Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 226 (JK)

Director Estates v. Ali Mohd. Lone

2013-04-17

JANAK RAJ KOTWAL

body2013
1. Heard and considered. 2. Record of the file also perused. 3. Admit. 4. Mr. G. R. Tantray, Advocate waives post admission notice on behalf of the respondents. With the consent of learned counsel for the parties, the matter is taken up for final disposal at this stage itself. 5. Subject-matter of the decree dated 28-06-2002, which is under execution before the Court of learned Sub-Registrar, Srinagar is a piece of land `measuring 13 marlas and 136 sft. comprised in Khasra Nos.1608, 1609, 1610, 1611,1612, and 1613 situated at Khonakhan, Dalgate, Srinagar. The decree has been passed by the Court of learned 4th Additional Munsiff, Srinagar and provides that the said "land is the propriety land of the plaintiffs and are entitled to its possession" and further the defendants are directed to hand over the possession of the said land to the plaintiffs. 6. Record reveals that the matter earlier also came before this Court in Civil Revision No.100/2008, directed against the order dated 17.06.2008, whereby the learned Executing Court had held that the decree in question was not executable and, therefore, dismissed the execution petition. In the said revision, this Court by order dated 01.12.2009, while disposing of the revision petition, had taken note of two conflicting reports as regard the spot position and observed as under:- "In view of the conflicting reports, the Executing Court should have directed the Collector to ascertain as to who is in actual possession of the decreed property on spot. Though earlier matter had been referred to the Collector, that order was set aside because the order contained a direction to the Collector to ascertain whether suit property belonged to the petitioner or not. That was an uncalled for direction because the petitioner was declared as owner pursuant to the decree. Same could not be permitted to be interfered with by Collector. It is qualified that the Collector when asked to do so has to confine his report to a limited question as to who is in actual possession of suit property on spot. His report will enable the Executing Court to hold as to whether decree is executable or in-executable and thereon shall pass appropriate orders as shall be warranted in accordance with Order 21 Rule 35 Code of Civil Procedure and other enabling provisions." 7. His report will enable the Executing Court to hold as to whether decree is executable or in-executable and thereon shall pass appropriate orders as shall be warranted in accordance with Order 21 Rule 35 Code of Civil Procedure and other enabling provisions." 7. Pursuant to the aforesaid order, the learned Executing Court by orders passed on 18.3.2011, 18.2.2012 and 2.7.2012 conveyed to the Collector (Dy. Commissioner, Srinagar) to look into the matter and furnish his report in light of the observation made by this Court. By the order dated 2.7.2012 (supra), the Executing Court conveyed to the Collector (Dy. Commissioner, Srinagar) clearly that he should visit the spot and report only to the extent that who is in actual possession of the property. In light of the orders passed by the Executing Court pursuant to the order dated 1.12.2009 passed by this Court the short assignment given to the Collector was to visit the spot and ascertain as to who is in actual possession of the decreed land specified above and make a report to the Executing Court. After obtaining such report, the learned Executing Court was required to hold as to whether the decree was executable or not and thereafter pass appropriate orders in accordance with Order 21 Rule 35 C.P.C. 8. As against this, the Addl. Dy. Commissioner, Srinagar vide his No.DCS/ARA/108/2012 dated 20.9.2012 has only forwarded to the Executing Court the report in this regard made by the Tehsildar, North, Srinagar vide No.1373/TNS/OQ dated 8.9.2012 to the Dy. Commissioner, Srinagar. The Tehsildar in his report has reported that "from the spot position, it becomes evident that the suit land measuring 13 marlas and 136 Sqfts bearing Survey Nos. 1608, 1609, 1610, 1611, 1612 and 1613 situated in revenue estate Barinambal, Srinagar locally known as Khona Khan, Dalgate is under and appurtenant to structures under the possession of Estates Department". However, in his communication to the Executing Court the Additional Deputy Commissioner, Srinagar summarized Tehsildar's report in the manner that the suit land "is and its appurtenant structures are under the possession of Estate Department". 9. On receipt of the communication from the Addl. Dy. However, in his communication to the Executing Court the Additional Deputy Commissioner, Srinagar summarized Tehsildar's report in the manner that the suit land "is and its appurtenant structures are under the possession of Estate Department". 9. On receipt of the communication from the Addl. Dy. Commissioner, Srinagar accompanied with the report of the Tehsildar, the learned Executing Court by its order dated 24.9.2012 promptly but, apparently without application of mind, directed the Tehsildar, North, to execute the decree dated 28.6.2002 after perusal of the report furnished by the Addl. Dy. Commissioner without any delay and consigned the file to the records. 10. The judgment-debtors have impugned the order dated 24.09.2012 passed by the learned Executing Court in this revision petition. The order has been challenged inter alia and mainly on the ground that the learned Executing Court has passed the order in a routine manner without providing an opportunity of hearing to the petitioners/judgment-debtors after receiving the report of the Tehsildar and thereby failed to exercise its jurisdiction properly. 11. After having heard both sides and considered the matter, firstly, I am persuaded to observe that after receiving communication accompanied with Tehsildar's report from Addl. Dy. Commissioner, the learned Executing Court has acted bit in haste inasmuch as, what order in terms of Order-21 Rule-35 should have followed has not been considered. 12. However, what is being observed with concern is that it was not without reason that this Court while passing order dated 1.12.2009 had suggested that the Collector should ascertain as to who was in actual possession of the decreed property. Had this Court not been carful in this regard, either the Collector could have been asked to get this fact ascertained through his field staff or the Executing Court could have been directed to approach the concerned Tehsildar or Naib Tehsildar or any other field officer for the purpose. This was in the back drop of the fact that earlier two conflicting reports were received. Equally concerning, it is to note that the learned Executing Court on receiving report of the Tehsildar through the Addl. Dy. Commissioner, Srinagar, by the impugned order, directed the Tehsildar to execute the decree in light of the report of the Collector without recording a finding as to whether the decree was now executable or not and, if executable, what order under Order 21, Rule 35 should follow. 13. Dy. Commissioner, Srinagar, by the impugned order, directed the Tehsildar to execute the decree in light of the report of the Collector without recording a finding as to whether the decree was now executable or not and, if executable, what order under Order 21, Rule 35 should follow. 13. For the aforementioned reasons, neither the report prepared by the Tehsildar and forwarded to the Executing Court by the Dy. Commissioner, Srinagar can be accepted nor the order passed by the learned Executing Court can sustain. 14. Viewed, thus, the instant petition is disposed of with a direction to the Collector (Dy. Commissioner/ Addl. Dy. Commissioner, Srinagar) to inspect the spot personally after giving prior notice to the parties and to verify the report dated 8-9-2012 (supra) prepared by the Tehsildar, North and furnish his own report to the Executing Court showing clearly as to who is in actual possession of the suit land on spot. This be done within a period of two months after receipt of a copy of the order. On receiving the report of the Collector, the learned Executing Court shall proceed in the matter in light of the order dated 1.12.2009 passed by this Court. Consequently the impugned order is set aside. 15. Record be remitted back to the Executing Court forthwith alongwith copy of this order. 16. Registry to provide another copy of this order to the learned Executing Court for its onward transmission to the Collector, Deputy Commissioner/Additional Deputy Commissioner, Srinagar).