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2012 DIGILAW 569 (PAT)

Kishor Pandey v. State of Bihar

2012-04-05

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT A.K. Trivedi, J.-Instant petition by way of criminal writ has been filed with a prayer for commanding the respondents to provide protection to the petitioner in cultivating of his land lying at village-Mathia, P.S. Anchal-Turkaulia, District-East Champaran, directing the respondents not to interfere with the possession of the petitioner over the aforesaid land by initiating frivolous proceeding, any other relief or reliefs so entitled for and for that pleaded that R.S.P. No. 792 appertaining to khata No. 2 total Area 92.20 acre lying at village Turkaulia, tola Mathia P.S.-Turkaulia, District-East Champaran happens to be recorded in the name of Pandit Ugam Pandey, original raiyat who had a son Arun Prakash, father of petitioner. In due course of time Arun Prakash borrowed loan of Rs.68,000/- from S.B.I. and executed mortgage deed in favour of S.B.I. However, as the aforesaid Arun Prakash defaulted in making payment consequent thereupon State Bank of India had filed Mortgage Suit No. 88/9 of 1987/80 which was decreed followed with Execution Case No. 65 of 1987 whereunder 30 acres out of total area 92.20 acre of R.S.P. No. 792 was put under auction and the same was purchased by O.P. No.6. Ramchandra Singh on 07.06.1988. It is needless to detail all intermediary events whereunder parties have time without number contested up to the Hon’ble Apex Court. However, for the present Execution Case No. 65 of 1987 has revived as per direction of the Hon’ble High Court passed in Civil Revision No. 24 of 1995 (Annexure-9) of the supplementary affidavit filed on behalf of respondent No.6. Both the parties have admitted the events so persisting and continuing. 2. It has been submitted on behalf of the petitioners that Mortgage Suit No. 88/9 of 1987/80 had proceeded only to the extent of 10 aana share relating to the disputed land while 6 aana thereof was excluded falling under share of sisters Sabitri Devi and others who also filed objection and later on challenged events of Execution Case No. 65 of 1987 on the ground that without having specific demarcation of land to the extent of their share, auction happens to be bad which was negatived by the Executing Court against which Civil Revision No. 17 of 1990 was filed before the High Court and the same was allowed vide judgment dated 21.05.1992 (Annexure-I). The auction purchaser filed S.L.P. (Civil) No. 8199 of 1992 which was dismissed as withdrawn vide order dated 25.06.1992 while S.L.P. (Civil) No. 10800 of 1992 filed on behalf of State Bank of India (decree-holder) was dismissed on 29.03.1993). Because of the fact that the aforesaid auction was set aside, therefore respondent No. 6 was no more over land contrary to it, petitioner took over possession over the land on 21.05.1992. Meanwhile, against the judgment and decree passed in Mortgage Suit No. 88/9 of 1987/80 first appeal was filed before the High Court bearing No. 450 of 1981 and the same was disposed of with a direction to deposit the decretal amount in two equal instalment vide judgment dated 22.05.1998 and in compliance thereof, petitioner had already deposited the amount. Therefore, the decree stands saturated. Respondent No.6 filed Civil Review No. 255 of 1998 and the same was dismissed. Even thereafter, the respondent No. 6 continued the litigation by filing so many frivolous petitions before the High Court as well as before the Hon’ble Apex Court. So submitted that in spite of having litigation continuing at the behest of respondent No. 6 who continued it with false and frivolous allegations, disclosure, plea, the land continued under his possession since 21.05.1992 and further in the background of the fact that decretal amount had already been paid, now the respondent No.6 should be restrained from interfering with the peaceful physical possession of petitioner as well as also be prohibited from launching of false and frivolous litigation taking the Government officials in their collusion. 3. At the other hand learned counsel for the respondent No.6 have submitted that so far events of the litigation is concerned, the same is still going on. Then submitted that question of retaining possession over 30 acres of disputed land by the petitioner is an imaginary statement of the petitioner without supported with any kind of judicial verdict contrary to it respondent No. 6 had purchased the aforesaid land under auction sale on 07.06.1988 and was given delivery of possession through the process of the Court. Whether the decretal amount has been paid by the petitioner or whether the judgment and decree of mortgage suit was set aside is not going to favour the petitioner in the background of the fact that respondent No.6 was never dispossessed by due process of law. Whether the decretal amount has been paid by the petitioner or whether the judgment and decree of mortgage suit was set aside is not going to favour the petitioner in the background of the fact that respondent No.6 was never dispossessed by due process of law. Though the petitioner had averred that he had taken possession over the land on 21.05.1992 but there is no supporting evidence to the plea of the petitioner. As such, legally possession of petitioner still continue and recognized in the eye of law and in the aforesaid background, the prayer of the petitioner is not at all maintainable. 4. The learned A.C. to G.A.-8 has strenuously opposed prayer of the petitioner on non-pleading of State Bank of India as one of the respondent. Also submitted that for want of non-pleading of State Bank of India as one of the O.P., petitioner has virtually prevented the truth which could have surfaced at the end of State Bank of India because of the fact that it was decree-holder and at which behest Execution Case No. 65 of 1987 was initiated wherein 30 acres of land was put on auction which the respondent, No. 6 had purchased on 07.06.1988. So submitted that instant petition happens to be non-maintainable in the aforesaid background. 5. Both the parties have admitted that as per order dated 23rd April, 1997 passed by the High Court in Civil Revision No. 24 of 1995 Execution Case No. 65, of 1987 revived. For better appreciation, it looks desirable to incorporate para-8 thereof: "For the reasons stated above, I set aside the impugned order dated 19-12-1994 passed in Execution Case No. 65 of 1987/17 of 1991. The matter is remitted to the Court below to give effect the matter relating to delivery of possession and other allied prayers as made in the said petition, even if it is to be given symbolically". 6. The Writ Court cannot prick and decide the controversial issue, more so, when the matter happens to be subjudiced before the competent civil Court. As discussed above, para-8 of the order passed in Civil Revision No. 24 of 1995 gives a clear cut impression that the matter of delivery of possession still hinges. Consequent thereupon, the instant petition is found to be devoid of merit and is accordingly dismissed. As discussed above, para-8 of the order passed in Civil Revision No. 24 of 1995 gives a clear cut impression that the matter of delivery of possession still hinges. Consequent thereupon, the instant petition is found to be devoid of merit and is accordingly dismissed. However in the facts and circumstances of the case, parties will bear their own costs.