Civil Revision No.4529 of 2007 [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Revision No.4529 of 2007 Decided on : May 27, 2009 Puran Singh ... Petitioner VERSUS Bhane Ram and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Prem Nath Aggarwal and Mr.Sanjiv Gupta, Advocates for the petitioner. Mr.Narender Hooda, Advocate for the respondents. A.N.JINDAL, J.- This petition is directed against the order dated 17.4.2007 passed by Civil Judge (Junior Division), Rohtak, whereby, the application of the decree-holder/Petitioner Puran Singh (since deceased and represented through his legal representatives) filed under Order XXI Rule 32 and Section 151 of the Code of Civil Procedure was dismissed. Admitted facts between the parties are that Puran Singh had filed a suit for permanent injunction, which was decreed on 20.7.1994 restraining the respondents from raising any construction over the front portion of Khasra No.14719/7896(0-0), 14721/7896(1-3) and Khasra No.14726/7902 (1-2), 14728/7902 (1-9) and Khasra No.14713/7896/1/2(0- Civil Revision No.4529 of 2007 [ 2 ] 2), 14715/7896//1/3(0-6), 14714/7896/2/1(0-0), 14718/7896/2/3(0-3), 12367/7894(0-5), abutting bye pass and also not to alienate the same, till the land is partitioned. It has been pleaded that respondents had the opportunity to obey the decree, but respondents No.2 to 6 have willfully disobeyed the decree and started raising construction over the front portion of the land in question, abutting the northern bye-pass. Suraj Bhan, judgment debtor – respondent No.4 was challaned under Section 107/151 of the Code of Criminal Procedure, but still they have raised two walls upto the height of 6-7 feet towards East and West. Since the land has not been transferred, therefore, the judgment-debtor by raising the aforesaid walls has willfully disobeyed the decree and thus, liable to be sent to Civil Imprisonment. The said application was contested by raising various legal objections. The judgment debtors also submitted that they have never violated the judgment and decree dated 20.7.1994 as they have not raised any construction over any part of the suit land, however, the construction has been raised over Khasra No.14725/12331/7897, 14723/12381/7897 by its owner Smt.Chhoto Devi. It was further submitted that the proceedings under Section 107/151 Cr.P.C, were wrongly initiated against Suraj Bhan – respondent No.4. After considering the pleadings of the parties, the Trial Court vide order dated 6.5.2006 framed the following issues:- “Whether respondents/JDs have disobeyed the judgment and decree dated 20.7.1994 passed by the learned Trial Court and raised any construction in disobeyeance of decree? OPP 2. Whether the proceedings under Order 21 Rule 32 CPC Civil Revision No.4529 of 2007 [ 3 ] are liable to be initiated against the respondents? OPP 3. Whether objections against LC report are maintainable? OPP 4. Whether the report of Local Commissioner is liable to be set aside on the grounds taken in the objection petition? OPP 5. Whether the execution petition is not maintainable?OPR 6. Whether the petitioner/DH has no cause of action to file the execution petition? OPR 7. Whether the petitioner/DH is estopped by his act and conduct from filing execution petition? OPR 8. Relief.” During the pendency of the proceedings, the decree-holder moved an application for appointment of Local Commission, which was dismissed on 17.9.2004. However, the petitioner Puran Singh filed a revision petition, wherein, this Court vide order dated 5.10.2005, while allowing the petition ordered that the Executing Court shall appoint a Local Commissioner to determine as to whether the construction is being carried on by the respondents in Khasra No.7897 or Khasra No.7896 of the suit property. Pursuant to the aforesaid order, the Executing Court appointed the Tehsildar, Rohtak as Local Commissioner, who submitted his report on 31.1.2006, relevant part of which reads as under:- “... Now after measurement Khasra No.7896/3/1 at the spot is vacant and Khasra No.12381/7897/1 the south part is touching Civil Revision No.4529 of 2007 [ 4 ] south side of Khasra No.7896/3/1 and at the spot some part is vacant and in remaining Khasra No.12381/7897/1, 2-3 stories houses are built and there is congested area where the measurement cannot be done. The southern side of Khasra No.12381/397/1 is situated along with road and the shops are built at the spot. In Khasra No.7897 there is no share of Puran Singh, Hari Singh and the demarcation report is submitted for further action.” No.48/R.I. Dated 31.1.06 Sd/- Tehsildar Rohtak as Local Commission Note: Map of Kishatwar on the spot is annexed.” On the basis of the evidence led by the parties as well as the report of the Local Commission, the lower Court observed that no alleged construction was existing in Khasra Numbers, relating to the decree-holder, which was the subject matter of the judgment and decree obtained by him. Further, while observing that there are no grounds for setting aside the report of the Local Commission, it dismissed the application under Order XXI Rule 32 read with Section 151 of the Code of Civil Procedure. Arguments heard. Record perused. Admittedly, both the parties are co-sharers in the joint Khata. The judgment and decree dated 20.7.1994 is to the effect that the judgment debtors would not raise any construction over the land in question abutting the northern bye pass and alienate the same in any manner, till the partition is effected between them. The main controversy between the parties is whether the Civil Revision No.4529 of 2007 [ 5 ] respondents have raised any construction over Khasra No.7896/3/1, which has been solved by Tehsildar, Rohtak, who had been appointed Local Commissioner, pursuant to the orders of this Court. The decree-holder took objections upon the report of the Local Commission on the ground that he did not make `Pukhta Nishanat' before demarcating the suit property and only boundaries of some Khasra Numbers were taken as `Pukhta Nishanat', which could not be taken as such for getting suit property demarcated. The Local Commission did not consider the judgment and decree, which was passed by the then Senior Sub Judge, Rohtak, but the report was prepared in such a manner, suiting the respondents. He has also raised objections with regard to making of the measurements. To the contrary, the respondents have supported the report of the Local Commissioner and stated that Local Commission has demarcated the area in compliance with the instructions issued by the Financial Commissioner (Revenue) after fixing the `Pucca Thadas' for making proper measurements and also by making measurements of the surrounding Khasra Numbers. Having perused the impugned judgment and the records, it transpires that the Local Commissioner did his best to reach the right conclusion and proved his report (Ex.P12). He fixed the 'pucca' points, measured the surrounding areas and reached the conclusion that the construction has been raised in Khasra No.9897/1 and there is no construction in Khasra No.7896/3/1. No inherent defect in the demarcation of the Local Commission could be detected, so as to determine the same as unreliable. The report has been made with the help of the revenue records Civil Revision No.4529 of 2007 [ 6 ] relating to the disputes Khasra Numbers. The Trial Court has met with all the objections raised by the petitioner and the impugned order sans no illegality, which could warrant interference. With regard to the objections regarding measurement of the surrounding area, the Executing Court after appreciating the pleadings formulated the issues and decided the same on the basis of the proper scrutiny of the evidence. In such circumstances, the scope of interference by the Court, while exercising its revisional jurisdiction is very limited. The findings arrived at by the Executing Court cannot be disturbed, merely on technical grounds, when the only possible view on the basis of the evidence led by the parties, has been formed by it. While elaborating the extent of interference in the order at the revisional stage, the Apex Court in case Southern Sales & Services & Ors vs. Sauermilch Design and Handles GMBH , 2008(4) RCR(Civil) 729 observed as under:- “16. As has been pointed out by Mr.Sharma, it is now well established as a principle of law that even if a wrong order is passed by a Court having jurisdiction to pass an order in such cases, the revisional Court will not interfere with such an order unless a jurisdictional error is pointed out and established by the person who questions such order.” Thus, finding no illegality, much less irregularity in the impugned order, this petition is dismissed. However, in order to safeguard the rights of the decree-holder, it is directed that in case of partition, if any area over which some construction has been raised by the respondents, falls Civil Revision No.4529 of 2007 [ 7 ] to the share of the decree-holder, then the respondents would vacate the same, without claiming any compensation for the improvements made thereon. May 27, 2009 ( A.N.JINDAL ) `gian' JUDGE