Order on Board

22.09.2022

1. Heard on admission.

2. The petitioners are legal heirs of judgment debtor Ranvir Singh Chane whereas respondent is the plaintiff/decree holder.

3. These two writ petitions are arising out of Execution Proceeding No. 01/17 pending before the VIth Civil Judge, Class-II, Durg parties being “Smt. Indira Deshlahra vs. Smt. Daljeet Kaur & Others” wherein and whereby learned Executring Court has decided some applications against the petitioners/judgment debtors and thus, these petitions have been filed.

4. A civil suit was filed by the plaintiff for declaration of title, permanent injunction and vacant possession of plot No. 11 admeasuring 280 sq.ft. Some part of the property i.e. 280 sq.ft. land of the said plot was encroached by the original defendant. The case of the defendants was that they purchased the suit land from Vishal Prasad on 25.03.1973 and came into possession of the suit land. The plaintiff has mentioned the boundaries of the plot as mentioned in judgment passed in Civil Suit No. 39A/2010 and Civil Suit No. 41A/2013 and in the plaint also. From perusal of the judgment of the trial Court, lower appellate Court and this Court in S.A. No. 507/2016, it is apparent that demarcation was conducted vide Ex.-P/6 in which it was found that the defendants have encroached upon 280 sq.ft. land belonging to the plaintiff.

5. The learned trial Court framed specific issue regarding identity of the land vide issue no. 02 which is as under:-

“D;k mijksDr of.kZr oknxzLr Hkwfe ftls okn Hkwfe ds lkFk layXu uD'ks v] c] l] n v{kjks es fn[kk;k gS ml ij izfroknh voS/k :i ls fuekZ.k dk;Z izkjaHk dj jgk gS\

This issue has been decided in favour of the plaintiff and against the defendants.

6. In appeal, the learned VIth Additional District Judge, Durg, District Durg upheld the judgment and decree passed by the learned trial Court and Second Appeal preferred by the defendants has been dismissed vide judgment dated 18.07.2019 wherein issue of identity of land was raised again and same was negatived.

7. In para-24 of the judgment passed by the trial Court in Civil Suit No.

39A/2010, it is held that Commissioner was appointed for demarcation on an application moved by the plaintiff under Order 26 Rule 9 of C.P.C. In demarcation report it was found that the defendants have raised construction over 280 sq.ft. of land. The report of the Commissioner was not challenged by the defendants, therefore, it attained finality.

8. The trial Court passed the decree to the effect that the plaintiff is owner of additional land area 20 x 60 = total 1200 sq.ft. situated at Malviya Nagar, Durg and the defendants were directed to handover the possession of 280 sq.ft. of land after removing the illegal construction over it within 15 days and further the decree of permanent injunction was also passed in favour of the plaintiff.

9. The decree holder/plaintiff filed Execution Case on 30.01.2017 before the learned Executing Court and same was registered as Execution Case No. 1/2017 in the Court of VIth Civil Judge, Class-II, Durg. During pendency of execution proceeding various I.As. i.e. interim applications have been filed. The learned Executing Court decided most of the applications. W.P.(227) No. 376/2020 has been filed on the ground that I.A. Nos. 2 to 10 have been decided by learned Executing Court whereas, I.A. No. 5 has not been decided and I.A. No. 11 was not fixed for hearing but same has been decided. The learned Executing Court ought to have registered separate MJC to decide the above interim applications, therefore, direction be issued to the learned Executing Court to separate I.As. No. 3 to 10 and I.A. No. 9 as separate MJC and to afford opportunity to the parties to adduce the evidence and file requisite documents. From the order-sheet of the Executing Court, it appears that I.A. No. 2, an application under Order 21 Rule 26 read with Section 151 of C.P.C. was moved by judgment debtors and same was rejected vide order dated 28.02.2020. I.A.