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2008 DIGILAW 401 (GAU)

Lalmohan Das v. Samiran Das

2008-06-02

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. This petition under Section 115 of the Civil Procedure Code (hereafter referred to as the Code) read with Article 227 of the Constitution of India witnesses a challenge to the judgment and order dated 10.1.2008 passed by the learned District Judge, Hailakandi in Miscellaneous Appeal No. 4/2007 preferred against the order dated 29.1.2007 passed by the learned Civil Judge, Sr. Division, Hailakandi in Title Execution Case No. 20/2006 dismissing the application filed by the revision petitioner under Order-XXI, Rules 97 and 101 read with Section 151 of the Code. The learned Executing Court as well as the Appellate Court having decided against the revision petitioner, the revisional jurisdiction of this Court is sought to be revoked for redress. 2. I have heard Mr. I.H. Laskar, learned Counsel for the petitioner and Mr. Dhar, learned Counsel for the respondent No. 7 who has entered through a caveat. 3. Caveat stands discharged. 4. Shortly put, the facts necessary for the disposal of this petition are that the respondent Nos. 1, 2, 3 and 19 instituted Title Suit No. 29/1999 in the Court of learned Civil Judge, Sr. Division, Hailakandi (later on renumbered as Title Suit No. 2/2001) praying for a decree inter alia for a declaration of their right, title and interest in the suit land and also for recovery/confirmation of the possession thereof. The respondents 4 to 16 were impleaded as defendants. 5. In the suit, the contesting defendants registered a counter claim seeking a declaration of their right, title and interest in the same land and also a decree for their possession thereof. The parties are evidently related to the erstwhile owner of the suit land Surendra Das (since deceased). The petitioner admittedly was not a party to the suit. 6. The learned Trial Court by judgment and order dated 24.7.2003 dismissed the suit of the respondent/plaintiffs but decreed the counter claim of the respondents 4 to 16 (defendants therein). It is submitted at the bar that the decree, which has remained unassailed till date was thereafter assigned to the present respondent No. 17 for valuable consideration. In law, therefore, the said respondent has stepped into the shoe of the decree holders. 7. The respondent No. 17 thereafter instituted Title Execution Case No. 20/2006 in the Court of the learned Civil Judge, Sr. Division, Hailakandi, for execution of the decree. In law, therefore, the said respondent has stepped into the shoe of the decree holders. 7. The respondent No. 17 thereafter instituted Title Execution Case No. 20/2006 in the Court of the learned Civil Judge, Sr. Division, Hailakandi, for execution of the decree. It was at that stage that the present petitioner filed an application under Order XXI, Rules 97, 101 read with Section 151 of the Code praying for dismissal of the execution proceeding inter alia contending that he had been in occupation of the suit land under the original owner by paying annual land revenue and on the death of his landlord he had attorned to his sister Smti. Sushila Das. According to him, on the demise of Smti. Sushila Das, her sons and daughters did not raise any objection and he continued to occupy the land in the said capacity. He alleged that though his wife Smt. Lilurani Das was shown as plaintiff No. 3 in the suit, she was neither aware of the said proceeding nor did she lend her signature on the necessary papers relating thereto. He also asserted that he was unaware of the suit and imputed that the defendants therein had obtained the decree in their favour by suppressing material facts more particularly those relating to his possession of the suit land as occupancy tenant of Surendra Das (since deceased) and his heirs. 8. The learned Executing Court by its order dated 29.1.2007 having rejected the application, the petitioner carried the issue in appeal in Misc. Appeal No. 4/2007, which has since been dismissed by the order dated 10.1.2008 impugned in the instant proceeding. 9. Mr. Laskar has argued that the impugned order is per se illegal and unsustainable in law as the Court below approached the issue as if the petitioner's application before the learned Executing Court was one for review under Order 47 of the Code. He further urged that as the dismissal of the appeal is principally on the ground that it is not maintainable in law and not on merits; on that consideration as well the impugned judgment and order is liable to be interfered with. Mr. Laskar emphatically submitted that as there were sufficient materials on record to demonstrate the petitioner's tenancy in respect of the suit land under late Surendra Das and his heirs, the findings to the contrary are perverse, vitiating the impugned order. 10. Mr. Mr. Laskar emphatically submitted that as there were sufficient materials on record to demonstrate the petitioner's tenancy in respect of the suit land under late Surendra Das and his heirs, the findings to the contrary are perverse, vitiating the impugned order. 10. Mr. Dhar has in reply argued that as the petitioner admittedly was not a party to the suit, his prayer for review of the judgment and decree passed therein was rightly held to be untenable in law by both the Courts below. The petitioner's application in the execution case being under Order XXI, Rule 101 of the Code, no appeal lies from the order adjudicating the same and, therefore, the observation of the learned lower Appellate Court to this effect is also unassailable. The learned Counsel contended that as the decree remains unchallenged as on date, the learned Trial Court having decided the issues therein on an exhaustive consideration of the pleadings and the evidence on record, the petitioner's belated plea of tenancy is apparently frivolous and the learned Courts below have rightly held as such. As the rejection of the plea of tenancy claimed by the petitioner, is based on an in-depth analysis of the material on record, this Court in the exercise of revisional jurisdiction would not interfere therewith. 11. I have extended my due consideration to the pleaded facts, the documents available and the arguments advanced. The petitioner admittedly was not a party to the aforementioned suit, which was decreed as far back as on 24.7.2003. There is no wrangle at the bar as well that the decree has not been challenged in any forum. There is no controversy as well that the defendants in the suit had assigned the decree in favour of the respondent No. 17. In other words, the locus of the said respondent in Title Execution No. 20/2006 is not in issue. The petitioner's application before the learned Executing Court, as it reveals, is under "Order XXI, Rule 101 and Order XLVII read with Section 151 of the Code". Mr. Laskar in course of the arguments has sought to impress upon this Court that reference of Order XLVII had been a typographical error and what was intended to be mentioned was Section 47 of the Code. Mr. Laskar in course of the arguments has sought to impress upon this Court that reference of Order XLVII had been a typographical error and what was intended to be mentioned was Section 47 of the Code. He has further submitted that the petitioner having claimed to be in possession of the suit land and resisting the execution proceeding, the application in essence is one under Order XXI, Rule 97 of the Code. In other words, the learned Counsel asserted that the application filed by the petitioner had in fact been filed under Order XXI, Rule 97 and 101 of the Code as well as Section 47 of the Code. 12. It is too trite that an application in law ought not to be construed decisively on the basis of the provisions of law referred to therein but by the substance of the averments contained in it. Having regard to the petitioner's pleaded case, this Court, in the interest of justice is inclined to accept the petitioner's application to be one under Order XXL Rule 97 and 101 of the Code read with Section 47as well as 151 of the Code. In that view of the matter, having regard to the nature of the determination made by the learned Executing Court, the appeal filed by the petitioner before the learned Court below is considered to be maintainable. This Court would, therefore, scrutinize the rival submission, proceeding on the premise that the appeal by the petitioner before the learned Court below is maintainable in law. 13. The learned lower Appellate Court has rejected the petitioner's contentions mainly on the ground that the application in the Executing Court had been filed after three years of the passing of the judgment decree in Title Suit No. 2/2001. Noticing that the Khatian on which the petitioner has founded his claim of occupancy tenancy under Surendra Das (since deceased) reflects, also the name of Smti. Lilurani Das (Plaintiff No. 3, wife of the revision petitioner) who along with the other plaintiffs in the suit had claimed right, title and interest in the suit land through inheritance, it rejected his (petitioner) contention of ignorance of the said proceeding. On the same consideration, the learned Court below also declined to accept the assertion that the petitioner's wife Smti. On the same consideration, the learned Court below also declined to accept the assertion that the petitioner's wife Smti. Lilurani Das, plaintiff No. 3 was unaware of the filing of the suit and that she in fact did not sign any of the documents pertaining thereto. The learned Court below also refused to take cognizance of the Kacha Khatian as inadmissible in law. 14. The impugned order does not disclose that the said document had been sought to be introduced in the proceeding through any oral evidence or by other mode recognized in law. It noticed as well that the said Khatian had been issued three years after passing of the decree in Title Suit No. 2/2001. On a consideration of all as stated hereinabove, the learned Court below on merits rejected the petitioner's contentions. 15. In the above view of the matter, on a scrutiny of the facts and materials available on record, the conclusions of the learned lower Appellate Court as recorded hereinabove, in the opinion of this Court, cannot be dubbed and denounced as perverse or absurd. The impugned order does not disclose as well that it suffers from the contravention of any fundamental procedural requirement or legal provision to vitiate the same. Having regard to the constricted scope of interference, in the revisional jurisdiction of this Court under Section 115, I am of the view that no interference with the impugned judgment and order is called for. 16. The facts and circumstances of the case do not justify the exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India as well. 17. The petition therefore lacks in merit and, therefore, fails. 18. No costs. Petition dismissed.