Abdul Rehman Shora(D) By Lrs. & Ors vs State Of J & K & Anr

2. Being aggrieved by the Order passed by the High Court in its Revisional Jurisdiction and issuing certain directions, appellants have come up before this Court. The appellants herein are the original plaintiffs and the legal representatives of one of the original plaintiffs. First three appellants are the original plaintiffs, while the other three are the legal representatives of one Abdul Salam Shora, who was the original plaintiff No. 2. During the pendency of this appeal, appellant No. 1 died on 0 2 28.11.2007. Vide order dated 25.3.2008, his legal representatives were brought on record. They filed a suit for perpetual injunction against the respondents/defendants, whose defence was that the appellants/plaintiffs were encroaching upon the portion of land, which they alleged to have purchased and which is adjacent to the land in question. The location, identification and plaintiffs' title and possession over the suit land was not controverted by the respondents/defendants in their written statement. Two issues came to be framed and subsequently two additional issues also came to be framed and ultimately, the suit was decreed, after about 14 years of its filing by the Court of Sub-Judge, Srinagar. Admittedly, this judgment had become final, since no appeal was filed against this judgment. However, since the respondents/defendants did not obey the terms of the decree and did not allow the appellants/plaintiffs to fence the land, which was in their possession and which was identifiable and sufficiently delineated in the suit, Execution Application was filed in March, 1987 for issuing directions to the respondents/defendants to comply with the terms of decree dated 18.10.1984. An objection came to be raised by the Judgment-Debtors before the Executing Court that the decree was un- executable, since the identity of the land in respect of which the decree was passed, was itself not established. This objection was upheld by the Executing Court by its order dated 21.6.1988. Against this order, a Revision Petition was filed by the appellants herein before the High Court vide Revision No. 153 of 1988. The Revision stood allowed by the High Court by its judgment dated 25.8.1998, whereby, the order of the Executing 0 3 Court was set aside and the Executing Court was directed to proceed with the execution of the decree. The High Court had observed in the judgment that the Executing Court had not taken any steps to identify the suit land, though the factors like extent and limits of the suit land were available. The extent of the suit land was 1 canal 12 marlas, which was clearly given in Khewat and Khasra Numbers, while its location was given as Brari Nambal. It was found that no attempt was made by the Executing Court to look out for situational and other identifiable features and locale of the land even from the suit file, Revenue records including `Aksilatha'. Therefore, it was recommended that a Commissioner should be appointed for local investigation and if required, the oral evidence also could be taken. The High Court further observed that even the site plan coupled with the permission of Srinagar Municipality to raise the wall accorded to the decree holders for fencing or walling of the suit land, was not taken into consideration and it appeared that the Executing Court had gone by whatever had been raised and stated by the Judgment-Debtors alone, without arriving at an independent decision regarding executability of the decree, in totality of facts and circumstances of the case. It was also observed by the High Court that a decree cannot be defeated by reason of technical or hyper-technical objection and those unconnected with the realities on the ground level.

5. However, on this application, three persons were appointed as Commissioners, two of them were from the Revenue Department and one was from the Srinagar Municipality. They visited the spot on 7.12.2004 in presence of the parties, when the Deputy Director of Estates Department was also present on the spot, and after detailed inspection, the decreetal land measuring 1 canal 12 marlas was found to be in possession of the decree holders, i.e., the appellants. The decreetal land was also demarcated. A site plan was prepared and the report was submitted to the Court on 30.12.2004.

6. On receipt of this report, the Executing Court gave an opportunity to the parties to file their objections to the abovesaid Report. The counsel for 0 5 the respondents/defendants appeared before the Court on 16.5.2005 and he also had made a Statement that he was satisfied with the Report of the Commissioners and he accepted the same as correct. Thereafter, various orders were passed by the Executing Court, and the Court went to the extent of issuing the coercive measures, compelling the respondents/defendants to obey the decree. The first such order dated 14.12.2005 was not even challenged by the respondents in time, while by the second passed order dated 27.6.2006, the Director of Estates was directed to file an undertaking regarding the acknowledgement of the decree and demarcation of land. It is against these orders dated 14.12.2005 and 27.6.2006 that a Revision Petition came to be filed before the High Court, wherein, a totally new case was set up, which had no connection with the execution matter. Very significantly, the respondents/defendants had accepted the facts regarding the previous Revision Petition No. 153 of 1988 decided on 25.8.1998. After filing of the said Revision Petition, the respondents herein requested for placing certain documents on record. According to the appellants/plaintiffs, the respondents/defendants tried to manipulate the record, which could not have been considered in the Revision Petition by the High Court. The appellants/plaintiffs filed objections to the respondents' request of production of documents, in which it was contended that the documents can not be produced at the stage of Revision because by doing so, the whole case was tried to be reopened, and there was an attempt on the part 0 6 of the respondents/defendants to adduce fresh evidence, which too was manipulated and manufactured.

9. In short, the High Court has exceeded its jurisdiction in the matter and has chosen to allow itself to be swept away by some documents, which though available to the respondents/defendants, were never bothered to be filed either while the Civil Suit was in progress or even during the execution. We do not know how and under what provision, the said documents came to be produced at the Revisional stage, even without hearing the appellants/plaintiffs, who were parties to that Revision. In short, the impugned order is clearly erroneous and suffers from the jurisdictional error and the same is, therefore, set aside. The appellants shall be entitled to proceed on the basis of the Commissioners' Report, while the respondents/defendants would be bound by the subsequent orders dated 14.12.20005 and 27.6.2006 passed by the Executing Court. Under the circumstances, the appeal is allowed with costs.

January 7, 2009