IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CR No. 182 of 2008.

Date of decision: Augu.st 01, 2018.

Shri Kashmir Chand. …...Petitioner.

Versus Shri Om Parkash & ors. …..Respondents.

Coram The Hon’ble Mr. Juustice Dharam Chand Chaudhary, Judge.

Whether approved for reporting?, [Whether the reporters of the local papers] No.

For the petitioner : Mr. Ajay Kumar, Senior Advocate with Mr. Dheeraj K. Vashisht, Advocate.

For the respondents : Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, g Advocate for respondents No. 2(a)

to 2(d) and 3 to 5.

Nemo for respondent No. 1.

Dharam Chand Chaudhary, J. (Oral)

In this petition order dated 9.9.2008 passed by learned Civil Judge (Senior Division), Palampur, District Kangra, H.P. in an application under Order 21 Rule 32 CPC registered as CMA No. 201/2004 is under challenge.

2. The petitioner herein is the plaintiff-DH. The suit filed by him against the respondents/defendants-JDs for the decree of may be allowed to see the Judgment? yes.

permanent prohibitory injunction restraining them from causing any interference in the suit land entered in Khata No. 209, Khatauni No. 419, Khasra Nos. 1158, 1159H and 1812/1160 was decreed by the trial Court vide judgment and decree dated

29.11.2000 Ext. A1.

3. The complaint is that the defendants-JDs have raised construction of a shop on 13.1.2004 over a portion of the suit land bearing Khasra No. 1812/1160 and thereby disobeyed the decree sought to be executed.

4. The defendants-JDs when put to the notice had resisted and contested the petition on the grounds of maintainability and no enforceable cause of action exists in favour of the plaintiff-DH. On merits, while admitting the decree gsought to be executed they have given the right to use a portion iof the suit land bearing Khasra No. 1812/1160 as path to have an access to their property. It is denied that they raised construction over thereon and thereby disobeyed the decree.

5. On such pleadings of the parties, the following issues were framed:

1. Whether the respondents have willfully disobeyed the judgment and decree dated 29.11.2000 passed by this Court, as alleged? OPA

2. Whether the application is not maintainable in the present form? OPD

3. Whether the applicant has no cause of action to file the present application? OPR

4. Relief.

6. The plaintiff-DH has stepped into the witness as PW1 and tendered the copy of the decree Ext.A1 in his evidence. On the other hand one of the defendants -JDs Om Parkash has appeared as RW1 and produced in evidence the copy of the demarcation report Ext.RW1/A.

7. Learned trial Coturt on perusal of the facts and also the evidence brought on record has concluded that the plaintiff- DH has failed to prove the violation of the decree by the defendants-JDs and as such, the application being not maintainable was dismissed vide order under challenge in this petit ion.

8. The impugned order has been challenged on the grounds, inter alia, that the same is based upon presumption and assumption as in view of the given facts and circumstances and also the evidence available on record no such order could have been passed.

9. On hearing Mr. Ajay Kumar, learned Senior Advocate assisted by Mr. Dheeraj K. Vashisht, Advocate and Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Janesh Gupta, Advocate, representing the parties on both sides and going through the record, it would not be improper to conclude that the impugned order does not suffer with any illegality or irregularity and rather has been passed on proper appreciation of the given facts and circumstances and also the evidence produced by the parties on both sides. Admittedly, the defendants-JDs have constructed a shop. However, as per thHeir version and the demarcation report Ext.RW1/A produced in evidence such construction has not been raised over a portion of the suit land bearing Khasra No. 1812/1160 and rather over the land bearing Khasra No. 1811/1160. Admittedly, the land over which such construction raised is adjo