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2004 DIGILAW 346 (GAU)

Nur Mohammad v. Abdulahad

2004-05-18

P.P.NAOLEKAR

body2004
JUDGMENT P.P. Naolekar, J. 1. The Plaintiffs-Petitioners have filed a suit under Section 6 of the Specific Relief Act, being Title Suit No. 32/1987, for recovery of Khas possession of the suit land alleging therein that they had filed a suit (Title Suit No. 107/83) for declaration of their title in respect of a portion of land purchased by them, measuring 2K, out of 3 Bighas, 1 Katha and 10 Lechas, within Dag No. 534, under Khatian No. 616 at Village Mankachar Part-I and for khas possession of the land described in Section- A to the plaint, on the allegations that the Defendants in the year 1982 had dispossessed them. The suit was decreed by the trial Court by its judgment and decree dated 03-07-1985 and the Executing Court in Execution Case No. 25/85 delivered possession of the Schedule-A land to the Plaintiff/Petitioners on 05-08-1986. Even after delivery of possession, the Defendant tried to dispossess the Plaintiff Petitioners, therefore, they had to file another Suit (TS No. 279/87) for perpetual injunction. The Plaintiffs obtained interim order of injunction against the Defendants and others. The Defendants by violating the order of injunction entered into the Schedule-A land on 08-10-1987 and constructed two tin roofed houses and thereby dispossessed the Plaintiffs from the suit land. 2. The Defendant filed his written statement raising the issues that the suit is not maintainable as there is no cause of action; that the suit is barred by limitation and barred by principle of waiver, estoppel and acquiescence and also barred under Section 6 of the Specific Relief Act. Objection to the jurisdiction of the Court to try the suit was also raised. It is further alleged by the Defendant that the Defendant has purchased 1 B-1K of land by two registered sale deed from, Banik Madhab Sil and his son Ranjit Kr. Sil and have been in possession of the land since 18/19 years and that he has been in possession of 2 Kathas of Khas land on the East of the PWD road besides the purchased land. That he was never evicted from the suit land in Execution Case No. 25/85 and never dispossessed the Plaintiffs from the suit land on 08.10.1987. That he was never evicted from the suit land in Execution Case No. 25/85 and never dispossessed the Plaintiffs from the suit land on 08.10.1987. It is further alleged that the Plaintiff purchased 3 B. 1 K 10 3/4 Lechas of land from Bani Madhab Sil and have been possessing about 4 1/2 Bighas of land and prayed for dismissal of the suit. 3. The Title Suit No. 32/87 was decreed by the trial Court in favour of the Plaintiffs and the said judgment and decree was challenged by the Defendant by filing a revision in the High Court. The revision was registered as Civil Revision No. 348/92. The learned Single Judge set aside the judgment and decree passed by the trial Court and remanded back the case to the trial Court with a direction to appoint a competent Survey Commission to visit the spot and point out the actual boundary between the land covered by the decree passed in TS No. 107/83, i.e. the original suit, and the land of the Defendant covered by the sale deed marked as Exhibits 'Ka' and 'Kha' in TS No. 32/87. It was further directed that the said Survey Commission after completing his enquiry, shall submit a report before the trial Court, which shall thereafter invite objections, if any, from the parties and upon hearing such objections, the Court shall decide the matter afresh as it thinks fit and proper. It is further directed that in course of such objections, parties are at liberty to adduce their evidence in support of their respective claims with regard to the report that may be submitted by the Survey Commission. 4. After remand, the trial Court appointed Survey Commission for spot inspection and the Amin Commission submitted its report. Thereafter the matter was listed on 17.06.1998 and the Amin Commissioner was examined, cross-examined and discharged on that date and on 08.07.1998 argument was heard by the trial Court. The trial Court dismissed the suit with cost. Aggrieved by the said judgment and order dated 17.07.1998, the present revision petition is filed. The trial Court while dealing with the issue Nos. The trial Court dismissed the suit with cost. Aggrieved by the said judgment and order dated 17.07.1998, the present revision petition is filed. The trial Court while dealing with the issue Nos. 1 and 2 has held that as the injunction order passed in TS No. 279/87 for temporary injunction restraining the Defendants from interfering with the possession was alleged to have been violated, the proper course for the Plaintiffs would have been to move an application for breach of injunction under Order 39, Rule 2(A) of the Code of Civil Procedure, instead of filing a suit under Section 6 of the Specific Relief Act. The Court has further proceeded in holding that TS No. 279/ 87 was in regard to the same subject-matter and the Plaintiff cannot seek relief from different Civil Courts for the same subject-matter and for the same cause of action, under Explanation III of Section 11 Code of Civil Procedure, and therefore, the suit is barred by the principle of res judicata. The trial Court has proceeded and recorded the findings contrary to the provisions of law without understanding the scope and ambit of Section 11, Order 39, Rule 2(A) of Code of Civil Procedure. It is apparent from the case that the first suit was filed for declaration of right, title and interest of the suit land and for possession, TS No. 279/87 was filed for injunction claiming relief restraining the Defendant therein from dispossessing him from the suit lands, whereas the present suit under Section6 of the Specific Relief Act was filed by the plain- tiff on the allegation that he was put in possession in execution of the decree for possession in TS No. 107/83 and was later on again dispossessed on 10.08.1997 in spite of there being decree for injunction. Therefore, it is apparent that the cause of action accrued to the Plaintiffs are different and by no stretch of imagination the principle of res judicata under Section 11, of the Code of Civil Procedure will apply in the facts and circumstances of the present case. The observation made by the trial Court that the Plaintiffs should have approached for breach of injunction is also contrary to the provisions of law. The observation made by the trial Court that the Plaintiffs should have approached for breach of injunction is also contrary to the provisions of law. Under Order 39, Rule 2(A) of Code of Civil Procedure, the Plaintiffs could have got the relief for breach of the order of injunction by sending the Defendant to civil prison or by attachment of his property. Whereas the relief claimed under Section 6 of the Specific Relief Act is independent to that of the relief for breach of injunction order, which is based on dispossession of the Plaintiff from the suit land by the Defendant, if the dispossession by the Defendant is without any authority of law. Thus, the decision arrived at by the trial Court that the suit, as it is filed by the Plaintiffs, was barred by principle of res judicata is not in accordance with law. 5. When the matter has been remanded back by the High Court for spot inspection and decision thereof, the trial Court has issued the following specific directions to the Survey Commission: (a) To survey Dag No. 534 with original Map, Chitha, Jamabandi and to find its present position. (b) To find out boundary lines of decretal land of TS No. 107/83 and that of Ext. Ka and Ext. Kha; (c) To survey 'A' Schedule land of TS No. 32/ 87 and report whether land of Ext. Ka and Ext. Kha is part of land of TS No. 107/83. The Survey Commissioner was examined by the trial Court. It appears that the Survey Commission has not followed the directions issued by the trial Court, which is apparent from the following deposition of the Survey Commissioner given before the Court: Copy of decree of TS No. 107/83 was not supplied with the writ. Copy of Exts. 'Ka' and 'Kha' were supplied to me. Decretal land in connection with TS No. 107/1983 was not found out separately. The land in Ext. Ka and Ext. Kha were not separately found out. No boundary line between the land decreed in TS No. 107/83 and the land in Ext. Ka and Kha was found out. In Dag No. 534 there is 7 B, 14 L of land. No old map was found at the time of survey. On the north of Dag No. 534 there is Dag No. 535. It is a road. No boundary line between the land decreed in TS No. 107/83 and the land in Ext. Ka and Kha was found out. In Dag No. 534 there is 7 B, 14 L of land. No old map was found at the time of survey. On the north of Dag No. 534 there is Dag No. 535. It is a road. There is Dag No. 553 on the south of 534. Map was not available at the time of my survey. From the note in the Chitha 1 came to know that some new Dags are created from old Dag 534. Total 9 Dags are created. I cannot say how the revenue staff created the new Dags. I did not find boundary marks. I survey on the basis of the new map. 6. It is a fact found by the Court that land of which the decree was executed for possession in TS No. 107/83 is a subject-matter of dispute in the suit filed by the Plaintiffs-Petitioners under Section 6 of the Specific Relief Act for recovery of possession. Therefore, it is the Plaintiff's case that they were put in possession in execution of the decree and was later on dispossessed by the Defendant, whereas, it is the case of the Defendant that he has not dispossessed the Plaintiffs from the portion of the land, of which possession was delivered by the Defendant in Execution of the decree of TS No. 107/83, the Defendant is in possession of the land, which he is holding under the sale deed, Exhibits Ka and Kha. Therefore, it was necessary for the trial Court to find out whether the Plaintiffs have been dispossessed form the portion of the property of 2 Katha of land, which has been delivered possession of by the Defendant or the Defendant is in possession of the property claimed by him to be his own. For this purpose, it is necessary to ascertain the property on the spot, which has been delivered possession in execution of the decree in TS No. 107/83 and to find out whether the Plaintiffs are in possession of that property or the Defendant is in possession of the same. No finding is recorded by the Court in that regard. For this purpose, it is necessary to ascertain the property on the spot, which has been delivered possession in execution of the decree in TS No. 107/83 and to find out whether the Plaintiffs are in possession of that property or the Defendant is in possession of the same. No finding is recorded by the Court in that regard. The spot inspection report, without taking the help of the decree passed in TS No. 107/83 and the execution thereof and also without identifying the land claimed to be in possession of the Defendant under Exhibits 'Ka' and 'Kha', would be a futile exercise. If the spot verification cannot clarify the position, the Court should have given opportunity to the parties to lead evidence on the point, particularly so, when the direction of the High Court was in that regard, at least the Court should have fixed on its own, a date for the Plaintiffs and the Defendant to lead evidence on the question and then should have determined the case. 7. In the present case, no such step has been taken by the Court and the Court has proceeded with the decision on the issue, which does not have support of either law or facts. In the aforesaid circumstances, the judgment and order dated 17.07.98 of the trial Court passed in TS No. 32/87 is set aside and the matter is again remanded back to the trial Court to appoint a fresh Amin Commission to inspect the spot with the directions, as were issued in previous proceedings and instructions dated 31.03.1997 by a writ, to find out and ascertain actual boundary of the land under the possession of the Plaintiffs and Defendant as claimed by the respective parties. The Survey Commission after completing his inspection shall submit a report before the trial Court, which shall thereafter invite objections, if any, from the parties and give opportunity to the parties to lead further evidence, if any, and upon hearing the parties, the Court shall decide the matter afresh. Parties shall appear before the trial Court on 07.06.2004 for further proceeding. 8. Office shall send back the LCR within seven days. It shall be the responsibility of the Superintendent of the Section to see that the records are sent back within the said period.