Civil Revision No. 4051 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.Ms. No. 15109-15110-CII of 2007 and Civil Revision No. 4051 of 2007 (O&M) Date of decision: 06.07.2009 Moti Ram ....Petitioner Versus Dharam Vir and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Pritam Saini, Advocate, for the petitioner. Mr. Anil Kshetarpal, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) C.Ms. No. 15109 & 15110-CII of 2007 Allowed as prayed for. C.R. No. 4051 of 2007 This revision petition is directed against the order passed by the learned Executing Court vide which the application moved by the petitioner under Order 21 Rule 32 of the Code of Civil Procedure for executing an order of injunction has been ordered to be dismissed. The petitioner had filed a suit for injunction, which was disposed of on the basis of compromise entered into between the parties. The operative part of the order passed in civil suit No. 88 of 1983 reads as under: - “It is ordered that the parties have come around an agreement. Statements recorded accordingly, khasra No. Civil Revision No. 4051 of 2007 (O&M) -2- 211/14 is owned and possessed by the plaintiff jointly with third parties. The defendants have nothing to do with this khasra number. Hence, the suit of the plaintiff is decreed only to the extent that defendants shall remain restrained from encroaching upon khasra No. 211/14. Parties are left to bear their own costs.” The petitioner-decree-holder thereafter moved an application under Order 21 Rule 32 of the Code of Civil Procedure for enforcement of order of injunction, on the plea that in spite of injunction order having been granted in favour of the petitioner, the respondents have encroached upon khasra No. 211/14. The learned Executing Court dismissed the application by observing, that the encroachment said to have been made on khasra No. 211/14, was made prior to the decree passed in civil suit No. 88 of 1983 and, thus, dismissed the application. The petitioner filed civil revision No. 3706 of 2001 to challenge the order of learned Executing Court dismissing the application moved by the petitioner under Order 21 Rule 32 of the Code of Civil Procedure. The revision petition filed by the petitioner was allowed, and this Court was pleased to direct the learned Executing Court to get the khasra No. 211/14 demarcated and, in case, any construction or encroachment is found, the decree be executed in terms of Order 21 Rule 32 of the Code of Civil Procedure. The operative part of the order passed by this Court reads as under: - “Consequently, the order passed by the learned Executing Court, is set aside. Executing Court is directed to get demarcated Khasra No. 211/14. If after demarcation it is found that there is any construction or encroachment over Civil Revision No. 4051 of 2007 (O&M) -3- Khasra No. 211/14, the executing court shall take steps to execute the decree in accordance with the provisions of law including under Order 21 Rule 32 of the Code. The parties are directed to appear before the learned Executing Court on 28.5.2004.” In compliance to the order passed by this Court, the learned Executing Court appointed Local Commissioner, where in spite of notice, the petitioner failed to appear, and consequently, report was submitted pointing out that there was no encroachment on khasra No. 211/14 and the execution application moved by the petitioner was dismissed. It is pertinent to mention here that the petitioner also filed review against the order passed by this Court. The review petition was also dismissed. The learned counsel for the petitioner vehemently contends, that the order impugned cannot be sustained in the eye of law, as the learned Executing Court has completely overlooked the report Ex. D-1, which was submitted by the Local Commissioner in the execution application moved, showing that there was encroachment over khasra No. 211/14. The contention of the learned counsel for the petitioner, therefore, is that in the presence of the previous report, it was not correct on the part of the learned Executing Court to have based its judgment purely on the subsequent report without even taking note of the previous report. The learned counsel for the petitioner contends, that the second report could not be accepted, as it was not carried out in accordance with the instructions laid down for demarcation purposes, as in view of the construction raised there was no pucca point from which it could be established that whether there was encroachment or not, whereas the Civil Revision No. 4051 of 2007 (O&M) -4- previous report submitted was prior to the construction having been raised, therefore, was more authentic and should have been believed. The learned counsel for the petitioner by referring to the report of the Local Commissioner contends, that there was an admission by Local Commissioner that on the date field book was not at the spot, massavi was also not there. He further contends that there was no burji in any direction. He admitted the construction all over the spot. The learned counsel for the petitioner thereafter has referred to the statement made by Daler Singh, Tehsildar, Ambala, who was appointed as Local Commissioner, wherein he has stated as under: - “On that day, the filed book was not there at the spot. Mussavi was not there but the Jamabandi was there. Khasra number of the passage is 211/7. At the spot, I did not find any stone/burzi. Khasra No.211/6 lies n the west of the passage. In that area or elsewhere there is no Burji in any direction. I did not measure 211/6. I also did not measure 211/19. There are constructions of shops and houses all over in the site plan. It is correct that according to record, khasra No.211/14 is shorter than Khasra No.211/19 by 4 karams in the southern direction. I do not remember whether construction in khasra No.211/14 is 4 ½' away towards the south from construction in Khasra No.211/19 or not. It is incorrect to say that I am telling this intentionally in collusion with the J.D. I have not seen Sarwan Nath Market but I have seen Pehowa Road. It is correct that from the side of Pehowa Road, khasra No.211/19 lies 4 karam ahead of khasra No.211/14 running parallel towards the Pehowa road. I have seen the jamabandi. I do not now over how much land Jai Dev and Dhara Vir etc. JDs are owners according to record. I do not know whether both these JDs are owners of 600-600 square yards and they have established possession Civil Revision No. 4051 of 2007 (O&M) -5- over 700-700 square yards at the spot. After seeing the report I can tell whether Jai Devi and Dharamvir Jds are owners of khasra No.211/14 or not. I have not demarcated khasra No.211/19. I do not know Moti Ram present in the court. I have not seen the house of Moti Ram from inside but have seen it from outside. The street which goes from Pehowa Road to the house of Moti Ram is 4-5' wide. This street falls in Khasra No.211/14. I cannot tell how old the said street could be. It is incorrect to say that I have prepared the demarcation report in collusion with the judgment debtors. I cannot tell anything about the site plan Mark OX whether the same is as per the spot or not. I cannot tell whether the wall towards eastern side of the said road is of Dharamvir or not. I also cannot tell the age of the said wall. I cannot tell in which khasra number the above said wall lies. I cannot tell whether the same is in khasra No.211/14 or not. It is incorrect to say that I have given a false report on the basis of imaginary points to give benefit to the JDs. It is also incorrect that a wrong report has been given in the absence of the DHs and pucca point was not traced and the report has been given on the basis of imaginary points. It is incorrect to say that at the spot the JDs are in unauthorized possession in khasra No.211/14.” By referring to this statement, the learned counsel for the petitioner contends, that the demarcation report could not be accepted, and the learned Court below committed an error in accepting the demarcation report to non-suit the petitioner. The learned counsel for the petitioner contends that the statement of the Local Commissioner points out, that it is amply proved on record that the demarcation was not carried out according to instructions of the Financial Commissioner, and furthermore once it was proved on record that he was not even aware about the land and who was Civil Revision No. 4051 of 2007 (O&M) -6- the owner thereof, such report was liable to be rejected straightway. The learned counsel for the petitioner contends, that third Local Commissioner should be appointed. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. The Local Commissioner was appointed in pursuance to order of this Court, the petitioner did not have right to file objection against the said report. In pursuance to the order passed by this Court the demarcation has been carried out, and it was found that there was no encroachment over khasra No. 211/14. The petitioner himself chose not to associate in demarcation in spite of notice by Local Commissioner. Further when it was the case set up that construction had been raised, the Local Commissioner was to carry out the demarcation at spot as per revenue record. No fault, therefore, can be found with the report of Local Commissioner. No ground is made out to interfere with the order passed. No merit. Dismissed. (Vinod K. Sharma) Judge July 06, 2009 R.S.