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2004 DIGILAW 789 (PAT)

Amrit Rai Sharma v. Arun Kumar Sinha

2004-08-04

S.N.HUSSAIN

body2004
Judgment 1. Heard learned counsel for the parties. 2. The petitioners-judgment debtors have filed this civil revision against the order dated 11.2.2002 passed in Execution Case No. 207/1950, by which the learned Sub-ordinate Judge III, Gopalganj has rejected their petition for amendment of the execution application by way of adding 8 Dhurs 10.5 Dhurkis thereto. 3. This case has a long history as the predecessor of opposite party 1st set had filed Title Suit No. 392 of 1940 against the predecessor of the petitioners for declaration of title and recovery of possession with respect to 9.5 Dhurs of Plot No. 1343. Another suit bearing Title Suit No. 141 of 1941 was filed by the predecessor of the petitioners against the predecessor of the opposite party 1st set for declaration of title and recovery of possession with respect to 4 Dhurs of Plot No. 1344. It may be noted here that the total area of Plot Nos. 1343 and 1344 was 14 Dhurs and 3 Dhurkis. Both the suits were amalgamated and were referred to the Arbitrator, who submitted his award on 15.3.1944, on the basis of which both the suits were jointly decreed on 10.2.1947. 4. For execution of the aforesaid decree Execution Case No. 207 of 1950 was filed by the petitioners in which survey knowing Pleader Commissioner was appointed for delivery of possession, but by mistake the entire area of 14 Dhurs and 3 Dhurkis were mentioned in the execution petition and the writ issued to the Commissioner. When the said matter came to light the petitioners filed a petition for amendment of the execution petition for restricting the land to 1 Dhur 11 Dhurkis only. However, the writ issued to the Commissioner could not be amended, due to which the delivery of possession was executed on 4.4.1954 for the entire land, whereafter Misc. Case No. 95/1954 was filed for setting aside the said report and the delivery of possession, which was allowed on 17.8.1960 and the report was set aside. Consequently Misc. Case No. 141 of 1961 was filed by the predecessor of the opposite party 1st set for restitution of possession, but the same was dismissed by the Executing court and the Misc. Appeal No. 207/1962 arising out of the said order was also dismissed by the lower appellate court, whereafter the predecessor of the opposite party 1st set filed Misc. Case No. 141 of 1961 was filed by the predecessor of the opposite party 1st set for restitution of possession, but the same was dismissed by the Executing court and the Misc. Appeal No. 207/1962 arising out of the said order was also dismissed by the lower appellate court, whereafter the predecessor of the opposite party 1st set filed Misc. Appeal No. 241 of 1963, which was allowed by this Court and the matter was sent to the Executing court for restitution. It appears that since then the matter remained pending and it was only on 3.6.1999 that the petitioners filed a petition for amendment of their execution application by way of adding 8 Dhurs 10.5 Dhurkis thereto. This petition has been rejected by the learned 3rd Subordinate Judge, Gopalganj vide impugned order dated 11.2.2002 passed in Execution Case No. 207 of 1950. 5. Learned counsel for the petitioners submits that the award was prepared with respect to 1 Dhur 11 Dhurkis of land as well as for 8 Dhurs and 10.5 Dhurkis of land also. He further submits that in the award the land measuring 1 Dhur 11 Dhurkis was specifically mentioned, whereas the land measuring 8 Dhurs 10.5 Dhurkis was also mentioned as the rest of the disputed land which forms part and parcel of R.S. Plot No. 1344. He also contended that in the decree it was also specifically stated that it has to be prepared in accordance with the award and hence, according to him, the award and decree were with respect to the pieces of both the lands and the Executing court has to abide by the award and decree, which have never been challenged or modified. Learned counsel for the petitioners further contended that the petitioners cannot be deprived of the lands allotted to them by the decree on any technical ground and hence if the award and decree were also for 8 Dhurs and 10.5 Dhurkis, then it is the duty of the Executing court to include the said lands. In support of the aforesaid contentions learned counsel for the petitioners relies upon a decision reported in the case of S.P. Chengalvaraya Naidu (dead) by L. Rs. vs. Jagannath (dead) by L. Rs. In support of the aforesaid contentions learned counsel for the petitioners relies upon a decision reported in the case of S.P. Chengalvaraya Naidu (dead) by L. Rs. vs. Jagannath (dead) by L. Rs. and others (AIR 1994 Supreme Court 853), which deprecates property-grabbers and other unscrupulous persons from all walks of life who find the court process a convenient lever to retain the illegal gains indefinitely. Hence he claims that the amendment sought for by the petitioners was legal and proper and it should have been allowed by the learned court below. 6. On the other hand, learned counsel appearing on behalf of the opposite party no.1 vehemently opposed the said contentions and submitted that the suit filed by the petitioners, namely, Title Suit No. 141 of 1941 being only for 4 Dhurs of Plot No. 1344, there was no question for any decree in excess of his claim. He further contended that the award was for only 1 Dhur 11 Dhurkis of lands and the decree was prepared accordingly, hence the petitioners themselves corrected their execution petition from 14 Dhurs 3 Dhurkis to 1 Dhur 11 Dhurkis as far back as in 1954 itself. Learned counsel for the opposite party no.1 also averred that the petitioners them selves admitted their share to be 1 Dhur 11 Dhurkis before this Court in Misc. Appeal No. 241 of 1963 and on that basis this Court allowed the appeal in 1964 and remanded the matter to the Executing court for restitution of possession to the decree- holders-opposite parties except 1 Dhur 11 Dhurkis of land, which was to be retained by the petitioners as per the decree. Hence he averred that the recent amendment petition of 1999 is an afterthought merely to usurp further land which cannot be legally allowed. 7. Hence he averred that the recent amendment petition of 1999 is an afterthought merely to usurp further land which cannot be legally allowed. 7. After considering the respective claims raised by the parties and after perusing the relevant materials on record l find that the case laws cited by the learned counsel for the petitioners, namely, AIR 1994 Supreme Court 853 was in respect of a case where the litigant withheld a vital document to gain advantage on the other side, but here the matter is completely converse as the other side has not withheld or concealed anything, rather the petitioners themselves did not include the land in the execution case for about 50 years, although admittedly they were fully aware of the award and decree in question. 8. Furthermore, the petitioners are seeking amendment not in the pleadings of a suit, rather they are claiming amendment in the execution application with respect to the land after about five decades of the filing of the execution case, although they had earlier also in 1954 got the measurement of land amended in the execution case, but they did not make any mention of the land, which they now seek to be added. Even then they are unable to give any reason for such an inordinate delay and long period of inaction. 9. From the certified copy of the decree dated 10.2.1947, produced by the learned counsel for the petitioners, it appears that no detail of land was mentioned