Krishna Nand Vs Bhima Nand

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.557 of 2024

Decided on: 23^rd September, 2024

_________________________________________________________________ Krishna Nand ....Petitioner Versus Bhima Nand …Respondent ________________________________________________________________ Coram_ Ms. Justice Jyotsna Rewal Dua

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lWhether approved for reporting?

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____________________________________________________________ For the petitioner: Mr. Abhishek Thakur & Mohit Dogra Advocates. For the respondent: Nemo.

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Jyotsna Rewal Dua, Judge

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Petitioner is aggrieved against the order dated 05.06.2024, whereby his application under Order 21 Rule 32 of Code of Civil Procedure (CPC in short) for execution of the judgment and decree dated 19.02.2011 was dismissed by the learned Trial Court.

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2. Following facts emerge from the case file:-

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2(i) Petitioner instituted a civil suit bearing No. 50-

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l Whether reporters of Local Papers may be allowed to see the judgment? yes

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K/1 of 2008 against the respondent for restraining him from cutting any valuable trees or causing damage or changing the nature of the suit land comprised in Khewat/Khatauni No. 46/92 bearing several Khasra Numbers-75 in all, measuring 117-2 bighas situated at Mouza Chhausha Hadbast No. No. 66, Tehsil Kandaghat, District Solan,, till the suit land is partitioned by metes and bounds.

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2(ii) The civil suit was decreed on 19.02.2011. Respondent was restrained from constructing any water tank in Khasra Nos. 958/424, 1084/424 and 309. Respondent was also restrained from cutting trees or causing damage or changing the nature of the suit land till the same was partitioned by the metes and bounds.

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2(iii) The aforesaid judgment and decree was not assailed any further by the respondent.

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2(iv) Petitioner moved an application under Order 21 Rule 32 CPC on 06.05.2016 for execution of judgment and decree dated 19.02.2011. The allegations in the application were that:- The respondent-Judgment Debtor had constructed water tank and building over the suit land; That he was still constructing building over the suit and also

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removing valuable trees therefrom; The Judgment Debtor had violated the judgment and decree dated 19.02.201. Hence, prayer was made to pass appropriate orders for enforcement of the judgment and decree dated 19.02.2011 by way of attachment of movable and immovable property of the Judgment Debtor or his arrest and detention in civil imprisonment or by any other mode.

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2(v) The respondent-Judgment Debtor filed reply to the application under Order 21 Rule 32 CPC. He denied all the allegations of willful disobedience on his part to the judgment and decree dated 19.02.2011. Respondent specifically denied having raised any construction of water tank or building over the suit land or that he was still constructing the building over the suit land or cutting valuable trees therein.

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Respondent’s case was that:- He had only renovated his old kitchen and put two new slabs in place of old slabs; The new slabs have same length, width and occupied the same area in the kitchen vis-à-vis the dimensions of the old slabs; He had obeyed the judgment and decree dated 19.02.2011. Respondent even went on to the

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extent of submitting that the Court could even appoint a Local Commissioner for determining alleged disobedience on his part to the judgment and degree dated 19.02.2011.

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2(vi) On the basis of pleadings of parties, following issues were framed by the learned Trial Court in the application moved by the petitioner under Order 21 Rule 32

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CPC:-

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1. Whether the JD has deliberately violated the execution of judgment and decree dated 19.02.2011, as alleged? OPA

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2. Whether the present execution is not maintainable, as alleged?

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3. Relief.

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2(vii) Parties led evidence in support of their respective contentions. After examining the pleadings, evidence as well as the submissions made for the parties, learned Trial Court dismissed the application on 05.06.2024. Feeling aggrieved the petitioner has challenged the aforesaid order.

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3. Learned counsel for the petitioner contends that learned Trial Court erred in dismissing the application moved by the petitioner. There was sufficient evidence adduced by the petitioner to establish violation on part of the respondent of the judgment and decree passed on

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19.02.2011. Respondent had not only constructed the water tank but had also been raising construction of three storeyed building over the suit land. The violation of judgment and decree was writ large.

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5. I am not convinced with the submissions made

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for the petitioner. The points urged in this petition have already been raised before the learned Executing Court and had been deliberated at length while passing the impugned order on 05.06.2024.

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5(i). The petitioner had himself stepped into the witness box as AW-1. In his statement, he merely stated that the suit property, measuring 118 bighas, was joint between the parties, but admitted that houses of the parties had been constructed separately over the land and further that the parties are residing in separate houses. That the petitioner had constructed his house in the year 1993, whereas, respondent had raised construction of his house in the year 1994-95.

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Significantly, petitioner admitted that dispute between the parties was with respect to the joint property. He has also stated that the matter in respect of the partition

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of the joint property was pending before the Revenue Courts.

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5(ii) Besides appearing in the witness box himself, petitioner produced one Sh. Hari Krishan as AW-2. Noticeably, AW-2 had shown his inability to say anything about violation of judgment and decree dated 19.02.2011.

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5(iii) The evidence produced by the petitioner was not sufficient to conclude, that the judgment and decree dated 19.02.2011 had been violated by the respondent or that respondent had raised construction of a building over the suit land or that he had removed the trees from the suit land, or that he had raised water tank over the suit land after the passing of judgment and decree dated 19.02.2011. Out of two witnesses produced on behalf of the petitioner, as already noticed earlier, AW-2 did not support the case of the petitioner, whereas, AW-1 was the petitioner himself. No documentary evidence in the form of any certificate, report, demarcation report etc. was proved on record to establish the contention. The photographs placed on record were only marked and not proved in accordance with law. It could not be demonstrated from the photographs as to when were they clicked, the land in question was not identified. It was the

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case of the petitioner that the complaint was lodged by him with the police on 05.05.2016. However, no police official was

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also examined to prove the alleged change in the nature of the suit land. The allegations made in the application were not corroborated.

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5(iv) As against the evidence led by the petitioner, the respondent had himself admitted not only in his written statement, but also as RW-1, that he had just renovated his old kitchen inasmuch as the old slabs were replaced by two new slabs having same length and width and were put in the same area. This was in the house of the respondent, that was already there. This fact has also come in the statement of the petitioner himself that respondent’s house was constructed over the suit land in the year 1994.

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In view of the evidence, learned Trial Court justly concluded that the petitioner had failed to substantiate and prove violation of the judgment and decree dated 19.02.2011. Hence, no case for interference with the impugned order is called for. The present petition is accordingly dismissed.

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