Rajiv Sharma, Judge.
This Revision Petition has been directed against the order dated 30.5.2009 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 80-N/XIII-2007 and order dated 27.6.2007 passed by learned Civil Judge (Senior Division), Nurpur in CMA No. 63/2000.
2. Material facts necessary for the adjudication of this petition are that the petitioner had filed civil suit, titled Dharam Pal v. Tej Ram bearing Civil Suit No. 87/1982. The suit was decreed on 15.11.1984 Thereafter, the respondent preferred an appeal before the learned first appellate court. In Civil Appeal No. 221/84, the matter was compromised and decree dated 22.10.1986 was passed. Thereafter, the petitioner filed an application under order 21 rule 32 of the Code of Civil Procedure on 1.4.2000 According to petitioner, respondent threatened to raise construction of residential house on the already constructed shop and also stacked construction material and threatened him with dire consequences. Respondent has filed reply to the same. The Senior Sub Judge (Senior Division), Nurpur, District Kangra dismissed the same on 27.6.2007 Petitioner preferred an appeal before the learned District Judge, which was dismissed by him on 30.5.2009 by holding that the appeal filed by the petitioner against the order passed in application under order 21 rule 32 was not maintainable either under section 96 or under order 43 of the Code of Civil Procedure before the District Judge. This revision petition has been preferred against both the orders dated 27.6.2007 and 30.5.2009
3. Mr. Naresh Kaul has strenuously argued that both the courts below have acted contrary to settled principles of law. According to him, the courts below have not appreciated the oral as well as documentary evidence.
4. Mr. K.D Batish has supported the orders passed by both the courts below.
5. I have heard the learned counsel for the parties and have perused the pleadings as well as the orders passed by both the courts below carefully.
6. According to Mr. K.D Batish, the appeal was not maintainable against the order dated 27.6.2007 either under section 96 or under order 43 of the Code of Civil Procedure. This position of law has not been disputed by Mr. Naresh Kaul. However, Mr. Naresh Kaul submitted that his client has substantiated by leading tangible evidence that respondent had started raising construction on the already constructed shop. According to AW-1, respondent has constructed shop over the suit land in the year 1986-87. He has also deposed that the respondent has constructed double storeyed shop in an illegal manner and intentionally and voluntarily violated the judgment and decree. Respondent has appeared as RW-1. He has testified that he purchased his own land in the year 1979 and has raised construction of double storyed house. He has further stated that he has not interfered with the land owned by the petitioner. He has also deposed that the petitioner had earlier filed 2-3 applications under order 21 rule 32 of the Code of Civil Procedure against him, which stood rejected.
7. It is evident from the order of the learned Senior Sub Judge (Senior Division) that the petitioner had earlier moved two applications for execution of the order on the same and similar facts. These applications were dismissed on 23.1.1990 and 2.4.2002 vide Annexures R-2 and R-1, respectively. In earlier proceedings also, petitioner had failed to establish that there was violation of judgment and decree dated 15.11.1984 It was necessary for the petitioner to prove by leading cogent and convincing evidence that respondent has disobeyed the judgment and decree by raising the construction.
8. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs.
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