C.R NO. 4927 OF 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

C.R NO. 4927 OF 2011 (O&M)

DECIDED ON : 04.01.2012

Yad Ram and others

...Petitioners

versus

Mansha Ram and others

...Respondents

CORAM : HON'BLE MR. JUSTICE K. C. PURI

Present :

Mr. Diwan S. Adlakha, Advocate.

K. C. PURI, J. (ORAL)

Challenge in this revision petition under Article 227 of

the Constitution of India is to order/judgment and decree dated

28.04.2011 passed by learned Additional District Judge, Yamuna

Nagar at Jagadhari.

Briefly stated, on 26.04.1995 Garibu, plaintiff, father

and grandfather of the petitioners filed a suit for declaration that

he is in exclusive possession of land measuring 86 Kanal 3 Marlas

situated at village Duamanwala,Tehsil Jagadhari,District Yamuna

Nagar and the decree dated 05.10.1991 obtained by the

defendant-respondent No.2 is null and void and inoperative qua

the rights of plaintiff. Garibu also sought relief of permanent

C.R NO. 4927 OF 2011 (O&M)

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injunction restraining defendant No.2 from interfering in their

actual possession and also from changing the Khasra Girdawari

entries in his favour on the basis of impugned decree.

The suit was resisted by defendant No.2 by filing

written statement that plaintiff is not in exclusive cultivating

possession of the suit land. Rather the defendant and plaintiff are

in joint possession. The judgment and decree dated 05.10.1991

are valid and no fraud or misrepresentation has been played by

the plaintiff.

After adjudication, the suit of plaintiff was decreed on

02.04.2005 by learned Civil Judge(Senior Division), Yamuna

Nagar and the judgment and decree dated 05.10.1991 was

declared null and void. The plaintiff was held in exclusive

cultivating possession of the suit land as Gair Marusi Tenant and

defendant No.2 was restrained from interfering in the actual

cultivating possession of the plaintiff over the suit land. The

Decree Holder filed an execution application under Order 21 Rule

32 CPC for execution of the judgment and decree dated

02.04.2005 and also prayed for detaining the respondent in civil

imprisonment and attachment of his property.

The said application was resisted.

Learned Additional Civil Judge (Senior Division),

Yamuna Nagar at Jagadhari, vide order dated 08.05.2010

dismissed the objections filed by respondent No.1 in the

execution application and also issued Warrants of Possession

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regarding the land in dispute.

Respondent No.1, aggrieved from the said order dated

08.05.2010, preferred an appeal to the Additional District Judge,

Yamuna Nagar at Jagadhari. The learned Additional District

Judge, by invoking the provisions of Order 41 Rule 33 CPC, in

para no.11 of the impugned order, observed as under :-

“

It is pertinent to mention here that in the

civil suit titled “Garibu vs. Nathu Ram”, which

was decided on 02.04.2005, the learned Civil

Court has categorically observed that the

judgment and decree dated 05.10.1991 passed

in Civil Suit No. 718 of 12.9.1991 was the result

of fraud and misrepresentation of facts and the

same was not based upon family settlement and

has also further observed that plaintiff Garibu

was in exclusive cultivating possession of the

suit land which was allotted to him vide

allotment

letter

dated

21.6.1966

and

consequently since Garibu was found to be in

exclusive cultivating possession and thus the

relief of permanent injunction was granted in

favour of Garibu as the said Garibu was found to

be in cultivating possession as 'gair marusi'

tenant under the State Government. It is

pertinent to mention here that the Haryana State

is owner of the suit land and said fact has also

been recorded by the Commissioner, Ambala in

its judgment dated 28.10.2009 but the State

Government has not been im