E. S. A. No. 15 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : E. S. A. No. 15 of 2011 (O&M)
Date of Decision : June 01, 2011
Kaptan and another .... Appellants
Vs.
Balwan Singh and others .... Respondents
CORAM : HON’BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Alok Jain, Advocate
for the appellants.
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L. N. MITTAL, J. (Oral) :
C. M. No. 6911-C of 2011 :
Allowed as prayed for.
Main Appeal :
Objectors Kaptan and Ram Chand, having failed in both the
courts below, have filed the instant second appeal.
Suit filed by Hukam Chand – original plaintiff (since deceased
and represented by respondents no.1 to 3 herein as his legal representatives)
was dismissed by the trial court, but was decreed by first appellate court
directing defendant no.1 – Gram Panchayat (respondent no.4 herein) to
E. S. A. No. 15 of 2011 (O&M) 2
remove encroachment from the land of the plaintiff. Accordingly,
respondents 1 to 3 filed execution petition for execution of the said decree.
Appellants herein filed objections in the execution petition alleging that the
decree-holders, by taking undue benefit of the decree sought to be executed,
want to take possession of public street lying in front of their house. The
disputed land is not part of plot of the decree-holders. If possession to the
extent of 9′ width is given to the decree-holders, width of the street would
be reduced from 16½’ and the entire village would suffer.
Decree-holders resisted the objections and inter alia pleaded
that the question of encroachment has already been adjudicated upon in first
appeal, in which the decree was passed.
Learned Executing Court i.e. learned Civil Judge (Junior
Division), Sonepat, vide impugned order dated 04.06.2010, dismissed the
objections preferred by the appellants herein. First appeal preferred by the
Objectors against the said order has also been dismissed by learned
Additional District Judge, Sonepat, vide impugned judgment dated
17.05.2011. Feeling aggrieved, Objectors have filed the instant Execution
Second Appeal.
I have heard learned counsel for the appellants and perused the
case file.
Learned counsel for the appellants vehemently contended that
the lower appellate court, while decreeing the suit of respondents no.1 to 3,
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wrongly relied on order passed by Collector in proceedings under the
Punjab Village Common Lands (Regulations) Act, 1961 (in short – the Act).
The contention cannot be accepted. Decree passed by the first appellate
court, which is sought to be executed, has not been set aside by any Court.
The said decree is, therefore, executable. The Executing Court, in execution
proceedings, cannot adjudicate upon the question whether the said decree
was passed on wrong or proper appreciation of evidence. This cannot be
within the domain of the Executing Court. If the same issue has to be
decided again by the Executing Court, it would mean that the Executing
Court would sit over the finding of the first appellate court, which has
already attained finality. The Executing Court has no jurisdiction to
determine whether finding in the judgment and decree is based on wrong
appreciation of evidence. The entire basis of the contention raised by
counsel for the appellants is completely fallacious, misconceived and
meritless.
Learned counsel for the appellants, relying on a judgment of
Hon’ble Supreme Court in the case of Gram Panchayat of Village
Naulakha vs. Ujagar Singh reported as 2000 (4) R. C. R. (Civil) 749,
contended that possession of part of the public street is sought to be taken
by the decree-holders in execution of the decree and this cannot be
permitted. The contention is again devoid of force. In case of Gram
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Panchayat of Village Naulakha vs. Ujagar Singh (supra), decree passed
against the Gram Panchayat was found to be collusive. In the instant case,
however, the appellants/Objectors have not even alleged in their objections
that the decree sought to be executed is collusive. Accordingly, the
aforesaid judgment is not applicable to the facts of the instant case.
For the reasons aforesaid, I find no merit in the instant second
appeal. Objections preferred by the appellants have been rightly dismissed
by the courts below. The appeal is accordingly dismissed in limine.
June 01, 2011 ( L. N. MITTAL ) monika JUDGE