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2000 DIGILAW 512 (CAL)

PANKAJ KUMAR GHOSH v. CHUNILAL DAS

2000-09-28

GORACHAND DE

body2000
G. C. DE, J. ( 1 ) THIS hearing arose out of an application under Article 227 of the Constitution of India filed at the instance of Pankaj Kumar Ghosh, plaintiff-decree holder opposite parties against an order dated 7. 8. 95 passed by Shri P. N. Sinha, Additional District Judge of the fourth Court of Alipore in Civil Revision Case No. 157 of 1989. ( 2 ) SHRI Chunilal Das, opposite party No. 1 and petitioner in the Civil Revision Case No. 157 of 1898 appeared and opposed this application. ( 3 ) THE plaintiff-present petitioner on 11. 6. 59 filed title Suit No. 432 of 1959 before the fifth Court of Munsif (presently Civil Judge, Junior Divison) at Alipore (which was re-numbered as Title Suit No. 307 of 1962 on being transferred to the first Court of Munsif (presently Civil Judge, Junior Division) at Alipore praying for declaration of title and khas possession along with a negative declaration that the defendants including Shri Chunilal Das (present O. P. No. 1) have no right, title or interest in respect of a land having an area of 2 Cuttah 3 Chittak in Dag No. 1078 of Khatian No. 824 in Mouza Dhakuria No. 25, Gariahat Road (East) within P. S. Tollygunge, Dist. 24 Pgs. , now within Corporation of Calcutta fully detailed and described in the Schedule to the plaint (hereinafter called the 'suit land' for brevity), on the allegation that on 11. 8. 1936 his vendor Kiron Chakraborty took settlement of the suit land with specific boundaries and on 12. 5. 59, the plaintiff purchased the same from Kiron Chakraborty on the basis of a registered Kobala. ( 4 ) THE opposite party No. 1, Chunilal Das entered appearance in the said title suit and filed written statement but ultimately opted not to contest the suit. Accordingly, the suit was heard ex parte and was decreed whereby the plaintiff's title to the suit land was declared and the defendants were directed to deliver khas possession of the same to the plaintiff failing which liberty was given to recover the khas possession of the suit land by removing all structures standing on the suit land, if necessary, in execution of the decree through Court. The defendants were also permanently restrained from making any construction on the suit land and from disturbing the possession of the plaintiff thereof. The defendants were also permanently restrained from making any construction on the suit land and from disturbing the possession of the plaintiff thereof. ( 5 ) THE defendants, however, did not hand over possession in terms of the said ex parte decree for which the decree was put into execution and on 25. 8. 78. the possession of the suit land was given to the decree holder plaintiff. At the time of execution of the decree the bailiff of the Court, in terms of the direction of the Court, took the help of a Pleader Commissioner who demarcated the suit land on the basis of a report of pleader Commissioner that was submitted before the trial Court on 11. 7. 67 and was accepted by the Court on 25. 7. 1967. ( 6 ) THE defendant No. 1, Chunilal Das who is the opposite party No. 1 herein filed an application under section 47 of the Code of Civil Procedure praying for cancellation of the writ of possession and for dismissal of the execution case mainly on the ground that the plaintiff obtained an ex parte decree by exercising fraud on the Court and in collusion with the Court bailiff and the Advocate Commissioner. It was also alleged that the pleader Commissioner appointed in the main suit could not locate and identify the northern boundary of the suit land and possession was given to the decree holder in respect of a land which was different from the suit land. The said application was registered as Misc. Case No. 122 of 1978 and it was re-numbered as Misc. Case No. 28 of 1984 on its transfer to the first Court of Munsif at Alipore. ( 7 ) THE said Misc. Case No. 28 of 1984 was dismissed by an order dated 12. 3. 88 and the application under section 47 of the Code of Civil Procedure was rejected with the finding that the application was barred by res judicator and that the suit land was properly identified at the time of delivery of possession on the basis of the Pleader Commissioner's report. ( 8 ) AGAINST the said order the opposite party No. 1 Chunilal Das filed Misc. Appeal No. 140 of 1988 and after hearing both sides, the Misc. Appeal was dismissed by an order dated 10. 6. 89 of the Assistant District Judge, seventh Court at Alipore. ( 8 ) AGAINST the said order the opposite party No. 1 Chunilal Das filed Misc. Appeal No. 140 of 1988 and after hearing both sides, the Misc. Appeal was dismissed by an order dated 10. 6. 89 of the Assistant District Judge, seventh Court at Alipore. Against the said order passed in Misc. Case No. 28 of 1984, the opposite party No. 1 also filed a revisional application on 15. 7. 89 before the District Judge, Alipore along with an application under section 5 of the Limitations Act. The said application under section 5 of the Limitations Act was allowed and the revisional application was registered as C. R. No. 167 of 1989 and it was transferred to the fourth Court of Additional District Judge at Alipore and the learned Additional District Judge of the said Court by the order dated 7. 8. 95 allowed the revisional application and set aside the order dated 12. 3. 88 passed by the Munsif, first Court in Misc. Case No. 28 of 1984 that arose in Title Execution Case No. 15 of 1984. The matter was sent back on remand to the learned Executing Court for a fresh decision with the observation that there was no proper relayment of the suit land in Title Suit No. 307 of 1962. It was also indicated in the said order that a new investigation by a competent surveyor of Calcutta Municipal Corporation as well as by a competent pleader Commissioner engaged by the Court for tracing out the land of the present opposite party No. 1 was necessary. The Executing Court was also directed to give proper opportunity to the parties to adduce evidence in support of their respective cases and to establish the identity of their respective land. ( 9 ) MR. Sudhish Dasgupta, appearing on behalf of the present petitioner-decree holder, challenged the said order of remand by a revisional Court mainly on the grounds that the revisional Court below grossly exceeded its jurisdiction and decided the entire case on merits on pure question of fact like an appellate Court after taking into consideration irrelevant and extraneous facts, circumstances and materials. On the other hand, Mr. On the other hand, Mr. Haradhan Banerjee, appearing on behalf of the present opposite No. 1, made a forceful argument that this Court while considering an application under Article 227 of the Constitution of India is not competent to re-assess the evidence and to come into a contrary finding after setting aside the order of remand passed by a revisional Court under section 115a of the Civil Procedure Code. ( 10 ) FROM the submissions of the learned counsels of both sides, it appears that the following two points are required to be decided by this Court :- (I)whether a revisional Court while exercising power under section 115a of the Civil Procedure Code can go beyond the degree and set aside a Commissioner's report accepted and admitted in evidence by a trial Court and decree was passed thereon; (ii)whether a Court under Article 227 of the Constitution of India is competent to look into the merits of the case for the purpose of re-assessment of evidence and to question or set aside an order passed under section 115a of the Civil Procedure Code. ( 11 ) FOR the purpose of dealing with these two questions of law it is to be mentioned that it is a well-settled principle of law that an executing Court should not go beyond the degree. But Mr. Banerjee appearing on behalf of the present opposite party No. 1 rightly placed reliance on the principles adopted in 87 CWN 862 (Simea Chandra Mondal v. Ghisulal Mondal) that in execution of the decree more land has been deliver to the plaintiffs than what is due under the degree, comes within the purview of section 47 of the Code of Civil Procedure. Reliance was rightly placed by him on the apex Court decisions reported in AIR 1972 Supreme Court 1371 (Bhavan Vaja v. Solanki Hanuji), (1982) 2 Supreme Court cases 456 (Shafiquar Rehman Khan and Anr. v. Smt. Mohammed Jahan Begam and Ors.) and a decision of Madras High Court reported in AIR 1968 Madras 433 (Marudanavgam Pillai v. Venkataswami Naida and Ors.) to strengthen his argument that all such questions are to be decided in a proceeding under section 47 of the Code. Mr. v. Smt. Mohammed Jahan Begam and Ors.) and a decision of Madras High Court reported in AIR 1968 Madras 433 (Marudanavgam Pillai v. Venkataswami Naida and Ors.) to strengthen his argument that all such questions are to be decided in a proceeding under section 47 of the Code. Mr. Dasgupta, appearing on behalf of the present petitioner, did not dispute the principles adopted in these decisions, but he argued that the principles adopted in the case of Bhavan Vaja (supra) practically supports the contention of the petitioner. Mr. Dasgupta further pointed out that in the other decisions, cited by Mr. Banerjee, as there was no local investigation in the suits and identity of the suit property was not established for giving effect to the decree, local investigation became necessary at the execution stage. So as regards the first point raised, it is to be held that the executing Court has a duty to construe the decree and is competent in appropriate case to take into consideration the pleadings as well as the proceedings leading upto the decree. If the executing Court fails to discharge the duty, it would be deemed to have failed to exercise the jurisdiction vested in it for which a revisional Court while exercising jurisdiction under section 115a of the Civil Procedure Code can remove the defect. ( 12 ) IT appears from the impugned order that the revisional Court below never came to a finding that the executing Court failed to discharge its duty for which the interference in revision was necessary. On the other hand, it practically attacked the findings of the trial Court on merits and came to a conclusion that the report submitted by the pleader Commissioner was not a correct report for which it was liable to be set aside and a fresh local investigation was necessary. ( 13 ) IT is already stated above that in the original title suit, the present opposite party No. 1 appeared and filed a written statement, and finally opted not to contest the case. Mr. Banerjee argued that the opposite party No. 1, who was the defendant No. 1 in the title suit, did not contest inasmuch as he found that the land in respect of which the suit was filed was a different land and not the land purchased by the present opposite party No. 1. Mr. Banerjee argued that the opposite party No. 1, who was the defendant No. 1 in the title suit, did not contest inasmuch as he found that the land in respect of which the suit was filed was a different land and not the land purchased by the present opposite party No. 1. From the copy of the plaint, it transpires that the suit was filed on 11th June, 1959 and in paragraph 4, it is specifically stated that the present opposite party No. 1 in collusion with the defendants No. 2 to 4 who are relations and some gundas suddenly trespassed into the suit land on 8. 6. 59 and began to lat foundation of a building and proceeded with construction work on the suit land. On protest by the plaintiff, the defendant No. 1 gave out that he had purchased the suit land from one Ananda Sundari Devi. It is categorically stated that the superior landlord of Ananda Sundari had no right to settle the land as the said land was actually settled with Kiran Chandra Chakraborty, the vendor of the present petitioner, long ago. So, the plaintiff's case was that the defendants were mere trespassers into the suit land and they had no right to possess the same or to proceed with the construction work on the land of the plaintiff. Hence, the plaintiff prayed for declaration of his title and recovery of khas possession in respect of the suit land after dismantling and removing the structures illegally constructed by the defendants on the suit land. Thus, it is sufficiently clear from the plaint itself that the suit land was not only described in details in the schedule to the plaint but it was also pointed out that the defendants were raising illegal construction on it after trespassing into the said land. So it is difficult to believe that the defendants, including the present opposite party No. 1, understood that the suit was in respect of a different land on which they had no interest. On the other hand, in the plaint it was categorically indicated that the illegal construction of the defendants was being carried on the suit land. So it is difficult to believe that the defendants, including the present opposite party No. 1, understood that the suit was in respect of a different land on which they had no interest. On the other hand, in the plaint it was categorically indicated that the illegal construction of the defendants was being carried on the suit land. ( 14 ) FOR the purpose of finding out the suit land a Commissioner for local investigation was appointed and the Commissioner work was conducted by the learned Commissioner at the locale with notice to the defendants who also participated in the commission work. The report of the learned Commissioner was also filed demarcating the suit land. Opportunity was given to the defendants to file written objection against the said report, but no objection was filed and ultimately, the report with the case map was accepted by the trial Court. In course of final disposal of the Title Suit, the report of the learned, Commissioner and the case map were also marked as 'ext. 4 and 4a' respectively and considering the evidence adduced by the plaintiff, the trial Court decreed the suit in the manner indicated hereinabove. Therefore the decree was put into execution and a pleader Commissioner was appointed to demarcate the suit land for the purpose of delivery of possession through the bailiff of the Court in execution of the decree. ( 15 ) IT is sufficiently clear that the defendant had ample opportunity to produce his title deed for the purpose of locating the suit land. He had also the opportunity to produce other documents which were produced before the revisional Court. But the defendants did not like to challenge the decree, and he allowed the decree to became final. Subsequently, the decree was also put into execution and delivery of possession in terms of the decree was given to the decree-holder. The materials on record indicate that since the passing of the decree, the defendants tried to frustrate its execution by filing different title suits, misc. cases and other proceedings, but failed to get any favourable order in their favour and ultimately, the present Misc. Case was filed which also went against them. The materials on record indicate that since the passing of the decree, the defendants tried to frustrate its execution by filing different title suits, misc. cases and other proceedings, but failed to get any favourable order in their favour and ultimately, the present Misc. Case was filed which also went against them. But the revisional Court, as is stated above, went beyond the decree passed by the trial Court and remanded the case back to the executing Court for a fresh inquiry after appointment of the suitable and competent Survey Commissioner. The objection as regards faulty Commissioner's report as taken by the opposite party No. 1/judgment debtor before the executing Court in course of execution of the decree could only be taken during the pendency of the suit or even after passing of the decree in higher forum. But he allowed the decree to reach its finality and hence, in this particular circumstances he is not competent to take the executing Court beyond the decree. ( 16 ) MR. Banerjee, however, tried to argue that the opposite party No. 1 was not asking the executing Court to go beyond the decree, but his main endeavour was to show that excess land beyond the decree was given. Under section 47 of the Code it was within the competence of the executing Court to ascertain as to whether land in excess was given or not, as it relates to the execution, discharge or satisfaction of the decree. It is already indicated herein above that the defendant opposite party No. 1 was aware of the identity of the suit land as fixed by the Pleader Commissioner and in fact, in execution of the decree the self-same land was handed over to the decree holding after removing the illegal structure standing thereon. So the executing Court rightly came to a conclusion that the land that was included in the report of the Commissioner (Ext. 4) was given to the decree-holder. ( 17 ) MR. Banerjee, however, tried to argue that the report of the pleader Commissioner (Ext. 4) should not have been accepted by the trial Court as it was a faulty report. Mr. Dasgupta on this score rightly pointed out that this fact could have been agitated before the trial Court or even in appeal against the decree, but not in the manner done in this case. 4) should not have been accepted by the trial Court as it was a faulty report. Mr. Dasgupta on this score rightly pointed out that this fact could have been agitated before the trial Court or even in appeal against the decree, but not in the manner done in this case. The defendants practically did not produce any document in the title suit for the purpose of ascertaining the suit land and hence, they should not be allowed to reopen the suit once again on the basis of an application under section 47 of the Code. The materials on record indicate that the decree holder satisfactorily established the identity of the suit land for which the decree was passed and hence, the decree was rightly executed and the decree holder was put in possession. The apex Court in Safiqur Rehman Khan and Anr. (supra) also took such a view. There is nothing in the judgment of the trial Court or in the order of the executing Court to show that the decree was incapable of execution for the reason that the property was not properly identified. Keeping in view the special circumstances of this case, I fully concur with the submissions made by Mr. Dasgupta, and I hold and conclude that for the purpose of finality of litigation, an unsuccessful judgment-debtor should not be allowed to reopen a case on the grounds which he could have taken in course of the trial of the original suit. ( 18 ) THE trial Court having jurisdiction to decide a question before it, may decide it rightly or wrongly and once that decision reaches its finality, it cannot be set aside on the basis of a revisional application as has been done in this case. It appears that the revisional Court below did not consider the pleadings of the parties and the subsequent proceedings before the trial Court, but it simply exercising the powers and jurisdiction of an appellate Court came to a finding entirely on the basis of extraneous facts and materials which were not produced before the trial Court by the unsuccessful judgment-debtor. Even it opined that some sort of fraud was practised on Court and the plaintiff was put in possession of a land which was not purchased by him, though such a case was not specifically detailed in the application itself. Even it opined that some sort of fraud was practised on Court and the plaintiff was put in possession of a land which was not purchased by him, though such a case was not specifically detailed in the application itself. Thus, the revisional Court in this particular case exercised a jurisdiction which was not actually vested in it and hence, this Court in exercising its jurisdiction under Article 227 of the Constitution of India should rectify the defect. The case laws relied on by Mr. Banerjee namely AIR 1991 Supreme Court 455 (Masjid Kacha Tank v. Tuffail), 1995 supp. (4) Supreme Court Cases 436 (Gurbachan Singh v. Saliabi @ Bibijan) and (1995) 3 Supreme Court Cases 252 (P. Udaiyani Devi v. V. V. Rajeshwara Prasad Rao and Anr.) are on the same principle that concurrent findings of fact cannot be interfered with in exercise of revisional jurisdiction. In other words, these cases lay down that a revisional Court cannot interfere with the findings of fact under section 115 of the Civil Procedure Code. If the revisional Courts are allowed to act as an appellate Court in the manner done in this case, there will be no end of litigation and undoubtedly, it will result in gross and manifest injustice to the successful litigant as well as gross abuse of the process of the Court. ( 19 ) EXERCISE of power under Article 227 of the Constitution of India would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise, to secure the ends of justice. Such a view was also taken by the apex Court in M/s. Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors. reported in 1997 (9) Supreme 279 . Under Article 227 the power of superintendence by the High Court is not only administrative nature but is also of judicial nature. I am also not unmindful of the view of the apex Court in Khimji Vidhu v. Premier High School reported in (1999) 9 Supreme Court Cases 264 that finding of facts should not be interfered with by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India. I am also not unmindful of the view of the apex Court in Khimji Vidhu v. Premier High School reported in (1999) 9 Supreme Court Cases 264 that finding of facts should not be interfered with by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India. Jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and my be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an appellate Court only. In the decisions reported in AIR 1951 Calcutta 193 (Dalmia Jain Airways Ltd. v. S. Mukherjee), AIR 1954 Supreme Court 215 (Waryan Singh and Anr. v. Amarnath and Anr.), AIR 1984 Supreme Court 38 (Md. Yunus v. Md. Mutaqin and Ors.) and (1997) 5 Supreme Court Cases 76 (Achutananda Baidya v. Prafulla Kumar Gayan and Ors.) also took the view that under supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution of India is limited "to seeing that an inferior Court or tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In general words, the High Court's power of superintendence is a power to keep subordinate Courts within the bounds of their authority to see that they do what their duty requires and that they do it in a legal manner. At the risk of repetition, it must be concluded that the revisional Court below exceeded the jurisdiction vested in it by upsetting the findings of fact that reached its finality and accordingly, the impugned order suffers from a jurisdictional defect, and it is liable to be cured under Article 227 of the Constitution of India. ( 20 ) IN view of the above discussion, I hold and conclude that exercise of the power under Article 227 of the Constitution of India in special facts and circumstances of this case is necessary and the order passed by the revisional Court is liable to be set aside. ( 21 ) THIS application accordingly succeeds. The finding of the revisional Court below is hereby set aside. All interim order are also vacated. Parties do bear their own costs of this hearing. Applications succeeds.