.05.2009 passed by this court and has stressed that since they have constructed the toilets and the staircase at the time of purchase of shop No.7 adjoining to shop No.8 for allowing the similar access to the respondents, therefore, iron gate cannot be ordered to be removed. In this connection, before making discussions the order dated 20.5.2009 passed by this court is reproduced as under:- “Present: Mr.C.B.Goel, Advocate, for the petitioner. Mr.Karan Bhardwaj, Advocate, for the Caveator-respondents. The dispute between the parties is with regard to creation of no obstruction in the free access to the latrine/toilet for common use and stair case for passage to the roof which is situated at the far end of shop No.6 as depicted in the site plan (Annexure P.1.). The petitioners wish to construct an iron gate between shop No.7 and 4 on one side and shop No.8 and CR No. 2886 of 2009 9 3 on the other, so as to protect their entire property situated on their side. This construction of iron gate is being objected to by the respondents on the ground that it was interfering in their free access to the aforesaid latrine/toilet and staircase situated at the far end of the shop No.6. Learned counsel for the petitioners submit that they are ready and willing to construct similar latrine/toilet and stair case at the beginning of shop No.7 adjoining shop No.8 so as to facilitate similar free access to the respondents. Counsel for the respondents, on instructions accepts this proposal. Counsel for the petitioner prays for two months' time to do the needful. Adjourned to 27.8.2009. Till the next date, of hearing operation of the impugned order dated 23.4.2009 shall remain stayed.” On going through the aforesaid order, first of all it is observed that this proposal does not dilute the decree passed by the trial court with regard to 'use of the passage' by the decree holders. The order also does not reveal that on construction of the toilets and stair case, the decree holder would loose the right to use of the passage in question. Thirdly, offer might have been made on behalf CR No. 2886 of 2009 10 the decree holder who was owner of the shop No.8 and her husband owner of shop No.9 but the passage could not be closed for the use of other occupants of the shops. It would also be pertinent to mention that learned counsel did not make acceptance of any such fact that the petitioners would have right to make obstruction in the use of passage and the iron gate would not be removed. It is also pertinent to mention that with the sifting of stair case on the opposite shop to the shop of the decree holder, the latter would be deprived of his right to use the Chajja As such, this order passed by this court on 20.5.2009 at the very first date of hearing of the case does not, in any way, give a handle to the petitioners to defy the decree passed by the court. In the result, there would be no hesitation to hold that the Executing Court cannot go behind the decree and the decree has to be executed in letter and spirit. Since the objectors have raised the construction of iron gate in between the passage which would amount to an obstruction in the use of the passage, the staire-case, toilets made thereunder, and the Chhajja over the roof, therefore, iron gate would have to be removed. Resultantly, the petition being devoid of any merit is dismissed. (A.N.Jindal) 9.12.2011 Judge rp