GURDEV SINGH v. NARAIN SINGH

Citation: [2007] 11 S.C.R. 1093

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

GURDEV SINGH v. NARAIN SINGH.pdf

Judgment text

-+ GURDEV SINGH V. ~ NARAIN SINGH NOVEMBER 12, 2007 1 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Execution ofdecree-Jurisdiction ofexecuting court-Decree of permanent injunction restraining defendantfrom planting tree on suit land-Applicationfor executionpraying/or removal oftreesfrom suit land-Allowed by executing court observing that clear and plain meaning ofdecree was that there should be no tree on the specified site-HELD: Executing court cannotgo behindthe decree-As decree did not clothe decree-holder to prayfor execution ofdecree by way of removal oftrees, same could not have been directed by executing court in the name ofconstruingthe spirit ofdecree under execution-Matter remitted to executing court to determine as to whether tree in question was in existence prior to passing ofthe decree or not. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5237 of EI 2007. From the final Judgment and Order dated 23. 2. 2006 ofthe High Court ofPunjab and Haryana at Chandigarh in C. R. No.

4526/2004. Sarup Singh, Yash Pal Dhingra and Kuldip Singh for the Appellant. >- G. S. Punia, Davender Mohan Verma and Minakshi Vij for the Respondent. The following Order ofthe Court was delivered by ORDER -{ Leave granted. • Respondent herein filed a suit for permanent injunction against the ' t _ appellant. The suit was marked as Civil Suit No. 226 of 1987. A decree for permanent injunction was passed by the le'arned trial Judge on 19. 1. 1989, the operative portion whereofreads as under: "'I)lls suit comes today before me (Balbir Singh PCS, Addi. Senior Sub Judge Jagraon) f~r final disposal, in the presence of the counsel for the parties, it is ordered that:- (illegible) the suit of the plaintiff is decreed against the defendant for a permanent injunction restraining the defendant from planting tree on the Khasra No. 17/2 on the one side and Khasra No.

218/1 and 17/1 on the other side situate in the area ofvillage Abbupura Tehsil, Jagraon, District Ludhiana peculiar circumstances ofthe case, the parties are left to their own costs. " The decree holder filed an application for execution ofthe decree D praying, inter alia, for removal ofthe tree from the lands in question. A Commissioner was appointed. He submitted a report stating as under: (i) I compared the site plan with the situation ofthe disputed . property where tree ofBohar exists. - (ri) I measured the distance ofBohar tree from the common butt ofKhasraNos. 17/2 and 218/1 with the help ofa measurement tape. The centre point ofButt upto the centre point ofradius ofBohar tree is 11 feet i. e. 2 karams. (Iii) The branches ofBohar tree comes across the common Butt _. I. ,_ into Khasra No. 218/1 approximately 6/7 feets. t:: (iv) I prepared a rough site plan at the spot, which is also attached ~ ' herewith.

According to my observation the halfportion ofthe Bohar tree falls within two karams from the common Butt of '-. - I properties ofthe parties. " ~ \. - The learned Commissioner in his report did not state that the Bohar tree was planted after passing ofthe decree. ~ The executing Court relying on or the basis ofthe said report as GURDEV SINGH v. NARAIN SINGH 1095 also some decisions ofthis Court while holding that the executing Court has the requisite jurisdiction to construe a decree, opined as under: " Now applying ratio of the above said cases this Court has to see what was spirit ofthe decree which was under execution and clear that the plain meaning ofthe decree is that there should no tree within two karams on either side ofthe common boundary B' ofthe parties and ifit is there, the executing court can very well order its removal in order to give effect to the spirit ofthe decree.

In the present case, it has been reported by the Local Commissioner that the tree is within 2 karams. Moreover, J. D. does not plead any claim over that tree. Rather he pleads it to be a naturally grown tree. So, in these circumstances direction is given to the J. D. to remove the trees which is standing within 2 karams ofthe common butt within a period ofone month from today. " By reason ofthe impugned judgment the High Court has affirmed the said order. Mr. Swamp Singh, learned senior counsel appearing on behalf of the appellant would submit that the executing Court as also the High Colllt committed a manifest error in interpreting the decree. We agree with the said contention. A bare perusal ofthe decree in question would clearly demonstrate that the appellant herein was restrained by a permanent injunction from planting any tree on khasra Nos. 17/2 on the one side and khasra No. 218/1and1711 on the other side.

The decree did not speak of removal of any tree which had already been planted. The executing Court, as noticed hereinbefore, while interpreting the said decree proceeded completely on a wrong premise to hold that there should not be any tree within two karams on either side ofthe common boundary of the parties. Such an interpretation evidently is not in consonance with the tenor ofthe decree. Ajurisdictional error, thus, has been committed by the High Court. It is well stated that executing Court cannot go behind the decree. As the decree did not clothe the decree holder to pray for execution of \ ~· \ the decree by way ofremoval ofthe trees, the same could not have been directed by the learned executing Court in the nameofconstruing the spirit ofthe decree under execution. We, therefore, set aside the impugnedjudgment and remit the matter to the executing Court for determination ofthe question as to whether the Bohar tree in.

question was in existertce prior to passing ofthe decree or not. The executing Court thereafter may proceed with the matter in accordance with law. The appeal is allowed. No costs. RP. Appeal allowed. :;-