- (1.) C.M. No. 24801 of 2014 Application for placing on record Annexures P-9 and P-10, site plan and report of draftsman is allowed, subject to all just exceptions. The said Annexures are taken on record. C.R. No. 6314 of 2014 The present revision petition has been filed under Article 227 of the Constitution of India challenging order dated 24.12.2013 (Annexure P-8) passed by the Court of the Additional Civil Judge (Sr. Divn.), Faridkot being an Executing Court which has ordered the dismissal of the objection petition filed by the petitioner/judgment debtor. Further prayer has been made for accepting the objection petition on the ground that there is no such property existing at the spot as claimed under the counter claim. The Executing Court, while dismissing the objections vide the impugned order, held that there was no confusion or controversy and the whole issue had been decided in the civil suit as the decree holder has sought the possession of the area of the shop as the same was also under the tin shed and area under possession of the judgment debtor was measuring 7' x 3-1/4'.
(2.) A perusal of the paper book would go on to show that the petitioner initially filed a suit for permanent injunction against the respondent from demolishing the wall shown as point A to B in red colour in the site plan attached with suit, with an ulterior motive to demolish the tin shed constructed by the plaintiff more than 5 years ago ever since he installed the tea shop. It had been pleaded in the suit that he had taken the shop from one Kundan Lal as a tenant and the said Kundan Lal has expired and he was in continuous possession of the shop in dispute. The Municipal Authorities were alleged to be the only persons who had an authority to question the existence of the shed. In the written statement and counter claim, the respondent took the plea that the plaintiff is a licensee of the area measuring 7' x 3-1/2' under the tin shed of the shop. It is alleged that Kundan Lal has sold the shop to the answering respondents and they had terminated the licence of the plaintiff by serving him notice to vacate and hand over the possession of the space. The counter claim was thus for the possession of 7' x 3-1/2' under the tin shed. Initially, the suit of the petitioner-plaintiff was decreed on 10.04.2008 and the counter claim was dismissed by the Civil Judge (Jr. Divn.), Faridkot. However, in appeal, the District Judge, Faridkot allowed the appeal filed by respondent-Vijay Kumar on 06.10.2009 by holding that the plaintiff had claimed ownership by way of adverse possession and even tenancy had been pleaded. The wall from point A to B was not owned by him and if he constructed a tin shed adjoining the wall, he could not restrain the owner from demolishing the wall, which was owned by the defendant. There were some receipts had been marked which had been placed on record regarding the payment of teh-bazar; but the copy of the sale deed had been placed on record showing the ownership of the deceased and, therefore, the plaintiff was a licensee in the property in dispute. Accordingly, the suit for permanent injunction was dismissed by allowing the appeal and the counter claim filed by the defendant was decreed and the plaintiff was directed to hand over vacant possession of the premises in dispute within 3 months after affixation of Court fees. The relevant part of the decree reads thus:- "COUNTER CLAIM:- Suit for issuing mandatory injunction against the plaintiff for handing over the possession of 7' x 3-1/2 space under the time shed bounded as :- North:Defendants South:New Market (Street) East:Defendants West:Chaina Basar, Jaitu situated in the Municipal limits of Jaitu Tehsil Jaitu District Faridkot. Memorandum of Appeal Sultan Singh Plaintiff(s) Vijay Kumar etc. Defendants(s)
(3.) The appellant (s) named above appeal to the court of District Judge, Faridkot against the judgment and decree of the court of Shri. Amrinder Pal Singh, Civil Judge (Junior Division), Faridkot, in the above suit dated 10.4.2008 the reasons given in the ground of the appeal.;