The court upheld the legality of an ex-parte order for encroachment due to the petitioner's failure to present evidence, affirming the Executing Court's findings.

JUDGMENT

Vikas Bahl, J. (Oral)

This is the petition under Article 227 of the Constitution of India for setting aside the ex-parte order dated 07.12.2021 (Annexure P-6) passed by the Additional Civil Judge (Sr.Div.), Garshankar, District Hoshiarpur, whereby the application filed by respondent no.1 under Order 21, Rule 32 CPC was allowed on account of violation of the order dated 29.03.2017.

2. The petitioner had filed a suit for permanent injunction restraining the defendants-respondents from interfering in the possession of the plaintiffs in the property marked as ABCD shown in red colour in the site plan measuring 22 kanals 19 marlas bearing khasra no.3221/2522/2 comprised in khata no.371/60 to 615 as per jamabandi for the year 2006-07 situated in the area of village Rurki Khas, Tehsil Garhshankar, illegally and forcibly.

3. Respondent no.1 (defendant no.1) had filed a counter claim seeking permanent injunction restraining the plaintiffs from interfering into the lawful and peaceful possession of the counter claimants of the land measuring 34 kanals 19 marlas bearing khasra no.3311/3223/2522/7, 3222/2522, 3310/3223/2522, 3221/2522/1 marked as LMNOPQ shown in red and blue colours in the attached site plan.

4. The Additional Civil Judge (Sr.Div.), Garshankar vide judgment and decree dated 29.03.2017 granted the following relief to the counter claimants:-

"27. So far, as counterclaim of the counter-claimants/defendants No.1 and 2 is concerned, in view of the findings in issue No.4-A, counter claimant stands decreed with costs. The plaintiffs are restrained from interfering into the lawful and peaceful possession of the counter-claimants of the land measuring 34 kanals 19 marlas bearing khasra no.3311/3223/2522/7, 3222/2522, 3310/3223/252, 3221/2522/1 marked as LMNOPQ shown red and blue in colour in the attached site plan. Decree sheet be prepared and file be consigned to the record room."

It is not in dispute that the said judgment and decree has attained finality.

5. An application under Order 21, Rule 32 read with section 151 CPC was filed by respondent no.1-decree holder in which it had been stated that in spite of the fact that his counter claim with respect to land measuring 34 kanals 19 marlas, which was marked as LMNOPQ and was shown in red and blue colours in the site plan annexed with the counter claim, was allowed but after the passing of the decree, the petitioner-judgment debtor in the counter claim had encroached upon the land marked as ABCD shown in red colour in the site plan attached with the application out of khasra no.3222/2522, with dimensions, from eastern side 2 karams in width and from western side 4 karams in width and 102 karams in length and have included the same into their land in the evening on 30.04.2017. It is also submitted that they have constructed a water tank for the tubewell in the land of the applicant-decree holder-respondent no.1 and have thus, violated the order of injunction. A prayer was made in the said application that the petitioner be punished and their land be attached and sold for violating the orders passed by the trial Court. It would be relevant to note that the said ABCD which is claimed to be an encroached land as per the case of the respondent is actually a different land from the land regarding which the injunction has been passed in favour of the petitioner. The said aspect could not be disputed by learned counsel for the petitioner as the site plan attached with the judgment and decree dated 29.03.2017 has not been annexed along with the present revision petition.

6. A reply dated 07.10.2017 was filed by the petitioner to the said application and in paragraph 4 of the said application it was stated that the petitioner was obeying the decree passed by the Court whereas it is the respondent no.1 who was not obeying the decree dated 29.03.2017.

7. The Additional Civil Judge (Sr.Div.), Garhshankar, District Hoshiarpur vide order dated 07.12.2021 after considering the evidence on