DAMODAR MOHANTY Vs. UPENDRA BARIK

JUDGEMENT

(1.) IN this writ petition, the petitioners have challenged the order dated 10.4.2007 passed by the learned Civil Judge (Senior Division), Bhadrak in Execution Case No. 39 of 2003 arising out of Title Suit No. 87 of 2000 -I allowing the application filed by the opposite party/decree -holder under Order 21 Rule 32 of the Civil Procedure Code.

(2.) THE facts, as reflected in the writ petition, are as follows: The petitioners are the judgment -debtors. Opposite party as plaintiff filed the aforesaid suit for permanent injunction in respect of Ka Schedule land which is described as Khata No. 818, Plot No. 7604 an area of Ac.0.04 decimals of Mouza -Bideipur,P.S. -Naikanidhi Diha, Dist. -Bhadrak. He had also given the sketch map of the said disputed plot in Schedule Kha. In the suit, the defendants took a stand that the suit land connects the "Sarba Sadharana Rasta". Kissam of the land remains in tact as "Danda". They stated that Plot Nos. 7603, 7605 and 7606 are homestead lands and the residential house of the defendants and their uncles are situated adjacent to the suit land. The suit land is the only pathway for their movements as well as their uncles. Without use of the suit land, the ingress and outgress to their house is unimaginable. They are using the suit land as their pathway for long time peacefully and continuously without any interruption. Plaintiff admitted that the suit land is being used as Rasta and defendants were stacking building materials in order to make pucca construction over the suit land for which the suit was filed. On the pleadings and the evidence adduced by the parties, the trial Court on 30.11.2002 decreed the suit in part on contest with costs restraining the defendants permanently from digging earth from the suit land in order to make pucca construction.

(3.) LEARNED counsel for the petitioners submitted that during pendency of the execution case, the executing Court deputed a Civil Court commissioner to measure the disputed plot no. 7604. In the execution case, one of the judgment -debtors was examined as OPW No.1. In his cross -examination he categorically admitted that the suit land appertaining to Plot No. 7604 to the extent of Ac.0.04 is Rasta. Their ancestral house is situated appertaining to Plot No. 7605. He also categorically denied that their house does not stand over the suit land. OPW No.2 deposed that road in question exists over the suit land as it was existing earlier and the judgment -debtors did not construct any new house and the road is free from all sort of encroachment. Further he failed to describe the length and width of the disputed land and the direction in which the suit house of the judgment -debtors is situated. He was also not able to say which is the disputed land. While considering the objection of the judgment -debtors regarding the report filed by the Civil Court commissioner, the Court below rejected the report of the commissioner regarding measurement of the disputed land. Relying on the statement of the judgment -debtors and decree -holder, the Court below came to the conclusion that the judgment -debtors have encroached a portion of the suit land and the constructed house required demolition and eviction at their own cots as they did not obey the order of permanent injunction issued against them in the judgment and decree passed in the suit. He submitted that without measuring the suit land the direction given by the executing Court to demolish the construction made over the suit land is illegal and the said order is liable to be set aside. He further submitted that as the Civil Court commissioner did not measure a portion of the defendants house situated over the suit land, they will face inconvenience if the construction over the suit land would be demolished.