GEEGRAJ Vs. PRAHLAD RAM

JUDGEMENT

(1.) Aggrieved by the order dated 02.08.2010, passed by the learned Civil Judge (Junior Division), Khetri, District Jhunjhunu, whereby the learned Judge has rejected the petitioner's application under Section 47 read with Section 151 CPC in an execution proceeding, the petitioner has approached this Court.

(2.) The brief facts of the case are that the non-petitioner, Prahlad Ram, had filed a suit for mandatory injunction against the petitioner wherein he had claimed that the petitioner had created obstacles in the use of the way, which extents to a width of 18 ft., by encroaching upon it. Along with the suit, he had filed a map. The petitioner, in his written statement, had categorically denied the claims made by the plaintiff-non-petitioner. In order to discover the reality at the site, the learned Judge had appointed a Commissioner, Mr. Vishvanath Agrawal. The Commissioner had submitted his report, which is marked as Exhibits-4 & 5. Subsequently, the plaintiff-non-petitioner examined himself and the Commissioner as witnesses. After hearing both the parties, vide judgment and decree dated 15.01.2004, the learned Judge decreed the suit in favour of the plaintiff-non-petitioner. Since the petitioner did not remove the encroachment, the plaintiff-non-petitioner filed an execution application before the learned Civil Judge. During the pendency of the execution petition, the petitioner filed an application under Section 47 read with Section 151 CPC. However, the same was dismissed by the impugned order. Hence, this petition before this Court.

(3.) Mr. S.K. Gutpa, the learned counsel for the petitioner, has vehemently contended that a vague decree has been passed as the nature of encroachment, the extent of encroachment has not been revealed in the decree. Therefore, the said decree cannot be executed. Secondly, the width of 18 ft. cannot be measured, as beyond a certain point there is only sand which tends to shift. Therefore, the reference point, from where the 18 ft. needs to be measured, is unknown. Thirdly, the learned trial court did not have the jurisdiction to pass the decree.