Khattu Ram v. Charan Dass & Anr.

The parties are directed to appear before the executing court on 7.11.2009. The revision petition stands disposed of in the above terms.” The Executing Court thereafter went into the matter and a Local Commissioner was appointed, who reported that in the houses constructed in the disputed land, there are two rooms wherein iron doors are installed and there is roof of girders and Ballas and some household articles are lying therein and in the adjoining verandah there are three doorways, but no doors are installed therein and buffaloes were standing therein. He further reported that the said residence and cattle were verified by Sarain C.R.No.7718 of 2009(O&M) -4- .... Bhai @ Narain Dass at the time of spot inspection. Another report was obtained from the Patwari which was duly signed by the petitioner and according to which, he has a residential house where he is residing with his sons in the abadi deh of the village.

The Patwari further reported that there is old constructed house and boundary wall of the petitioner in khasra no. 18//19 and that at present, there is cattle shed and residence of Sarain Ram s/o Khattu Ram in khasra no. 18//19 and that in this portion,m there are two residential rooms wherein doors are installed and some household articles are kept and there is one verandah for cattle. He also reported that at the spot, it appeared that the said construction was occupied for residence recently. Respondent no.1, who is decree-holder, is entitled to get the decree executed and it is a settled principle of law that no court can go behind the terms of the decree. The report of the Patwari (Annexure P16) clearly reveals that occupation of the property in question for residential purpose, is recent from which an inference can be derived that the petitioner, in order to defeat the rights of respondent no.1, has made a make- shift residence in the disputed area. This impression is strengthened because the said report further says that the petitioner and his sons are having a residential house in the abadi deh of the village. The observations of this Court in orders dated 26.2.2008 and

27.10.2009 stem primarily from the concern that a residential house may not be disturbed, but if the report of the Patwari is to be seen, then this impression that a residential house is existing in the disputed area, stands C.R.No.7718 of 2009(O&M) -5- .... sufficiently erased. At the time of issuance of notice of motion in the instant petition, this Court once again made an edeavour to protect whatever construction existed and gave an option to respondent no.1 on the statement made by the counsel for the petitioner to choose any other portion from the remaining area in lieu of the constructed area, which offer was not acceptable to him. Thus, the Court is left with no other option, but to proceed with the case by testing the legality of the impugned orders. Having gone through the impugned orders, I find that there is no legal infirmity therein. The Executing Court was right in enquiring into the matter in totality in order to ensure the execution of the decree which it has correctly done. Therefore, the petitioner cannot make a grouse of it as respondent no.1 is entitled to get the execution of the decree in the way it stands. However, there is no dispute that some construction has been raised by the petitioner and, therefore, in the eventuality of respondent no.1 getting the portion along with constructed area, it is just and equitable that he compensates the petitioner for the construction which he has raised. The revision petition is, therefore, disposed of by observing that respondent no.1 is entitled to get the disputed area in execution as has been determined vide the impugned orders, but, at the same time, the Executing Court shall determine the quantum of the amount to be paid in lieu of the construction which shall be passed on to him by way of the execution of the decree. Learned counsel for the petitioner has expressed apprehension C.R.No.7718 of 2009(O&M) -6- .... that respondent no.1 is likely to get more area than 4 kanals and 1 marlas in execution of the decree. I have perused the judgment dated 20.11.2006 passed by the District Judge, Kaithal wherein he has observed that owner-Surinder Singh, i.e., respondent no.2 could transfer only 16 kanals 9 marlas out of khewat no.2,whereas he had alienated 20 kanals and 10 marlas vide sale deed dated

13.6.1998 in favour of the petitioner and thus, it was amply established that he could not have transferred the area of 4 kanals and 1marl which was the subject-matter of agreement to sell in favour of respondent no.1 and regarding which the suit for specific performance was filed. It is, thus, made clear that respondent no.1 shall be entitled to retrieve the possession of 4 kanals and 1 marla of land from the possession of the petitioner. The Executing Court shall undertake the exercise of determining the quantum of amount to be paid in lieu of the construction existing on the disputed area within a period of one month of the receipt of a copy of this order. Thereafter, the amount so determined shall be paid to the petitioner and simultaneously, he will surrender the possession of the disputed area for onward delivery of the same to respondent no.1. The parties shall appear before the Executing Court on the date fixed in the execution petition for further proceedings. It shall be the duty of the counsel for the parties to communicate this order to their respective parties. April 21,2010 “SCM” ( Mahesh Grover ) Judge