IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 207 of 2008 Date of Decision : December 31, 2009 Veena Devi Petitioner/J.D. Versus Shakti Chand Respondent/D.H. Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Ajay Sharma, Advocate, for the petitioner. For the respondent : Mr. Dushyant Dadwal, Advocate, for the respondent. Sanjay Karol, J. (Oral) The judgment debtor has filed the present Revision Petition under Section 115 of the Code of Civil Procedure, assailing the judgment dated 24.11.2008 passed by the Civil Judge (Senior Division), Palampur, Distt. Kangra, H.P. in CMA No. 222/2006 whereby the respondent’s/Decree Holder’s application filed under Order 21 Rule 32 CPC stands allowed. In the year 2003, the Decree Holder filed a suit for permanent prohibitory injunction against the Judgment Debtor. In terms of the judgment and decree dated 3.7.2006, the Judgment Debtors were restrained from interfering with the suit land belonging to the Decree 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Holder comprising khata No. 48 min, khatoni No. 74 min, khasra No. 1229, measuring 0-02-27 hectares, situated at Mohal and Mauja Latwala, Tehsil Palampur, Distt. Kangra (H.P.). Land adjoining to the suit land comprising khasra No. 1230 is owned by the Judgment Debtor. In spite of the decree passed by the Civil Court and in violation thereof, the Judgment Debtor forcibly took possession of two rooms existing on the suit land. This is the case set up by the Decree Holder. Consequently an application under Order 21 Rule 32 CPC was filed by him, which was resisted by the Judgment Debtor. The Court below framed the following issues and afforded opportunity to the parties to lead evidence: “1. Whether the respondent has wilfully disobeyed the judgment and decree dated 3.7.2006 passed by this Court, as alleged? OPA 2. Whether the application is not maintainable in the present form? OPR 3. Relief.” The Decree Holder examined himself as AW-1, Sh. Narad Ram (AW-2) and Sh. Charan Dass, Kanungo (AW-3). In rebuttal the Judgment Debtor examined herself as RW-1 and Sh. Ram Chand (RW-2). Before the Court below, an endeavour was also made to have the matter resolved amicably. The controversy in effect being limited, in terms of order dated 25.4.2008 the Court below appointed a Local Commissioner to demarcate the land. The same reads as under: “At this stage, ld. counsel for the parties stated at bar that real controversy between the parties can be set at rest in case the suit land comprising khasra No. 1229 and 3 the land of respondent comprising khasra No. 1230 be demarcated through some revenue officer and to find out if the respondent has taken possession of house existing over khasra No. 1229 regarding which earlier decree was passed. I have gone through the case file and satisfied that real controversy between the parties can be set at rest if the land comprising khasra No. 1229 and 1230 be demarcated by some revenue officer. Accordingly, Shri Manoj Kumar, Naib Tehsildar, Palampur is hereby appointed as L.C. with the direction to demarcate the land comprising khasra No. 1229 and to find out if the respondents are in possession of house existing over the aforesaid khassra No. 1229 or if the respondents are in possession of house existing over khasra No. 1230. His fees is assessed at Rs. 1500/- which shall be paid by the parties at the spot. Ld. counsel for the petitioner is directed to furnish musabi within 7 days. Reference to the L.C. be issued accordingly and report be called for 31.5.2008.” The Local Commissioner filed his report to which no objections were filed by the parties. In the impugned order dated 24.11.2008, the Court below has held the Judgment Debtor to have encroached upon the suit land and taken possession of the house belonging to the Decree Holder. The operative portion of the impugned order reads as under: “The learned counsel for the petitioner contended with vehemence that as it is proved on record that the respondent has taken forcible possession of the suit house i.e. two rooms out of the suit land in violation of the judgment and decree dated 3.7.2006, the petitioner has successfully proved his case. On the other hand, learned counsel for respondent contended with vehemence that as it is proved on record that the respondent is in 4 possession of her house since the year 2001 and she has not taken forcibly possession of the suit land after the passing of judgment and decree, the petition of the petitioner is false and frivolous and the same be dismissed with costs. But, there is no force in the contention of learned counsel for the respondent, as in reply the respondent has specifically stated that she never interfered over the suit land nor she has violated the judgment and decree dated 3.7.2006, whereas, it has come on record from the statement of RW-1 Veena Devi that she has taken possession of the rooms belonging to Shakti petitioner, as she has specifically admitted that if Shakti had constructed rooms then she would have taken possession of the same. Not only this, it is further clear from the report of L.C. dated 23.5.2008 who was appointed on the request of the learned counsel for the parties, that the respondent has taken possession of one kacha slate posh house existing over land comprising khasra No. 1229/1 regarding which decree for permanent injunction was passed against the respondents. Since nothing was disclosed by the respondent in her reply that she had already taken possession of the suit land in the year 2001 which now the learned counsel for the respondent has contended that as the respondent was already in possession of the house existing over the suit land, the petition of the petitioner is not maintainable as this contention of the learned counsel for the respondent is without any merits especially when the respondent was aware of that decree for permanent injunction qua land comprising khasra No. 1229 has already been passed against her and she in violation of that wilfully disobeyed the same.” 5 From the record it could not be shown as to how the aforesaid findings are perverse, erroneous or illegal. Having perused the record it is evident that the respondent- Judgment Debtor has deliberately, intentionally and wilfully flouted and disobeyed the terms of the judgment and decree dated 3.7.2006. The Decree Holder is stated to have purchased his land from AW-2, according to whom the rooms in question were not sold by him. From the conjoint reading of the statements of AW-1, AW-2 and AW-3 as also the report of the Local Commissioner, there is no doubt that the Judgment Debtor has taken over possession of the rooms in question after passing of the decree. Considering the entire material on record I find that no ground for interference is made out in the present petition filed under Section 115 of the Code of Civil Procedure and the same is accordingly dismissed. Record be immediately sent back. CMP No. 1021 of 2008 Disposed of. (Sanjay Karol), Judge. December 31, 2009 (PK)