Challenge is against Ext.P9 order whereby the execution court felt that in order to decide the controversy involved in the execution proceedings, it is necessary to take evidence in the matter. 2. The petitioner before this Court obtained a decree to which the claim petitioner was not a party. The decree holder sought to put up a boundary along the boundary line determined as per the Commissioner's report. At that time, the 1st respondent before this Court filed E.A.No.456/2013 taking objection to the putting up of boundary along the J.K line shown in Ext.P1.
3. The complaint of the claim petitioner was that while she had put up a boundary in pursuance to the decree obtained by her as against the petitioner herein, she had left 1 metre width of way to go to temple and beyond that 1 metre width of way, she had put up a boundary. She complains that by the present decree to which she is not a party, that portion of land is sought to be interfered with. The petitioner filed objection to the claim petition and pointed out that the 1st respondent had accepted the Amin's report and also the satisfaction of the decree and in the light of the said fact it comes too late in the day to say that the decree was executed leaving 1 metre width of way from her property and boundary was not laid along the boundary line shown in the suit.
4. The court below, after hearing both sides and also after perusing the materials available before it, felt that the matter could not be decided from the materials now available and evidence needs to be taken in the matter. Therefore, the decision was deferred for consideration.
5. Learned counsel appearing for the petitioner very vehemently contended that there is nothing that remains to be determined in the present proceedings as the 1st respondent herein had accepted the satisfaction of the decree in her case as could be seen from Ext.P5 report of the Amin. After having put up boundary along the boundary line as per the decree to which the petitioner was a party and also after having accepted the satisfaction of the decree, she cannot be heard to say that she had left a parcel of land i.e. 1 metre width property. That would go against Ext.P5. The court below ought not to have accepted such a claim on behalf of the petitioner.
6. Admittedly, petitioner was a party to the suit in which the 1st respondent obtained a decree with regard to laying of boundary. So also admittedly the 1st respondent is not a party to the suit in which the petitioner obtained a decree. It was while executing the decree obtained by the petitioner that objection was taken by the 1st respondent in the claim petition pointing out that under the pretext of laying boundary as per the decree to which she is not a party, the attempt of the petitioner is to annexe a portion of her land. The petitioner, on the other hand, placed considerable reliance on Ext.P5, Amin's report in the suit in which the 1st respondent obtained a decree as against the petitioner herein.
7. Ext.P5 can at best amount to an admission. It is for that person who has made the admission to explain the admission. For the reasons best known to the petitioner, she chose not to make the 1st respondent a party to the suit in which she obtained a decree though by laying boundary as per her claim in the plaint, it might affect the property rights of the 1st respondent also.
8. The claim of the petitioner is that the 1st respondent has obtained a decree in her favour in another suit and laid boundary as per the decree in that suit and therefore no further lis remains between the petitioner and the 1st respondent. As to whether the claim of the claim petitioner that she had left 1 metre width of way and thereafter put up boundary is a matter to be determined after taking evidence. It is precisely for those reasons the court below felt that from the materials now available it could not be said that the claim petitioner has no grievance. That, according to the lower court, can be determined only after further evidence is adduced in the matter and more materials are made available before the court.
9. The view taken by the lower court seems to be fully justified in the facts and circumstances of the case. If the court below felt that from the materials now available, it is not possible to ascertain whether the claim of the claim petitioner is just and reasonable and further evidence is required in the matter, it could not be found fault with. At any rate, no conclusion is drawn by the court below as against the petitioner as of now. It is only that the decision in the matter is deferred to a future point of time. It could not be said that there is any irregularity, illegality or impropriety in the order warranting interference under Article 227 of the Constitution of India. However, the fact remains that the suit is of the year 1991 and almost nearly 2 ½ decades have elapsed.
In the light of the above fact, execution court is directed to expedite the execution and every endeavour may be made to dispose of the matter within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
smp P.BHAVADASAN JUDGE