- (1.) Plaintiffs-petitioners are decree-holders in a suit for permanent injunction. In order to execute the decree, they had earlier filed an application in the execution proceedings. The executing court had ordered demolition of certain encroachments by the defendantsrespondents No.2 to 5 in the Phirni. Aggrieved by the said order of the executing court, respondents no.2 to 5 approached High court in a revision petition. Vide order dated 25.3.2009 the High Court, on consensual basis, disposed of the petition with the direction to the trial court to appoint Shri Malkit Singh, Tehsildar, Anandpur Sahib as Local Commissioner to carry out the demarcation of the land which is subject matter of the dispute. Learned counsel for the petitioners submits that the subject matter of the measurement was land comprised in Khasra No.14/1, 7/2, 26, 7/1 and 6/1 which is owned by petitioners and the land of circular road (Phirni) comprised in Khasra No.236 which is managed and controlled by Gram Panchayat-respondent No.1 as well as the land comprised in Khasra No.491,492, 261, 262, 264, 400/1, 400/2, and 498 of respondents No.2 to 5. Pursuant to the orders of the High Court, said Malkiat Singh visited the spot and prepared a report that inhabitants of village had encroached upon the circular road. The said encroachments have been shown in the site plan prepared by the Local Commissioner on proper demarcation and inspection of the spot but it has been reported by the Local Commissioner that the inhabitants of the village had requested that more or less area of houses of the owners that comes in the encroached circular road can be ignored as there was sufficient passage left for ingress and egress to the village. On the basis of the report, the executing court has dismissed the application under Order 21, Rule 32 CPC filed by the decree-holders/petitioners. The main grievance of the petitioners is that objections had been raised by them against the report of Local Commissioner to the effect that report has not been prepared in accordance with Volume-I, Chapter-I and Part-I of the High Court Rules & Orders, which provide necessary guidelines to the Local Commissioners in accordance with the Financial Commissioner instructions in cases of spot inspections. Learned counsel for the petitioners has urged that the major encroachments made by the other villagers as well as the defendants No.2 to 5 have not been highlighted by the Local Commissioner. As a result thereof, the application under Order 21, Rule 32 CPC filed by the petitioners for removal of the encroachments and attachment of respondents property stands dismissed.
(2.) I have, with the assistance of learned counsel for the petitioners, carefully gone through the instructions in the High Court Rules and Orders, the detailed report of the Local Commissioner and the objections which have been filed by the petitioners. After hearing the learned counsel for the petitioner I have confronted the learned counsel with the site plan and required him to point out the portions with red coloured pencil indicating the encroachments ignored by the Local Commissioner. I have also carefully gone through the decree which has been passed in favour of the plaintiffs-petitioners. The contents of the decree are reproduced as under:- "This suit coming on this day for final disposal before me (Sh. Baldev Singh PCS, Sub Judge IInd Class, Anandpur Sahib) in the presence of Ch.Bakhtawar Singh Advocate counsel for the plaintiff and Ch. Ram Dass Advocate counsel for the defendant. It is ordered that the suit of the plaintiff succeeds and the same is decreed. The plaintiff is owner in possession of the suit land comprised in khewat/khatoni No.34/67 Rect. No.7 Khasra No.6/1, 11/1, 25/2 and Khewat/Khatauni No.270/380 Rect. No.7 Khasra No.7/1, 7/2, Khewat/Khatauni No.400/546 Rect. No.7 Khasra No.26 situated in the area of village Gambhirpur hadbast No.294, and the defendant is restrained from making any sort of encroachment on this land. Parties are left to bear their own costs."
(3.) A perusal of the decree indicates that the suit of the plaintiff-petitioner was decreed holding that he is owner in possession of the property mentioned above and the "defendant" was restrained from making any sort of encroachment on this land. The claim of the plaintiffpetitioners now is that encroachments having been made in contravention to the decree, he is entitled to invoke the provisions of Order 21, Rule 32 CPC. I have carefully gone through the decree and the claim of the decree-holder/plaintiff-petitioners in application under Order 21, Rule 32 CPC.;