Research › Search › Judgment

Orissa High Court · body

2005 DIGILAW 618 (ORI)

SRI BISWANATH SAHOO v. SRI MANOJ TANMAY MOHAN

2005-10-24

A.S.NAIDU

body2005
A. S. NAIDU, J. ( 1 ) PETITIONERS as plaintiffs filed C. S. No. 52/2004 in the Court of Civil judge (Senior Division), Bhubaneswar, inter alia, praying as follows:-" (A) Let a decree for declaration be passed with respect to the suit land as described in Schedule-A of the plaint as shown in relay map attached to the plaint and identified in yellow colour showing an area of Ac. 0. 112 decimals of land, forms part of Plot No. 38 of 1962 settlement R. O. R. /1953-54 Revenue map and plaintiffs have absolute right, title, interest therein, with an alternative declaration that the suit land as indicated above does not form part of Plot No. 37 of 1962 settlement r. O. R. /1953-54 Revenue Map and the defendants have no manner of right, title and interest therein. (B) Let a decree for recovery of damage of Rs. 50,000/- (Rupees fifty thousand)only as sustained by the plaintiffs on account of illegal dispossession of the plaintiffs by the defendants from the suit land and towards demolition of the house standing on the suit land by the defendants. (C) For recovery of possession. (D) For permanent injunction restraining the defendants or anybody else, claiming through them from raising any construction over the suit land and form alienating or encumbering the suit land or any portion thereof. (E) For cost. (F) For any other relief/reliefs to which the plaintiffs are entitled under laws and equity". ( 2 ) THE opposite party-defendants before filing written statement before the Court below, filed a petition under Order 7, Rule 11 of the Civil Procedure Code with a prayer to reject the plaint on the ground that the predecessors in interest of the defendants had filed original Suit No. 161/83 for declaration of right, title and interest in respect of the suit property and for recovery of possession thereof and for permanent injunction against the plaintiffs and the said suit was decreed on contest. The appeal filed against the said judgment and decree, being T. A. No. 4/13 of 1989-90, was also dismissed. In Second Appeal, being No. 108/1995, the concurrent judgment and decree passed by both the Courts below were confirmed by this Court. ( 3 ) ACCORDING to the opposite party-defendants during pendency of the Title Appeal the decree passed by the trial Court was sought to be executed in Execution Case no. In Second Appeal, being No. 108/1995, the concurrent judgment and decree passed by both the Courts below were confirmed by this Court. ( 3 ) ACCORDING to the opposite party-defendants during pendency of the Title Appeal the decree passed by the trial Court was sought to be executed in Execution Case no. 131/1995 and the said Execution Case, though stayed initially, proceeded after dismissal of the second Appeal and the defendants took delivery of possession of the suit lands in presence of the judgment debtors, i. e. the present petitioners, and in presence of witnesses. As possession of the lands was taken over during execution of a decree, objection, if any, ought to have been raised in the said execution case itself under Section 47 of the Code of Civil procedure. Having not done so, the present petitioners are estopped from filing the present fresh suit for declaration of right, title and interest. ( 4 ) THE petitioner-plaintiffs filed an objection to the said petition under Order 7, Rule 11, Civil Procedure Code filed by the defendants-opposite party stating that the subject matter of the present suit is Ac. 0. 112 decimals of land appertaining to Hal Khata No. 938, Hal Plot No. 511/1623 out of total area of Ac. 0. 257 decimals situated in Hal Mouza bhubaneswar Town, Unit No. 32, Gobind prasad. It was emphatically submitted that the said plot was neither the subject matter of the earlier suit, i. e. O. S. No. 161/1983, nor possession of the said lands was taken in course of execution of the decree passed in the said suit, and as such, the petition filed under Order 7, Rule 11, civil Procedure Code was devoid of any merit and ought to be rejected. ( 5 ) THE Trial Court after hearing parties and after perusing the materials arrived at the conclusion that as possession of the lands in the present suit was taken over during execution of the decree passed in earlier suit in execution Case No. 131/1995, it would amount to delivery of possession of excess land in execution of the decree and as such the remedy for the present petitioners was to file a petition under Section 47 of the Civil Procedure Code and the present suit was thus not maintainable. On the basis of such finding the petition filed under Order 7, Rule 11 was allowed and the plaint was rejected. The said order is impugned in this writ petition by the petitioners-plaintiff. ( 6 ) MR. B. H. Mohanty, learned counsel appearing for the petitioners, referring to several documents i. e. , spot map and other materials, submitted that the lands which are in dispute in the present suit (C. S. No. 52/2004)were never the subject matter of the earlier suit (O. S. No. 161/1983) and possession of the said lands was not taken over in execution of the said decree/on the basis of such submission Mr. Mohanty submitted that the Trial court acted illegally and with material irregularity in holding that as possession of the lands was taken over in execution of the decree passed in the earlier suit, if any excess land was found to have been delivered, the only remedy was to file a petition under Section 47 of the Civil Procedure Code in the execution case. According to Mr. Mohanty, the Court below committed an error in rejecting the plaint and it is a fit case where the order of the Court below may be quashed. ( 7 ) MR. Ashok Mukherjee, learned counsel appearing for the defendants-opposite party, at the other hand, relying upon the averments made in paragraph-13 and other paragraphs of the plaint of C. S. No. 52/2004 submitted that the plaintiff-petitioners have clearly admitted that in execution of the decree the lands described in Schedule-A of the plaint and marked yellow were wrongly and illegally taken over and such admission made in the plaint amounts to delivery of possession of excess land and as such the only and proper remedy for the judgment debtors was to recover the property delivered excess by filling an application under Section 47 of the Civil Procedure code and not by a separate suit. In support of such submission Mr. Mukherjee relied upon the following decisions :- (1) In the case of Smt. Revti Devi v. Khiali Ram and Ors. (2) In the case of Niranjan Das and ors. v. Liquidator Puri Bank ltd. (3) In the case of Tarapada Mishra v. Hare Krishna Das and Anr. (4) In the case of M. P. Shreevastava v. Mrs. Mukherjee relied upon the following decisions :- (1) In the case of Smt. Revti Devi v. Khiali Ram and Ors. (2) In the case of Niranjan Das and ors. v. Liquidator Puri Bank ltd. (3) In the case of Tarapada Mishra v. Hare Krishna Das and Anr. (4) In the case of M. P. Shreevastava v. Mrs. Veena (5) In the case of Gopalkrishna kammath v. Bhaskar Rao (6) In the case of Rajendra Prasad and ors. v. Jai Prakash Pandey and Ors. (7) In the case of Merla Ramanna v. Nallaparaju and Ors. , ( 8 ) I have carefully gone through all the decisions. There is no quarrel about the legal proposition that the executing Court has to see that the decree holder gets everything that the decree directs and not something else. So if there is any dispute about the identity of any land, possession of which has been handed over in excess, only the executing Court can determine the said dispute. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and under Section 47 of the Civil Procedure Code, it can be determined by the Court executing the decree. Similarly, law is well settled that if a question with regard to delivery of possession of any land arises by the parties to the decree in course of execution, a separate suit shall be hit by the principles of constructive res judicata. ( 9 ) THE stand taken by Mr. Mukherjee is however strongly repudiated by Mr. Mohanty. According to Mr. Mohanty in all those cases while executing a decree possession of some other lands which were not part and parcel of the decree was handed over but then in the present case, the dispute is not of that nature. Relying upon the writ of delivery of possession and the bailiff's report. Mr. Mohanty submitted that the land in dispute in the present case, i. e. Hal Plot No. 511/1623 was never handed over in course of execution of the earlier decree and as such the decisions relied upon have absolutely no relevance to the dispute in hand. ( 10 ) I have heard learned counsel for the parties at length, perused all the materials available on record and materials filed by the parties very meticulously and considered the submissions made most diligently. ( 10 ) I have heard learned counsel for the parties at length, perused all the materials available on record and materials filed by the parties very meticulously and considered the submissions made most diligently. Delivery of excess lands in course of execution of a decree is a sin-qua-non for non-maintainability of a separate suit, as such a dispute can be resolved by the executing Court under Section 47 of civil Procedure Code. A perusal of the schedule of lands of the earlier suit clearly reveals that the lands appertaining to Hal Plot No. 511/1623 were not the subject matter of the said suit. But then among other plots, Plot No. 511/1627 was the property in dispute in the said suit. The writ of delivery of possession issued by the Executing Court, a copy of which is annexed as Annexure-A, reveals that the bailiff was directed to remove any person from possession of the lands specifically mentioned in the writ and handed over possession of the same to the decree holder (s ). The said writ reveals that the land in dispute in the present suit appertaining to Plot No. 511/1623 was not mentioned. Similarly, the report of the bailiff, Annexure-B, reveals that the said bailiff reported that he had handed over possession of the plots more fully described in the writ of delivery of possession. The report does not reveal that possession of Plot No. 511/1623 was ever handed over to the decree holder (s ). A comparison of the schedule of properties as per the decree vis-a-vis writ of delivery does not reveal that possession of plot No. 511/1623 was ever handed over in execution of the decree. ( 11 ) IN order to substantiate the arguments mr. Mukherjee relies upon the averments made in some of the paragraphs of the plaint. Fact remains, no written statement has been filed till now. Countenancing the submission of Mr. Mukherjee's, Mr. Mohanty, submitted that it is not the plaintiffs' case that in executing the decree the bailiff handed over possession of the lands appertaining to Plot No. 511/1623. At the other hand, according to Mr. Mohanty, after the bailiff left the spot clandestinely the decree holder encroached upon the disputed lands. In other words, according to Mr. Mukherjee's, Mr. Mohanty, submitted that it is not the plaintiffs' case that in executing the decree the bailiff handed over possession of the lands appertaining to Plot No. 511/1623. At the other hand, according to Mr. Mohanty, after the bailiff left the spot clandestinely the decree holder encroached upon the disputed lands. In other words, according to Mr. Mohanty, the defendants have been possessing the disputed lands forcefully and without any authority and such possession was not handed over to them in execution of the decree passed in the earlier suit and as such the present suits is maintainable. ( 12 ) AN analysis of the aforesaid facts and circumstances leads to the irresistible conclusion that either the possession of the disputed land, i. e. Plot No. 511/1623 was delivered to the defendants by the bailiff in course of or during the execution of the decree passed in o. S. No. 161/1983, in Execution Case No. 131/1995 and/or possession of the said plot was taken over at a subsequent stage by the defendants. Law is no more res integra as discussed above that if delivery of possession of certain lands in excess of the decree passed is handed over in course of and/or during execution proceeding, the proper remedy for the judgment debtor is to agitate the said point before the Executing Court by way of a petition filed under section 47 of the Civil Procedure Code. But then, at the other hand, if the delivery of possession of some land has not been made in course of or during executing the decree and the decree holder subsequently encroached upon the same, the remedy would be to file a suit for eviction. Such a dispute involves disputed questions of fact, which can only be determined in course of trial of the suit. ( 13 ) IN view of the aforesaid clear position, this Court feels that allowing the petition under Order 7, Rule 11, Civil Procedure Code at the very threshold, i. e. before the defendants file any written statement, was not just or proper. ( 13 ) IN view of the aforesaid clear position, this Court feels that allowing the petition under Order 7, Rule 11, Civil Procedure Code at the very threshold, i. e. before the defendants file any written statement, was not just or proper. Accordingly, this Court has no hesitation to quash the impugned order and direct the Trial Court to proceed with the suit by framing an issue as to whether the property in dispute was handed over to the defendants in course of and during execution of the earlier decree passed in O. S. No. 161/1983, i. e. in execution Case No. 131/1995 and/or the possession thereof was taken over by the defendants at a later date or time and determine the said issue in consonance with the materials available. The Writ Petition is accordingly allowed. Petition allowed. .