Bijender and Others vs Govind Deen Dayal and Others

L.N. Mittal, J.

CM No. 6728-CII of 2012

Allowed as prayed for.

CM No. 6729-CII of 2012

The application is allowed and Annexures P-1 to P-9 are taken on record subject to all just exceptions.

Main Case

Judgment Debtors (JDs) have filed this revision petition assailing order dated 24.12.2011 Annexure P-8 passed by the executing Court thereby dismissing application Annexure P-6 moved by the JDs.

Suit filed by respondent No. 1-plaintiff against predecessors-in-interest of petitioners and proforma respondents No. 2 and 3 was decreed by trial Court vide judgment dated 20.01.2009 Annexure P-3 for possession of 264 X 4 Feet i.e. 117 square yards land of plaintiff being part of khasra No. 860/2 having been found encroached upon by the judgment debtors vide demarcation report dated 05.11.2008 Annexure P-2 made by the Local Commissioner. Respondent No. 1-Decree Holder (DH) filed execution petition for execution of the aforesaid judgment and decree. Revenue Authorities vide report dated 03.03.2011 Annexure P-4 delivered possession of the encroached land to the DH.

Petitioners filed application Annexure P-6 alleging that while delivering possession in execution of the decree, possession of excess land up to 7 feet has been delivered to the DH. Accordingly JDs sought restoration of possession of the excess area.

DH by filing reply Annexure P-7 denied averments of the JDs. It was denied that possession of any excess land has been delivered to him.

Learned trial Court vide impugned order dated 24.12.2011 Annexure P-8 dismissed application Annexure P-6 moved by the JDs. Feeling aggrieved, JDs have filed this revision petition to assail the said order.

I have heard learned counsel for the petitioners and perused the case file.

Counsel for the petitioners vehemently contended that even in report of Local Commissioner Annexure P-2, passage of 2 feet width left by the JDs has been mentioned but now the passage at the spot is 1 foot vide only and thus DH has taken possession of remaining 1 foot wide land of the JDs. The contention cannot be accepted. No such plea has been taken by the JDs in their application Annexure P-6. On the contrary, in application Annexure P-6, JDs alleged that DH has constructed wall upto 7 feet in excess of the area mentioned in report Annexure P-2. Counsel for the petitioners contended that the DH has taken possession of 17 square yards land in excess of the decreed land and width of the said land is 1 foot. When pointed out that in application Annexure P-6, dimension of 7 feet only has been mentioned, counsel for the petitioners contended that 7 feet might be the length of the excess land. If the excess land is 7 feet X 1 foot, it would be less than 1 square yard and not 17 square yards. There is also nothing on record to depict that DH has taken possession of any excess area. The contention regarding excess area of 17 square yards raised by counsel for the petitioners has not even been mentioned in application Annexure P-6. For the reasons aforesaid, I find that there is no perversity, illegality or jurisdictional error in impugned order of the executing Court so as to warrant interference by this Court in exercise of revisional jurisdiction u/s 115 of the Code of Civil Procedure. The revision petition lacks any merit and is accordingly dismissed in limine.