IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.107 of 2010 Date of decision: 10.11.2010 Sultan Mohammad & ors. …. Petitioners Versus Harbhajan Singh ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioners: Mr.Sanjeev Kuthiala, Advocate. For the respondent: Mr.K.D.Sood, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition is directed against the order dated 29.10.2009 whereby the learned Executing Court allowed the Execution Petition filed by the respondent, Harbhajan Singh and the property of the present petitioners was ordered to be attached for a period of six months. It was further ordered by the learned Executing Court that in case the petitioners continue to disobey the judgment and decree of the learned Trial Court dated 23.1.1998 then the respondent-decree holder would be at liberty to 2 approach the Court for sale of the land of the petitioners-judgment debtors. 2. Briefly stated the facts of the case are that the respondent, Harbhajan Singh filed a suit against Fateh Mohammad and two of his sons namely Sultan Mohammad and Kaptan Ali. It would be pertinent to mention here that Fateh Mohammad had died and his widow, Niazo and another son namely Hussan Mohammad were arrayed as respondents No.3 and 4. Harbhajan Singh filed a suit that he is owner of Khasra Nos.1029 and 1030 and that the defendants be restrained from interfering in his possession over the said land. He also prayed that the defendants be also restrained from cutting and removing fruit bearing trees, erecting any structure and demolishing the kitchen which belonged to him. 3. On 23.1.1998, Fateh Mohammad made a statement that he and his sons had no connection with the suit land and they were not interfering in the same nor they will interfere in it in future. Sh.Rajan Sood, Advocate who represented Sultan Mohammad and Kaptan Ali also made a statement that he adopts the statement of Fateh Mohammad. 3 Accordingly the suit was decreed and a decree was passed in favour of the plaintiff Harbhajan Singh and against the defendants, Fateh Mohammad, Sultan Mohammad and Kaptan Ali to the effect that the defendants were permanently restrained from taking forcible possession, causing interference in any manner or from cutting or removing any trees from the suit land. 4. The decree holder filed the present Execution Petition claiming that on 17.3.2004 Sultan Mohammad, Kaptan Ali, Niazo, widow of Fateh Mohammad and Hussan Mohammad, another son of Fateh Mohammad (the legal representatives of Fateh Mohammad) had hired a JCB machine for removing earth of land adjoining Khasra No.1029 towards eastern side. It was further alleged that the earth of Khasra No.1029 towards the eastern side and the old ‘beer’ (boundary) which was in existence had been removed with the help of a JCB machine approximately 35 meters in length and to a depth of 20 feet. It was further alleged that due to this excavation, there was danger of further land in Khasra No.1029 sliding down. 4 5. The decree holder also filed another suit against the present petitioners praying that the respondents be restrained from removing the earth. In that suit, Sh.Sanjeev Kalota, Advocate was appointed as a Local Commissioner to determine the situation on the spot. He submitted his report, a copy of which has been exhibited as Ext.AW3/A in the Execution Petition. According to this report, the Local Commissioner found that the respondents had removed the old standing ‘beer’ of Khasra No.1029 approximately for a length of 30 meters and had dug the same to a depth of 20 feet. He also found that there was great danger of land sliding from Khasra No.1029. He also found that there was danger to the fruit bearing trees and kitchen at the spot. Admittedly, this was an ex parte report. The decree holder filed the execution proceedings out of which the present petition arises virtually on the same grounds and claimed that the judgment debtors had willfully disobeyed the decree. 6. The learned Executing Court vide impugned order has come to the conclusion that the judgment debtors have disobeyed the decree dated 23.1.1998 and directed that the property of the judgment 5 debtors No.1 and 2 be attached and in case they continue to disobey the decree, it can be put to sale. 7. Sh.Sanjeev Kuthiala, learned counsel for the petitioner has raised three contentions before me. His first contention is that the statement of Fateh Mohammad does not bind the judgment debtors No.1 and 2, Sultan Mohammad and Kaptan Ali. His contention is that the report of the Local Commissioner given in other proceedings, i.e., a Civil Suit cannot be read in evidence in the execution proceedings. His last contention is that even if the report of the Local Commissioner is taken into consideration and the statement of the Local Commissioner is read in its entirety, the plaintiff has failed to prove that the judgment debtors have actually disobeyed the decree. 8. As far as the first contention is concerned, I find that there is no force in the same. A statement was made by Sh.Fateh Mohammad which has been exhibited as Ext.AW1/A in the execution proceedings. Therefore, this statement of Fateh Mohammad binds him and his legal representatives Niazo and Hussan Mohammad, petitioners No.3 and 4. As far as 6 petitioners No.1 and 2 are concerned, Sh.Rajan Sood, their counsel also made a statement that he adopts the statement of Fateh Mohammad and therefore, petitioners No.1 and 2 are also bound by the same. Though during the course of the execution proceedings, it has been urged that the defendants No.2 and 3 were not even aware of the earlier suit but this fact cannot be believed since they were represented by a counsel. They were aware about the decree against which they did not file any appeal nor they challenged the same in any proceedings. Therefore, they are bound by the statement made on their behalf by their counsel. 9. As far as the second contention is concerned, I find that in this case, it is not as if the report of the Local Commissioner delivered in the other suit has been read in evidence straightaway in the execution proceedings. The Local Commissioner has been examined in Court. He appeared as a witness and stated that he was appointed as a Local Commissioner in the Civil Suit filed by the decree holder, and to execute the commission, he went to the spot and gave the report. Therefore, the report 7 can be looked into. I find no force in this contention also. 10. However, I find force in the third contention of Sh.Kuthiala. No doubt, the Local Commissioner has stated that the boundary of Khasra No.1029 on the eastern side to the extent of 35 meters had been removed and dug upto a depth of 20 feet but he in his cross-examination has clearly admitted that he had not demarcated the boundaries and in fact, a counsel cannot be expected to demarcate the boundaries which can only be done by the revenue officials. He also admitted that the boundaries were identified by the plaintiffs and, therefore, his report is based on the boundaries as shown to him by the plaintiff. These may or may not be in accordance with the revenue record. 11. It is however, clear that the dispute cannot be resolved and the issue whether the judgment debtors have actually disobeyed the decree cannot be decided without getting the boundaries demarcated. This can only be done with the help of a revenue expert. Therefore, I set aside the order of the learned Executing Court and remand the matter back to it 8 with a direction to appoint some revenue expert as a Local Commissioner to demarcate the boundaries between the Khasra No.1029 and 1030 which are the adjoining Khasra numbers belonging to the parties and then decide whether the judgment debtors have actually violated the decree or not. The learned Executing Court shall thereafter proceed in accordance with law. 12. The parties through their counsel are directed to appear before the learned Executing Court on 15th December, 2010. The Registry is directed to send the record of the learned Executing Court back so as to reach well before the said date. With these observations, the petition is disposed of. No order as to costs. Dasti copy. November 10, 2010 ( Deepak Gupta ) (m) Judge