Himachal Pradesh High Court
CR/189/2003 of BALDEV SINGH Vs BHAG SINGH on 30 December 2008
COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 189 of 2003 Date of decision: 30.12.2008 Baldev Singh ... Petitioner Versus Bhag Singh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. Adarsh Sharma,
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
Facts
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 189 of 2003 Date of decision: 30.12.2008
Baldev Singh
... Petitioner
Versus
Bhag Singh … Respondent
Coram :
The Hon’ble Mr. Justice V.K. Ahuja, Judge.
Whether approved for reporting?[1] No.
For the petitioner: Mr. Adarsh Sharma, Advocate, vice Mr. Ashok Sharma, Advocate.
For the respondent:
Mr. K.S. Banyal, Advocate.
V.K. Ahuja, J. (Oral):
This is a Civil Revision filed by the petitioner under Section 115 C.P.C. against the order dated 10.12.2002 passed by the learned Sub Judge Ist Class, Barsar, dismissing the petition filed by the petitioner under Order 21 Rule 32 C.P.C., for taking action against the respondent for disobedience of the judgment and decree passed by the Court on 7.12.2001.
Briefly stated, the facts of the case are that the petitioner had filed a Civil Suit as against the respondent. The plea raised by the petitioner was for grant of a decree of demarcation and that the respondent be restrained by a decree of perpetual injunction from raising any construction over the land in suit till partition. The parties 1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
compromised and a compromise decree was passed on 7.12.2001, vide which the petitioner was granted the relief of perpetual injunction as against the respondent restraining him from raising any construction over the suit land comprised in Khasra No. 707 measuring 1.2 Kanals till partition. It was also agreed that the plaintiff will also not raise any construction over the disputed land till partition as agreed to by the parties. The petitioner filed the present application under Order 21 Rule 32 C.P.C., alleging that the respondent has disobeyed the decree and started raising construction over the suit land on 7.12.2001 itself. It was alleged in the petition wrongly that a decree was passed on 8.12.2001 and that the respondent started raising construction on 8.12.2001 over the suit land by raising pauri (stair case) and completed the construction on 10.12.2001. It was alleged that after this, the respondent had also started construction work of first floor over the suit land and has thus, violated the judgment and decree dated 7.12.2001. In reply, the respondent denied the allegations of having raised any new construction over the suit land.
On the pleadings of the parties, the following issues were settled by the learned trial Court:-
1. Whether the respondent has disobeyed the decree of the court as alleged. If so, its effect? of the court as alleged. If so, its effect?
OPP
2. Whether the petitioner has a cause of action?
OPP
3. Relief.
Parties led evidence and the learned trial Court vide its impugned judgment dismissed the petition filed by the petitioner under Order 21 Rule 32 C.P.C., praying for attachment of the suit property.
I have heard the learned counsel for the parties and have gone through the record of the case.
On appraisal of the petition filed by the petitioner, it is clear that the petitioner had alleged at one place that a decree was passed on 8.12.2001, but subsequently it was alleged that it was passed on 7.12.2001 and the date of starting of construction work by raising pauri/stair case was mentioned as 8.12.2001 and the work was completed on 10.12.2001. Thereafter, the respondent started construction of first floor over the suit land. Coming to the evidence, the petitioner stepped into the witness box as PW-1 and he stated that the construction work was started by the respondent on 7.12.2001 itself, though in the petition, the date was alleged as 8.12.2001. He further stated that the work of construction of stairs was completed on 7[th]/8[th/9th], which is contrary to the allegations made in the petition. He further stated that thereafter, the respondent raised four rooms construction and Verandah on the upper storey. In further cross-examination, he stated that this construction has been raised on Khasra No. 707. He admitted that ad-joining to Khasra No. 707, there is Abadi in Lal Lakir and both the parties have got their houses in Lal Lakir. He admitted that the house of the respondent is very old, which was constructed in 1963-64 and three rooms have been added. He no where clarified that these three rooms have been added over the construction already existing in the Lal Lakir or these have been raised newly in Khasra No. 707, which was in dispute. He stated that he had submitted an application to the Panchayat on 8.12.2001, but none from the Panchayat came to the spot.
PW-2 Smt. Amro Devi is the wife of petitioner, who filed her affidavit alleging that after the decree was passed on 8.12.2001, the respondent started raising construction of pauri over the suit land and had completed it. In cross-examination, she stated that she was stating about Khasra No. 707. She stated that demarcation had taken place in her presence but had not stated anything about the date of demarcation. This is in contradiction to the statement of PW-1 i.e. the petitioner, who never stated that any demarcation was taken prior to the passing of the decree or after the passing of the decree. She also stated that houses raised are old and has not stated that any new construction was raised and further over which portion the addition was made to the already existing construction of the respondent in Lal Lakir or over disputed land.
PW-3 Paras Ram, Ward Panch, had alleged that the construction was started by the respondent on 8.12.2001 and he went to the spot and found that the construction work of the stairs case was going on over the suit land i.e. Khasra No. 707 on behalf of the respondent. He admitted having a dispute with the respondent, since both the parties had contested election for Ward Panch. He no where stated that this construction was raised newly or any addition was made to the old construction raised by the respondent. He admitted that he had not been asked by the Pradhan to visit and had gone to the spot of his own, which showed his interestedness. He admitted that the houses of the parties are existing for the last 8-10 years.
To rebut this evidence, respondent appeared as RW-1, who has stated that his house is existing for the last 20-25 yrears.
Earlier there was only one storey and he added the second storey on 7.12.2001 and raised the stairs case at that time.
From the above discussion of the evidence, it is clear that that it was for the petitioner to allege and prove that new construction has been raised by the respondent over the suit land, in which he had failed. The evidence led suggests that the construction was raised by the respondent over the already existing structure in Lal Lakir. There is nothing on record to show that any demarcation was taken by the petitioner to prove over which portion of the land whether owned by the petitioner or in Lal Lakir, new construction has been raised by the respondent. The proceedings under Order 21 Rule 32 C.P.C. are quasi criminal in nature and the respondent cannot be held guilty merely on probabilities. The standard of proof required in such case has to be less than criminal case but more than a civil case. Until and unless there is cogent and reliable evidence that the respondent has violated the order passed by the Court, he cannot be held guilty and punished accordingly merely on probabilities.
From the above discussion, it is clear that the findings recorded by the learned trial Court are sustainable in the eyes of law that the petitioner has failed to prove that the respondent has committed contempt of the orders of the Court.
In view of the above discussion, I accordingly hold that there is no merit in the revision petition filed by the petitioner, which is dismissed. However, the parties are left to bear their own costs.
December 30, 2008 (BSS)
V.K. Ahuja ) Judge