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2009 DIGILAW 260 (JHR)

Sunil Kumar Tiwary v. Suraj Yadav

2009-02-18

D.N.PATEL

body2009
JUDGMENT 1.The present petitioners are the original plaintiffs of a Title Suit No. 342 of 1986, which was decreed in their favour, vide order dated 8th September, 1992. 2.It appears that thereafter a title appeal was preferred by the original defendants, which was dismissed. 3.It also appears that thereafter Second Appeal No. 133 of 1998 was instituted by the original defendants, which was also dismissed vide order dated 14th February, 2001. 4.It appears that mean while an Execution Case No. 19 of 1992 was preferred by the decree holder-original Plaintiffs-present petitioners. 5.During the pendency of the Execution Case No. 19 of 1992, the objector (respondent No. 7 herein) has filed Misc. Case No. 7 of 2007 under Order 21 Rule 97 of Code of Civil Procedure. 6.It appears that the area of the disputed land in the suit is approximately 49 decimals, whereas the objector filed her objections under Order 21 Rule 97 of C.P.C. through her Misc. Case No. 7 of 2007 for 3.5 decimals of land only. 7.It also appears that the Misc. Case No. 7 of 2007(preferred under Order 21 Rule 97 of C.P.C.) has been decided in favour of the objector i.e. the present respondent No. 7 vide order dated 2nd August, 2008. Thus, out of total 49 decimals of land, 3.5 decimals of land will be deducted. 8.It appears that as on today, no appeal has been preferred against the order passed in Misc. Case No. 7 of 2007 filed by the objector-present respondent No. 7 by the original plaintiffs. 9.It appears that in Execution Case No. 19 of 1992, one more application dated 4th April, 2008 was preferred, wherein it was prayed that the land for which an objection has been raised under Order 21 Rule 97 of C.P.C. may be separated out of total approximately 49 decimals of land and for remaining portion of the land which is not objected even by the original defendant nor by objector under Order 21 Rule 97 of C.P.C. and, therefore, writ of delivery of possession for remaining portion of the land ought to have been passed by the trial Court has not been appreciated while dismissing the application preferred by the decree holder-original plaintiff-present petitioners. The order passed by the trial Court is dated 28th April, 2008 (Annexure-3), whereby that application was dismissed. The order passed by the trial Court is dated 28th April, 2008 (Annexure-3), whereby that application was dismissed. 10.It appears from the arguments canvassed by the counsel for the petitioners as well as the respondent No. 7 that the original decree holders have no objection for approximately 3.5 decimals of land for which order has been passed on 2nd August, 2008 in Misc. Case No. 7 of 2007 to be retained by respondent No. 7 and even they have no objection in vacating the stay granted by this Court in I.A. No. 3099 of 2008 dated 27th January, 2009, so long as respondent No. 7 is not doing any construction in the remaining portion of land for which there is already a decree in favour of the present petitioners. 11.Counsel appearing for the respondent No. 7 (who has raised petition under Order 21 Rule 97 of C.P.C.) has also submitted that they have no concern with remaining portion of the land for which a decree has already been passed in favour of the present petitioners. Respondent No. 7 is not going to construct on the remaining portion of the land. 12.In view of these submissions and as the counsel for the petitioners submitted that 3.5 decimals of land for which a Misc. Case No. 7 of 2007 has been decided vide order dated 2nd August, 2008 may be separated and for remaining portion of the land, writ of delivery of possession may be passed by the trial Court, I hereby direct the Sub-Judge IV, at Ranchi to dispose of Execution Case No. 19 of 1992 and such other applications preferred therein by the decree holder, afresh, as expeditiously as possible practicable preferably within 3 months from the date of receipt of order of this Court, in accordance with law, keeping in mind the order passed in Misc. Case No. 7 of 2007 decided on 2nd August, 2008 and also keeping in mind the aforesaid observations. 13. In view of the aforesaid facts and reasons, I hereby vacate the stay granted by this Court in I.A. No. 3099 of 2008 vide order dated th January, 2009 and thereby permit the respondent No. 7 to construct upon the land for which there is order in their favour in Misc. 13. In view of the aforesaid facts and reasons, I hereby vacate the stay granted by this Court in I.A. No. 3099 of 2008 vide order dated th January, 2009 and thereby permit the respondent No. 7 to construct upon the land for which there is order in their favour in Misc. Case No. 7 of 2007, in accordance with law and as per the Building bye-laws and in accordance with such other regulations applicable to the construction in the land in question. This writ petition is disposed of in view of the aforesaid direction.