KISHAN CHAND Vs. AMRU AND OTHERS

JUDGEMENT

(1.) The learned First Appellate Court in its verdict recorded upon Civil Appeal No. 41 of 2007 partly decreed the suit of the plaintiff, by its pronouncing a direction upon the contesting litigants, for theirs maintaining status quo qua the nature of the undivided suit property, till its partition takes place by metes and bounds. Subsequent, thereto, the decree holder instituted, a petition cast under the provisions of Order 21 Rule 32 CPC, before the learned Executing Court, averring therein that the pronouncement made by the learned First Appellate Court standing infringed, by the JDs, comprised in the JDs concerned raising illegal construction, upon the undivided suit property upon portion(s) a'b'c'd' reflected in the site plan besides theirs begetting infringement thereof, by theirs excavating a pit/tank thereon. The decree holder for proving all the averments aforesaid constituted in the execution petition, during his examination in chief tendered into evidence his affidavit wherein recitals occur holding consonance besides hold tandem with the aforesaid averments cast in the execution petition. However, during the course of his being held to cross-examination by the learned counsel for the JDs, he admitted the suggestion put to him that neither before the pronouncement of the verdict recorded by the learned First Appellate Court nor subsequent thereto, the JDs raising any construction upon any portion of the undivided suit property. The effect of the aforesaid acquiescence of the JDs, in respect of no purported violation being made by the JDs vis-a-vis the verdict recorded by the learned First Appellate Court, galvanizes an inference that the averments cast in the petition besides the testification of the decree holder in tandem therewith embodied in his examination in chief, not holding any tinge of creditworthiness. The learned counsel for the decree holder has contended that excavation(s) of a pit upon undivided suit property, excavation whereof purportedly occurring subsequent to the verdict, rendered by the learned First Appellate Court also hence begetting infringement of the mandate of the learned First Appellate Court, especially when the counsel for the JDs while holding the decree holder to cross-examination, has put a suggestion to him couched in a dis-affirmative phraseology that the JDs never excavated any pit upon the undivided suit property, suggestion whereof evinced from him a negative response, wherefrom he contends that it is reflective of an acquiescence of the JDs, of pit(s) standing excavated upon a portion of the undivided suit property also excavation thereof occurring subsequent to the verdict rendered by the First Appellate Court. However, the aforesaid signification purveyed to the aforesaid suggestion put to the Decree Holder by the learned counsel for the JDs while holding him to cross-examination, is wholly fallacious nor it holds any signification that the JDs in any manner hence conceded to the factum of theirs excavating any pit upon any portion of the undivided suit property nor also any excavation thereof occurring subsequent to the verdict recorded by the learned First Appellate Court. The reason for forming the aforesaid inference is gained by the factum of immediately subsequent thereto, the decree holder not making any communication that any excavation of any pit upon any portion of the undivided property, occurring prior to or subsequent to the verdict recorded by the learned First Appellate Court, rather with the decree holder immediately subsequent thereto, making an admission that the JDs neither prior to nor subsequent to the verdict recorded by the learned First Appellate Court, subjecting any portion of the suit property to any construction, thereupon a mere stray aforesaid suggestion put to the decree holder by the counsel for the JDs while holding them to cross-examination, cannot stir any conclusion(s) that excavation thereof occurred prior to or subsequent to the verdict of the learned First Appellate Court nor thereupon any infringement thereof hence arising. Consequently, I find no merit in the petition which is accordingly dismissed. Impugned order is maintained and affirmed.