Punjab-Haryana High Court
Raj Kumar And Ors. vs Parshotam Dass And Ors. on 23 January, 2002
JUDGMENT M.M. Kumar, J.
1. This is a revision petition challenging the order dated 15.4.1981 passed by the Sub Judge 1st Class, Narwana dismissing the application of the petitioner-decree holder filed under Order 21 Rule 32 of the Code of Civil Procedure seeking execution of the decree passed in their favour on 14.10.1968.
2. The facts of the case are that one Bansi Lal filed a suit against respondent-judgment debtors No.l to 4 and respondent-judgment debtors No.6 to 14. Some of them are now represented by their legal representatives. The suit was decreed in favour of the petitioners/decree holders. The respondent-judgment debtors No.l to 4 were restrained from raising any other construction on the suit land without getting it partitioned with other share holders. In the application filed for execution of this decree under Order 21 Rule 32 of the Code respondent No. 5 Objector (now represented by his legal heirs 5-A to 5-F) was impleaded for the first time and allegation levelled against him was that he has raised construction over the suit land. It was further asserted that having violated the terms of decree passed by the Civil Court on 14.10.1968 he is guilty of flouting the orders of the Civil Court. It was alleged that the respondents-judgment debtor No.l to 4 has raised construction after the decision of the appeal and, as such, the construction is liable to be demolished
3. Respondent No.5 (now represented by respondents No.5-A to 5-F) filed reply to the application and raised objection that the room allegedly constructed by him was already in existence before he had purchased the property on 22.11.1978 from Smt. Darapoti, Parshotam Dass and Sat Parkash for the consideration of Rs.5,280/- and his vendors were in exclusive possession of the suit property. He states that a room made of kutcha bricks was in existence and Purshotam Dass had a bi-cycle repair shop in that room. According to the objector/respondent No.5, he never raised any new construction and was simply getting some repair work done. He relied on an order dated 24.5.1972 passed by the learned Additional District Judge wherein he had ordered the demolition of construction. From that order it is shown that the construction was already in existence and no question of raising new construction would arise. It was further asserted by respondent No.5-objector that he had purchased the suit property from Smt. Daropati Devi who was not even party to the previous suit and, as such, decree is not executable. It was subsequently complained by making an application alleging that respondents No.l to 4-judgmcnt debtor have violated the stay order and had constructed a room to which respondent No.5-objector filed reply pointing out that in appeal filed by the respondent No.5-objector, the learned Additional District Judge, Jind had stayed operation of the judgment and decree and it was during that period respondent No.5-objector had completed construction. He claimed that he never violated or dis-obeyed any order of the Court. The executing Court framed the issues as to whether respondent No.5-objec-tor (Bhalla) has dis-obeyed the injunction decree dated 14.10.1968 and as to whether the decree was executable against respondent No.5-objector. After taking into consideration the documentary as well as oral evidence, the executing Court came to the conclusion that it is not clear as to whether the room was in existence at the time when Bhalta purchased the suit property from Smt. Daropati, Parshotam Dass and Sat Parkash. and that the petitioners/decree-holders have failed to prove that Bhalla dis-obeyed the injunction decree dated 14.10.1968. The finding on this issue as given by the Sub-Judge, 1st Class, Narwana reads as under:
"There is no gain saying of the fact that Bhalta has purchased the suit property and has also applied for construction to the Municipal Committee. Smt. Daropati one of the vendors was not a party to the main suit in which the impugned decree sought to be executed was passed. Bhalla himself was also not a party to the suit in which the impugned decree was passed. At the costs of repetition, it may again be mentioned that it is nowhere the grievance of the decree holders that the other JDs are violating the terms of the injunction decree. In fact, the impugned decree for permanent injunction is not being executed against the other JDs. No act of invasion has been alleged or asserted against the other JDs. In view of the authority reported as AIR 1931 Bombay 280 (Amrit Lal v. Kanti Lal) wherein it has been held "The decree for injunction does not run with the land and in the absence of any statutory provision, such a decree cannot be enforced against the surviving members of a joint family or against a purchaser from a judgment-debtor. But where the sons of the judgment-debtor are brought on records as his legal representatives under Section 50 the decree can be executed against them and so also against the transferees from the legal representatives, under Section 52, T.P. Act. On the same principle viz. that they are bound by the result of the execution proceedings under Section 52, T.P. Act, the transferees from the original judgment debtor during the pendency of execution proceedings against them, can be held to be similarly bound and are liable to be proceeded against in execution." In my opinion, the present decree is not executable against Bhalla-objector. Hence, this issue is answered in favour of the objector and against the decree-holders."
4. Another issue framed on 6.9.1980 was as to whether the JDs violated the stay order. The findings returned are that there was no violation of the stay orders and the same reads as under:
"As discussed above under issue No.l it is nowhere categorically proved by the decree-holders as to when the impugned kotha or room was constructed by Bhalla Ram-objector. Mere surmises or conjectures cannot take the place of proof, It was incumbent upon the decree-holders to prove the violation of stay order as contempt proceedings are quasi criminal in nature. The contemner is entitled to benefit of doubt. It is positive stand of Bhalla-objector in this case that he stopped the construction when he was served with the stay order. But in the appeal preferred, the operation of the stay order was stayed as is clear from the copy of order Ex.O.8. It is further stated by Bhalla-objector in his statement as OW4 that when he raised construction when the operation of the stay order was stayed by the learned Appellate Court. Thus Bhalla Ram-objector has explained the construction in a very plausible manner. Thus, this issue is held as not proved and is decided against the decree holders and in favour of the Bhalla objector."
5. Shri S.P. Gupta, learned counsel for the petitioners-decree holders has argued that the onus to prove the purchase of the room by Bhalla was on him as he was one who had raised the objection that room was in existence. According to the learned counsel, the trial Court committed grave error in law by placing the burden of proof of showing the recital of the sale deed dated 22.12.1976 on the petitioners-decree holders. The learned counsel has drawn my attention to that portion of order where the trial Court has observed that on the failure of objector/respondent No.5 Bhalla to produce the sale deed dated 22.12.1976 the petitioners-decree holders could have ted secondary evidence by obtaining a certified copy from the office of Sub Registrar. Therefore, he contends that once the proof in writing from recital is established that Daropati Devi sold to objector/respondent No.5 Bhalla the plain plot and not a room constructed on the land and once it is shown then objector/respondent No.5 Bhalla is liable to be sent to civil imprisonment by virtue of provision under Order 21 Rule 32(3) of the Code.
6. On the other hand, Shri Rajesh Chaudhary, learned counsel for respondent No.5A to 5F have drawn my attention to the reply filed by objector/respondent No.5 wherein it has been categorically pleaded that already that there was a room made from kutcha bricks in existence when he purchased the property from Smt. Daropati Devi widow of Parshotam and Sat Parkash. He has further asserted in para No.4 that he is not raising any new construction but merely repairing the room. He also referred to the statement of Raj Kumar OWI where Raj Kumar has stated that there was one room constructed on the suit land and in that room one Lal Chand used to carry on the work of cycle repairs. He has further stated that Bhalla had raised 4 feet wall. On the basis of stand taken by objector/respondent No 5, Shri Rajesh Chaudhary has argued that it cannot be concluded that objector/respondent No.5 Bhalla has flouted either the decree of the Court dated 14.10.1968 or any stay order. He has further argued that primary burden to prove the violation of the terms of the decree lies on the petitioners/decree holders and the trial Court was right in placing the burden on then. According to the learned counsel, the proceedings of contempt are quasi criminal in nature and- unless the allegations are proved by cogent evidence it is not safe to convict a person. Therefore, he has further argued that since there is no cogent evidence on record and objector/respondent No.5 is not shown to have committed any violation of the decree, the order of the trial Court must be maintained.
7. I have thoughtfully considered the submissions made by the learned counsel for the parties and perused the record with their assistance and I am of the view that the revision petition is liable to be dismissed because petitioner/decree holders have failed to prove on record any violation of the decree or any of the stay order. There is no evidence much less cogent evidence to substantiate the allegation concerning violation of decree dated 14.10.1968 and the stay order. The onus of proof was on the petitioners/decree holders to prove their assertions which they have remained unable to discharge. It is well settled law that in cases concerning under order 21 rule 32(3) of the Code where allegations of violation of terms of a decree are made, the evidence required to prove those allegations is equivalent to the one required in criminal cases and the charge has to be prove to the hilt. Moreover, Smt. Daropati Devi who was one of the vendor of the room sold to objector/respondent No.5, was not even party to the suit and, therefore, cannot seek execution of that decree. It has further come on record that decree was sought to be executed only against objector/respondent No.5 Bhalla and not against judgment debtor set No.l. Still further Bhalla was also not party to the decree. Therefore, in the facts and circumstances of this case, it is not possible to hold objector/respondent No.5 guilty of violation of either the decree dated 14.10.1968 or any of the stay order. There is no plausible reason to differ with the conclusion reached by the trial Court that the execution itself is not maintainable.,
8. For the reasons recorded above, this revision petition fails and is dismissed.