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Jagdish Rai and ors. Vs. Dalip Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. S.A. 132 of 1979 treated as Civil Revn. No. 1932 of 1981
Judge
Reported inAIR1982P& H146
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 32
AppellantJagdish Rai and ors.
RespondentDalip Singh and ors.
Cases ReferredD. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh
Excerpt:
.....of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind..........executing court, after considering the evidence led by the parties and perusing the copy of the decree sheet, with reference to the site plan and the inspection note dt. 14th apr., 1974, came to the conclusion that 'the site' where the j. d. has put in a wooden stall is covered by the decree and the j. d. has no right to install any stall there and the alleged panchayat has no right to give that site on rent to the j. d. unless it establishes its right by brings a separate suit.' the learned additional district judge though has reproduced the decree passed by the learned district judge, rohtak on 29th july, 1958, but it is unfortunate that he has failed to give the boundaries of the courtyard, which are very much there given in the decree. he has proceeded on the assumption that the.....
Judgment:

1. The decree-holder-appellants have filed this appeal against the order of the Additional District Judge, Rohtak, dt. 30th Sept., 1978, whereby the order of the executing Court, dismissing the objection petition filed on behalf of the judgment-debtors, was set aside.

2. The decree-holders got a decree for possession, mandatory injunction and prohibitory injunction against the judgment debtors from the Court of the learned District Judge, in appeal, on 29th July, 1958, R. S. A. No. 680 of 1958 filed on behalf of the judgment-debtor Dalip Singh was dismissed on 14th July, 1961. Subsequently, even the L. P. A. No. 314 of 1961 was also dismissed on 16th July, 1969. On 12th Jan, 1972, an application for execution under O. 21, R. 32 of the Civil P. C. was filed, in which the judgment-debtors filed an objection petition. The executing Court inspected the spot on 14th Apr. 1974 and also recorded the evidence of the parties in support of their contentions. Ultimately, vide its order dt. 10th May, 1974, the executing Court came to the conclusion that the judgment-debtors had contravened the decree by placing wooden-structure thereon. It was, therefore, directed that the judgment-debtors should obey the decree and remove the wooden stall within the time allowed. Feeling aggrieved against this order, the judgment-debtor Dalip Singh filed an appeal, which was allowed by the learned Additional District Judge, Rohtak, by order dt. 30th Sept., 1978, now under appeal.

3. The sole question in this case to be determined is whether the land, on which the judgment-debtor has placed his wooden structure, as alleged by the decree-holders, forms part of the decree for permanent injunction granted in their favour. The executing Court, after considering the evidence led by the parties and perusing the copy of the decree sheet, with reference to the site plan and the inspection note dt. 14th Apr., 1974, came to the conclusion that 'the site' where the J. D. has put in a wooden stall is covered by the decree and the J. D. has no right to install any stall there and the alleged panchayat has no right to give that site on rent to the J. D. unless it establishes its right by brings a separate suit.' The learned Additional District Judge though has reproduced the decree passed by the learned District Judge, Rohtak on 29th July, 1958, but it is unfortunate that he has failed to give the boundaries of the courtyard, which are very much there given in the decree. He has proceeded on the assumption that the decree not only related to the site marked by letters 'FF-HG', whereas the decree not only related to the site 'EF-HG', but the defendant-judgment-debtor was further restrained permanently from interfering with the possession of the plaintiffs over the suit land or from raising any structure on the courtyard bounded below :--

East : Shops of plaintiffs and defendants 2 to 26.

West : Thoroughfare and road.

South : Road and thoroughfare.

North : Shops of defendants and Mst. Manbhari plaintiff.

4. According to the learned counsel for the decree-holders, the judgment-debtor has placed a wooden stall in the said courtyard bounded as given in the decree-sheet, which very much forms part of the decree. After going through the decree-sheet and the plan filed in the suit, Exhibit P-10, a copy of which has been placed on the execution file as Exhibit DH/2, it is apparent that the whole vacant land, the boundaries of which have been given in the decree-sheet Exhibit DH/3, does cover the land over which the judgment-debtor had made alleged encroachment. The executing Court in its inspection note dt. 14th Apr. 1974 has stated :--

'Towards the West of the Piao there is a window for serving water to the public. There is a chabutra all along the piao towards the West. The Khokha in dispute is towards the West of the piao up to the thoroughfare and towards the North extending up to the line of two steps of the piao from of the window for the public to take water. There is some vacant space towards the Chabutra in front of the window of the piao and the thoroughfare, for the public to reach the Chabutra and window from the road. There is a ventilator in the piao in each of the Eastern and Southern walls of the piao. The name scribed is fixed in the Western wall of the piao over the window.'

Thus, from the evidence on the record, no other conclusion is possible except the one that the land over which the judgment-debtor has encroached upon did form part of the decree for mandatory injunction and the lower appellate Court has acted illegally and with material irregularity in the exercise of its jurisdiction, causing great injustice and irreparable injury to the decree-holders, who fought up to the L. P. A. Bench in the High Court.

However, the learned counsel for the judgment-debtor contended that if this appeal is to be treated as a revision petition because of the amended C.P.C. as prayed in this appeal, then there is no ground to interfere u/s. 115 of the C.P.C. In support of his contention he referred to M/s, D. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh, AIR 1971 SC 2324. The proposition of law is well settled and cannot be disputed but as observed earlier, after going through the decree-sheet and the plan I find that no other conclusion is possible except the one that the judgment-debtor has encroached upon the land which forms part of the courtyards, the boundaries of which have been given in the decree-sheet. The lower appellate Court has not only misconstrued the decree, but has failed to notice the boundaries of the courtyard given therein and has proceeded with the assumption that the decree only related to the site marked by letters 'EF-HG'. I am of the considered opinion that it is a fit case where this Court will interfere in the exercise of its revisional jurisdiction u/s. 115 of the C.P.C. and set aside the order of the lower appellate Court. Consequently, treating this appeal to be a revision petition, this petition is allowed and the order of the lower appellate Court is set aside and that of the execution Court is restored with costs.

5. Revision allowed.


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