Himachal Pradesh High Court
_________________________________________________________________ vs Narain Dass & Anr on 1 March, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No.162 of 2023 Decided on: 1st March, 2024 .
_________________________________________________________________ Surender Pal ....Petitioner-Decree Holder Versus Narain Dass & Anr. ...Respondents-Judgment Debtors _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting?
_________________________________________________________________ For the petitioner : Mr. H. S. Rangra, Advocate.
For the respondents : Mr. G.R.Palsra, Advocate, for respondent No.1-JD.
Jyotsna Rewal Dua, Judge The objections preferred by respondent No.1- Judgment Debtor to the execution petition filed by the petitioner-Decree Holder have been allowed by the learned Executing Court vide order dated 01.09.2023. Consequently, the execution petition moved by the petitioner-Decree Holder has been dismissed. Feeling aggrieved, the Decree Holder has 1 Whether reporters of Local Papers may be allowed to see the judgment? yes ::: Downloaded on - 04/03/2024 20:30:45 :::CIS -2- come up in the instant revision petition.
2. Facts .
2(i). A Civil Suit No.87 of 2006 for permanent prohibitory and mandatory injunction, instituted by the petitioner-Decree Holder and proforma respondent No.2 on 21.12.2006 against respondent No.1-Judgment Debtor, was decreed by the learned Trial Court on 29.02.2012 in following terms:-
"...The defendant is restrained by way of permanent prohibitory injunction from causing interference or damage to the land of the plaintiffs comprised in Khasra Nos. 62, 69 and 68 by continuous allowing the water flowing through the Kuhal for running the Gharat, Decree sheet be prepared accordingly, parties are left to bear their own costs.
Respondent No.1 herein was restrained by way of permanent prohibitory injunction from causing interference or damage to the plaintiffs' land comprised in Khasra Nos. 62, 69 and 68 by continuously allowing the water to flow through Kuhal for running the 'Gharat'.
2(ii). The petitioner-Decree Holder filed an execution petition for enforcing the aforesaid decree. Grievance was ::: Downloaded on - 04/03/2024 20:30:45 :::CIS -3- raised that the judgment debtor was not obeying the decree and had continuously allowed the water to flow through the .
Kuhal for running the 'Gharat' and further that due to seepage and overflow of the water from the Kuhal, the cash crops of the plaintiff-Decree Holder were being damaged.
2(iii). Respondent No.1-Judgment Debtor filed objections to the execution petition. The gist of the objections r to was that the judgment debtor had not disobeyed the decree.
He had stopped the flow of Kuhal in compliance to the directions in the judgment. The Decree Holder, however lodged a complaint with the SHO concerned against stopping the flow of Kuhal water by the Judgment Debtor. It was the Decree Holder, who wanted the Judgment Debtor to allow the water to run in the Kuhal. The matter was compromised by the two before the police where the Decree Holder himself agreed for allowing the water to flow in the Kuhal at the end of respondent No.1- Judgment Debtor. It was also submitted in the objections that Kuhal water was being used by the residents of the village alike including the Decree Holder and the Judgment Debtor for irrigating their fields. The Judgment ::: Downloaded on - 04/03/2024 20:30:45 :::CIS -4- Debtor used Kuhal water for running his 'Gharat' also, however, for this purpose there was no containment-
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catchment of the water. The flow of water in the Kuhal was continuous. No damage whatsoever had been caused to the Decree Holder by any act of the Judgment Debtor.
2(iv). The parties led evidence in support of their respective claims. After considering the entire matter, learned r to executing Court found substance in the objections preferred by the Judgment Debtor. It was held that the evidence led by the Decree Holder was not sufficient to bring home the allegations regarding the alleged disobedience of the decree.
The objections were allowed and execution petition was dismissed vide impugned order dated 01.09.2023. In the aforesaid circumstances, the Decree Holder has taken recourse to present revision petition.
3. Submissions 3(i). Learned counsel for the Decree Holder unfold that learned executing Court had wrongly and illegally come to the conclusion that witnesses produced by the petitioner-Decree Holder in support of his allegations were not expert and, ::: Downloaded on - 04/03/2024 20:30:45 :::CIS -5- therefore, their statements could not be relied upon. It was further highlighted that Decree Holder's witnesses had proved .
percolation of water in his land on account of continuous flow of water in the Kuhal being allowed by the Judgment Debtor.
The Judgment Debtor had not complied with the decree dated 29.02.2012, which by way of permanent prohibitory injunction had, restrained him from causing interference or damage to the petitioner's land comprised in Khasra Nos. 62, 69 and 68 inasmuch as he had allowed the water to continuously flow through the Kuhal for running 'Gharat' in his land.
3(ii) Learned counsel for respondent No.1- Judgment Debtor defended the impugned order and submitted that learned executing Court had given due credence to the statements of all the witnesses. The impugned order is based upon the correct appreciation of pleadings and evidence on record and does not call for any interference.
4. Heard learned counsel for the parties and considered the case file. In my considered view, the impugned order does not suffer from any infirmity or material ::: Downloaded on - 04/03/2024 20:30:45 :::CIS -6- irregularity. This is for the following reasons:-
4(i). A perusal of the impugned order placed on record .
clearly indicates that learned executing Court had considered the statements of all the witnesses produced by the petitioner-Decree Holder. The Pradhan and Ward Member of Gram Panchayat Kotli appeared as AW-1 and AW-2, respectively. As per impugned order, they deposed having visited the spot on 09.11.2014 at the request of the Decree Holder; They had not associated any Revenue Officer nor did they identify the land visited by them; Their report Ex.AW-
1/A did not give details of khasra number or the area involved; They also stated that Kuhal was constructed by the gram panchayat, which was also responsible for its maintenance; The Kuhal does not overflow; Water only seeps through this Kuhal because of its continuous flow;
Respondent No.1 runs his 'Gharat' due to continuous flow of water in the Kuhal and that the water had not reached the poly house of the petitioner-Decree Holder.
In terms of the impugned order, the petitioner-
Decree Holder had stated that Kuhal water was being used by ::: Downloaded on - 04/03/2024 20:30:45 :::CIS -7- the residents of the village for irrigating their fields; Portion of the Kuhal passes through the land of respondent No.1- .
Judgment Debtor as well as the Decree Holder and also through the Government land. The petitioner-Decree Holder while appearing as AW-3 also admitted that the Kuhal does not flow throughout the year but only for about three months in a year (seasonal). The petitioner admitted there being no 4(ii) r to witnesses of spot with respect to overflowing of water from the Kuhal.
The impugned order reflects that the respondent No.1-Judgment Debtor examined three witnesses. RW-1 stated that Judgment Debtor in compliance to the decree had stopped the flow of Kuhal water. However, the Decree Holder had lodged complaint against this action to the concerned SHO; The matter was compromised by the petitioner-Decree Holder with the respondent No.1-Judgment Debtor; The police, thereafter ordered respondent No.1-Judgment Debtor to make way for continuous flowing of Kuhal water; Flow of Kuhal water was restored in his (RW-1's) presence. This witness has placed on record statement of the parties ::: Downloaded on - 04/03/2024 20:30:45 :::CIS -8- recorded before the police, Ex.-R1/2. The witness is also stated to have deposed that the water is led into Kuhal when .
it is required for the purpose of irrigation and it runs continuously in the Kuhal when water flow is heavy. That there is no containment or catchment of the Kuhal water by Judgment Debtor, rather the flow of the water is continuous.
The 'Gharat' of the Judgment Debtor actually runs due to continuous flow of water.
The Judgment Debtor appeared in the witness box as RW-2 and reiterated his objections that he had actually stopped the Kuhal water in compliance to the decree but had to make way for flowing of Kuhal water on account of the desire of the Decree Holder as narrated by RW-1 in his statement. He also stated that the Kuhal is seasonal and does not flow throughout the year. That his 'Gharat' runs only during rainy seasons when flow of water is heavy.
It has neither been contended nor demonstrated before me that factual observations made in the impugned order are incorrect.::: Downloaded on - 04/03/2024 20:30:45 :::CIS -9-
4(iii). In the backdrop of the evidence led by the parties, the observations and finding of the learned Trial Court are in .
order. The decree in hand did not place any responsibility on respondent No.1-Judgment Debtor to manage the flow of Kuhal water. The Decree was only to the effect of restraining him from causing interference or damage to plaintiffs' specified lands by allowing the continuous flow of water on account of running of his 'Gharat'. The impugned order does not show that the decree holder had led any evidence to prove management of Kuhal water by the Judgment Debtor. No such submission was made before me.
The impugned order also indicates that the Decree Holders did not lead any evidence regarding damage suffered by them due to running of 'Gharat' by respondent No.1- Judgment Debtor. The evidence led at best is to the effect that some water logging occurs due to percolation from Kuhal, but the evidence is also suggestive of the fact that the water logging occurs even when water runs through this Kuhal for the purpose of irrigation. It is an admitted position of the parties that Kuhal water is used not just by respondent ::: Downloaded on - 04/03/2024 20:30:45 :::CIS
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No.1-Judgment Debtor, but by the residents of the village including the petitioner-Decree Holder for irrigation. The .
findings of the learned Executing Court and conclusion drawn by it, therefore, are in order. Apart from contending that statements of petitioners' witnesses had not been properly appreciated by the learned Executing Court, no other submission was made for the petitioner- Decree Holder.
There is no evidence that the water logging occurs only because of running of 'Gharat' by respondent No.1-Judgment Debtor. No damage caused to the petitioner's-Decree Holder's land on account of running of 'Gharat' by the respondent No.1-Judgment Debtor, has been proved on record.
The evidence also suggests that respondent No.1- Judgment Debtor had attempted to act strictly in accordance with the decree by blocking the water flow in Kuhal, but the Decree Holders forced him to restore the flow of water by presenting complaint to the police, where the matter was compromised and respondent No.1-Judgment Debtor was compelled to make way for continuous flow of Kuhal water.::: Downloaded on - 04/03/2024 20:30:45 :::CIS
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In view of above discussions, no case for interference with the impugned order is made out.
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Accordingly, the present petition is dismissed.
The pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua
Judge
March 1, 2024
R.Atal r
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