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Supreme Court of India

GURDEV SINGH versus NARAIN SINGH

Decided
12 November 2007
Judges listed
S.B. SINHA, H.S. BEDI (as the open data lists them; this may not name the whole bench)
Disposal
Appeal(s) allowed

Citations

Official
[2007] 11 S.C.R. 1093 · 2007 INSC 1141
Also cited as
  • (2007) 14 SCC 173 (5 citing judgments)
  • AIR 2008 SC 630 (2 citing judgments)

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Cited by

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The Court's text

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Leave granted . Respondent herein filed a suit for permanent injunction against the appellant. The suit was marked as Civil Suit No. for permanent injunction was passed by the 19 .1.1989, the operative portion whereof reads

pp. 1093–1094, margin G

"'I)lls suit comes today before me (Balbir Senior Sub Judge Jagraon) f~r final disposal, the counsel for the parties, it is ordered the suit of the plaintiff is decreed against permanent injunction restraining the defendant on the Khasra No. 17/2 on the one side and 17 /1 on the other side situate in the Tehsil, Jagraon, District Ludhiana peculiar

p. 1094, margin A

case, the parties are left to their own costs."

p. 1094, margin C

The decree holder filed an application for praying, inter alia, for removal of the tree from Commissioner was appointed. He submitted a (i) I compared the site plan with the

p. 1094, margin C

. property where tree of Bohar exists. (ri) I measured the distance of Bohar tree of Khasra Nos. 17 /2 and 218/1 with tape. The centre point of Butt upto

p. 1094, margin D

ofBohar tree is 11 feet i.e. 2 karams. (Iii) The branches of Bohar tree comes

p. 1094, margin E

into Khasra No. 218/1 approximately (iv) I prepared a rough site plan at the spot, herewith. According to my observation Bohar tree falls within two karams from

p. 1094, margin F

properties of the parties."

p. 1094, margin G

The learned Commissioner in his report did tree was planted after passing of the decree.

p. 1094, margin G

The executing Court relying on or the basis also some decisions of this Court while holding that the executing Court A has the requisite jurisdiction to construe a decree, opined as under:

pp. 1094–1095, margin G

" Now applying ratio of the above said cases this Court has to see what was spirit of the decree which was under execution and clear that the plain meaning of the decree is that there should no tree within two karams on either side of the common boundary B' of the parties and if it is there, the executing court can very well order its removal in order to give effect to the spirit of the decree. In the present case, it has been reported by the Local Commissioner that the tree is within 2 karams. Moreover, J.D. C 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 of the common butt within a period of one month from today."

p. 1095

By reason of the impugned judgment the High Court has affirmed D the said order.

p. 1095

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. E

p. 1095

We agree with the said contention. A bare perusal of the 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 F 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 of the common boundary of the parties. Such an interpretation evidently is not in G consonance with the tenor of the decree. A jurisdictional error, thus, has been committed by the High Court.

p. 1095

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 A the decree by way of removal of the trees, the same could not have been directed by the learned executing Court in the name of construing the spirit of the decree under execution.

pp. 1095–1096

We, therefore, set aside the impugned judgment and remit the matter to the executing Court for determination of the question as to whether the Bohar tree in .question was in existertce prior to passing of the decree or not. The executing Court thereafter may proceed with the matter in accordance with law.

p. 1096

The appeal is allowed. No costs. RP. Appeal allowed.

p. 1096, margin B