Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 2918 of 2018 Petitioner :- Smt. Nirmala Kumari And Another Respondent :- Smt. Kusum Jain And Another Counsel for Petitioner :- Vijay Kumar,Ajit Kumar Srivastava
Hon'ble Manoj Misra,J.
This matter has been nominated to this Bench by Hon'ble the Chief Justice.
Heard learned counsel for the petitioners.
The present petition has been filed challenging the orders dated 26.08.2013 and 02.04.2018 passed by the Court of IInd Civil Judge (Jr. Div.), Kasganj and the Additional District & Session Judge, Court No. 4, Kasganj in Execution Case No. 16 of 2002 and Civil Revision No 19 of 2013, respectively.
A perusal of the record would reveal that the predecessor-in-interest of the respondents, namely, Nandlal and Om Prakash, had instituted Original Suit No. 120 of 1960 for grant of permanent prohibitory injunction to restrain the defendants from covering the suit property and raising constructions over it. The suit was instituted against the petitioner no.1; her relatives; and predecessor-in-interest of the petitioner no.2. The defendants, in all, were 11 in number. The suit property was fully described in the plaint.
The defendants 7 to 11 contested the suit. In the written statement they specifically stated that they have no intention to cover the land or to raise any constructions thereupon.
In the said suit, an Amin report was called. Who submitted a report/map i.e. paper no. 51-A 2 disclosing the dimensions of the suit property.
The suit was decreed by judgment and decree dated 24.10.1963 passed by the Munsif, Kasganj and the Amin map paper no. 51-A2 was made part of the decree and the disputed portion in respect of which perpetual injunction was granted restraining the defendants from covering or raising any constructions thereon was shaded by red colour in the Amin map. 51- A2.
It is not in dispute that the decree passed in the said suit attained finality.
In the year 2002, execution case no. 16 of 2002 was filed by the respondents-Smt. Kusum Jain and Bhartendra Kumar Jain, successor-in- interest of the decree-holder, by alleging that on 13.06.2002, the judgment- debtor-Smt. Nirmala Kumari, without any authority, had raised constructions over the land despite decree. To remove the constructions raised, a prayer was made in the execution application.
In response to the execution application, the petitioners filed a joint objection. In the objection passing of the decree and identity of the property, as disclosed in the map, which formed part of the decree, was not disputed. However, it was claimed that they had not raised any new constructions and the constructions that were standing on spot had been in existence since the time of passing of the decree. They also raised an objection that the execution application was barred by limitation. It was pleaded that, in fact, the other side had been trying to raise constructions, as a result, Original Suit No. 350 of 2002 was instituted by the petitioner no.2 against them; being aggrieved by institution of the said suit, with a mala fide intention, the execution application was filed.
Affidavits were filed by the parties to support their case. They were also cross-examined on their statement made in the affidavit; and an Amin report was also called for by the Execution Court. The Amin report disclosed existence of constructions on spot. Along with report a Map was also submitted. No objection was filed to the amin report and the map prepared/submitted by him.
The execution court, after comparing the two maps - one prepared while passing the decree and the other prepared during the course of execution proceeding - found that additional constructions were raised on the shaded area of the map which formed part of the decree and, accordingly, directed removal of those contructions by treating them to be violation of the decree.
Against the order of the execution court dated 26.08.2013, the petitioners filed Civil Revision No. 19 of 2013.
Before the Revisional Court, a plea was taken that no new constructions were raised and all those constructions had been in existence since the time of institution of the suit; and that the execution court had not properly considered the evidence and the material brought on record and, otherwise also, the execution proceeding was barred by limitation.
The revisional court scrutinized the material brought on record and after comparing two maps - one prepared at the time of passing of the decree and the other prepared by the Amin appointed during execution proceeding - came to the conclusion that new constructions had been raised over the suit property after passing of the decree.
In respect of the plea as regards execution proceeding being barred by limitation, the revisional court observed that according to the stand taken by the decree-holder, constructions were raised on 13.06.2012 whereas the execution application was filed on 10.07.2002 therefore, since the decree was of permanent prohibitory injunction, the period of limitation would commence from the date when the decree was violated. As such the execution application was not barred by limitation.
On the issue that the execution court had not properly considered the oral evidence, the revisional court examined the material on record and came to the conclusion that since the comparison of the two maps - one prepared at the time of passing of the decree and the other prepared at the time of filing the execution application - clearly disclosed that there were additional constructions made, after passing of the decree, the oral evidence was not of much relevance, particularly, when no objection was filed to the Amin report and the map prepared by him during the course of execution proceeding. Accordingly, the revisional court did not find any illegality in the order passed by the execution court and dismissed the revision preferred by the petitioners.
Assailing the orders of the two courts below, the learned counsel for the petitioners submitted that the case of the petitioners had through out been that constructions found at the spot had been in existence since the time of passing of the decree and the Amin commission report also did not disclose that the constructions were new constructions and, therefore, the burden was on the decree-holder to establish that those constructions were new constructions and not constructions in existence since the time of passing of the decree. It has also been submitted that the decree was of the year 1963 and the execution application was filed in the year 2002, much after expiry of 12 years, therefore the execution proceeding was barred by limitation. He also urged that statement of the witnesses recorded during the course of execution proceeding have not been properly considered by either the execution court or the revisional court. It has thus been prayed that the orders passed by the courts below be set aside and the matter be remanded back.
I have given thoughtful consideration to the submissions of the learned counsel for the petitioners and have perused the record.
The facts as regards which their exists no dispute are : (a) that in the original suit no. 120 of 1960, no plea was taken by the defendants that the constructions had been in existence since before the institution of the suit or that they had been raised during the suit proceeding, rather, the stand of the defendants was that they do not intend to cover the land or to raise construction; (b) that in the execution proceeding the judgment-debtor had not taken a specific stand as to when they had raised constructions although they pleaded that the constructions were there and had been in existence since the time of institution of the suit; and (c) that the map prepared by the Amin and the report submitted by the Amin during the execution proceeding was not challenged or disputed and the comparison of the two maps - one prepared at the time of the suit and the other prepared during execution proceeding - indicated change in the status of existing constructions, suggesting raising of fresh constructions.
In view of the aforesaid undisputed facts, the stand taken by the petitioners that the constructions had been in existence since the date of institution of the suit does not appear to be correct because had that been the case, a plea would not have been taken in the suit that the defendants do not intend to cover the land or raise constructions. Rather they would have taken a plea that the constructions had been in existence from before therefore the suit for permanent prohibitory injunction was not maintainable in absence of any prayer for removal of constructions.
Further, comparison of the two maps had revealed that certain constructions were found that were not in existence at the time when the suit map was prepared.
Under the circumstances, as to when those constructions were raised, the burden was on the judgment-debtor to prove by giving specific details about raising of those constructions. The stand of the judgment-debtor that those constructions had been in existence since the time of passing of the decree does not at all inspire confidence inasmuch no such plea was taken during the course of the suit. Rather, in the suit, plea was taken that the defendants have no intention to cover the land or raise constructions.
Moreover, the map prepared by the court appointed Amin at the time of decree of the suit did not disclose constructions over the shaded portion that appear now. Therefore, in absence of any specific plea or stand or statement on the part of the petitioners/judgment-debtor as to when those constructions were raised and whether those constructions were raised beyond a period of 12 years from the date of filing of execution application, the plea that the execution application was barred by limitation had no substance and was rightly rejected by the court below, particularly in view of specific plea of the decree holder that they were raised in 2002. As from the comparison of two maps, raising of fresh constructions have been proved, despite operation of the decree, no fault can be found with the order impugned.
For the reasons discussed above, this Court does not find any legal infirmity in the orders impugned that may call for interference in exercise of constitutional powers.
The petition is dismissed.
Order Date :- 30.4.2018 Sunil Kr Tiwari