CR No.679 of 2002 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.679 of 2002 Date of decision: December 15, 2008. Ram Phal & Anr. ...Petitioner(s) v. Hawam Singh & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Ajit Malik, Advocate for the petitioners. ORDER Surya Kant, J. - (Oral): This revision petition is directed by the judgment-debtors who are aggrieved at the order dated 24.1.2002 passed by the Civil Judge (Senior Division), Jhajjar-cum-Executing Court whereby they have been held to have illegally encroached upon the portion of plot No.115 in violation of the civil court judgment and decree dated 22.11.1995 and as a consequence thereto, have been ordered to be sent to civil imprisonment for six months. Vide judgment and decree dated 22.11.1995, the civil court had restrained the judgment-debtors from interfering into the peaceful ownership and possession of the respondent/decree-holders over the disputed site. The respondent/decree-holders thereafter moved an execution CR No.679 of 2002 -: 2 :- petition on 2.5.1996, inter-alia, alleging that the judgment-debtors have encroached upon plot No.115 to the extent of 7 feet in east, 7 feet in west, 22 feet in south and 22 feet in north by way of carving out a thorough-fare and then installing an entrance door. The executing court held the petitioner/judgment-debtors guilty of violating the injunction decree, primarily on the basis of the report of the local commissioner, Ex.CW1/3 submitted by Om Parkash Kanungo. When this revision petition came up for hearing before this Court on 4.2.2002, the following order was passed:- “Looking to the peculiar facts and circumstances of this case and controversy raised by the petitioner by filing the affidavits of various persons alleging that demarcation never took place, I deem it appropriate to appoint Ms. Deepika Handa as Local Commission to go and inspect the spot. She is to find out whether the demarcation report was prepared by Shri Om Parkash, Girdavar Kanungo Halqa No.1 in accordance with the narration made in it. Let the parties be also associated. The Local Commission would also find out if there is any encroachment made by the petitioner in the plot bearing khewat No.96 min khata No.164 min Khasra No.115 in respect of which decree to the extent of8 marlas was passed as suggested by Girdavar Kanungo. The Local Commission shall proceed on the spot on 5.2.2002 and report be filed on 6.2.2002. Fee of the Local Commission is determined at Rs.8,000/- and Rs.1,000/- for expenses in addition to the fee. Put up again on 6.2.2002. CR No.679 of 2002 -: 3 :- Copy of the order be given dasti under the signature of the Court Secretary along with a photocopy of the paper book.” In deference thereto, the local commissioner submitted a report dated 6.2.2002, the relevant part of which reads as follows:- “In order to determine the encroachment in Khewat No.115, I found it appropriate to question the Girdawar as to how measurements had been taken by him in order to determine the area in which Khewat No.114 existed and, the area in which Khewat No.115 existed. Upon this, the Girdwwar told me that the measurements have been taken by him one common Gali which is Gali No.275 which falls in the east of the disputed site. I went to this common Gali No.275. I have not been convinced as to how he has ascertained the common gali as the pucca point from where he has taken the measurements of Khewat No.114 and 115. Therefore, when the measurements themselves have not been taken properly by the Girdawat to my knowledge stating in his report that there was an encroachment by the petitioners 7 feet in the east, 7 feet in the west, 22 feet in the south and 22 feet in the north stands falsified. Furthermore, in order to be sure if at all there is any encorachment in Khewat No.115, I have myself gone inside the house situated on Khewat No.114 and on looking at it from inside, I am of a considered view that this house is very old and there cannot be a probability of encroachment CR No.679 of 2002 -: 4 :- having done by the petitioners in September, 2000 when the report has been submitted by the Girdawar. The house to me, has been made as one structure and there are no fresh construction marks on the ceilings of this house.” (emphasis applied) In the light of the above mentioned report, the impugned order dated 24.1.2002 cannot sustain. The revision petition is accordingly allowed and the impugned order dated 24.1.2002 passed by the Executing Court is set aside. This order shall, however, not be construed to permit the petitioner/judgment-debtors to make any fresh encroachment and/or to violate the judgment and decree dated 22.11.1995 passed by the civil court. If any such attempt is made by them, the respondent/decree-holders shall be entitled to take appropriate action against the petitioners as may be available in law. Disposed of. December 15, 2008. [ Surya Kant ] kadyan Judge