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2008 DIGILAW 1169 (JHR)

Md. Gulab v. H. H. Rahman

2008-10-15

R.K.MERATHIA

body2008
JUDGMENT : This writ petition has been filed under Article 227 of the Constitution of India against the order dated 28.2.2006 and also the second part of the order dated 25.9.2006 passed on the petition dated 15.7.2006 filed by the petitioners; by the learned Munsif, Hazaribagh in Execution Case No. 4 of 2005. 2. Mr. Satya Narayan Prasad, learned counsel, appearing for the petitioner, submitted that there was no description of the disputed land in the decree; and that the executing court had no jurisdiction to direct the parties to lead evidence to ascertain the disputed land. He further submitted that in the plaint, the land was said to be situated in the village Chapar, whereas in the execution petition, the land is said to be situated in the village Nawada. In these circumstances, the learned court below should not have rejected the objections of the judgment debtors-petitioners. He relied on 1996 (2) PLJR 32 and submitted that the executing court cannot amend or correct the decree. Relying on the judgment reported in 2004(4) JLJR 51, he submitted that no decree could be granted if the property was vague. 3. Mr. Akhtar, appearing for the respondents, on the other hand, supported the impugned orders. He submitted that the suit was filed by the plaintiffs-respondents about 40 years back in 1965. Along with the plaint a map regarding the suit property was filed but the same got destroyed. The suit was decreed. The appeal filed by the petitioners against the decree was dismissed. In the Second Appeal, the matter was remanded. On remand the decree was affirmed. Again a Second Appeal was filed in this Court which was also dismissed. Thus the petitioners lost throughout. He further submitted that a local inspection was also made by the Munsif during these proceedings for identifying the disputed land. He further submitted that the parties know fully well as to what is the suit property and there is no vagueness in the same. He further submitted that the disputed plot is the open area of Plot No. 12 on the southern-eastern portion of the Mosque used by the people of the community. He further submitted that a petition for amendment of the petition for execution, has been filed before the executing court for correction of Nawada as Chapar, but no order could be passed thereon because of stay in the present case. He further submitted that a petition for amendment of the petition for execution, has been filed before the executing court for correction of Nawada as Chapar, but no order could be passed thereon because of stay in the present case. He further pointed out to the following Paragraph of the objection filed on behalf of the petitioners under Order XXI Rule 23(2) C.P.C.:- “4. That the direction under the Decree has already been complied with by the Judgment Debtor and the space in the South and East of the Mosque has already been cleared for the users. The Muslims are freely using the vacant space in front of the Mosque on the South and East of it.” He further submitted that in these circumstances, after contesting the case for 40 years and loosing the same, the petitioners cannot be allowed to put hindrance in the execution of the decree on the purported ground of vagueness. He relied on A.I.R. 2003 SC 3789, A.I.R. 2004 SC 4377 and A.I.R. 2006 Kerala 237. He further submitted that petitioners have also cross examined the witnesses produced by the respondents in the executing court. 4. I find force in the submissions of Mr. Akhtar. The petitioners have been contesting this case since last 40 years. They lost up to the second appellate stage in this Court. Now they cannot be allowed to take the plea of vagueness or with regard to the identity of the suit land. The disputed land is clear to the parties. Petitioners themselves have said that they have cleared the open space in the South and East of the Mosque. In these circumstances the judgment reported in 2004(4) JLJR 51 is of no help to the petitioners. Moreover, it is not a case of amendment or correction of the decree, and therefore the judgment reported in 1996(2) PLJR 32 is not applicable to this case. Even then, if, on the objections raised on behalf of the petitioners, with regard to the vagueness or identity of the suit land, the executing court directed the parties to lead evidence, I do not find any wrong in it. In the facts and circumstances, noticed above, I do not find any reason to interfere with the impugned order. Accordingly, this writ petition is dismissed and the interim order or status quo granted on 4.1.2007 stands vacated. However, no costs.