Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 1102 (PAT)

Indra Pratap Singh v. State of Bihar

2014-11-07

NAVANITI PRASAD SINGH

body2014
ORDER : ” Heard learned counsel for the petitioner and Mr. S. S. Dwivedi, learned counsel for the contesting respondents. 2. The petitioner had filed this writ petition for protection against the might of the State, which was playing at the hands of the private contesting respondents. He had filed the writ petition with a prayer to protect the person and property of the petitioner. In the reliefs claimed, it was also prayed that the judgment and decree of the Subordinate Judge, which was obtained against the dead person, be held to be a nullity. 3. Mr. S. S. Dwivedi, learned senior counsel appearing for the contesting respondents, while hearing the matter on earlier date, raised an issue that it were the contesting respondents, who were in possession and the petitioner was wrongly alleging that he was in possession. The question being a disputed one, the writ Court should not interfere. On that issue this Court had already ruled that the facts were not in dispute. 4. The contesting respondents had filed a suit for declaration of title and seeking eviction of the petitioner, which pre-supposes the possession of the petitioner. They had got a judgment and decree seeking petitioner” s eviction. Thus, to urge that the contesting respondents were in possession is, on the face of it, a wrong fact. 5. Today Mr. S. S. Dwivedi, learned senior counsel, takes yet another objection. He states that the writ petitioner for the same relief had filed a civil suit as sought in this writ petition and that being a suppression, the writ petition should be dismissed. 6. Learned counsel for the writ petitioner states that this fact is stated in the writ petition and, in fact, the said civil suit had long been withdrawn to pursue this writ petition. 7. In my view, it is not a material suppression, which would disentitle the petitioner to any relief by this Court on the authority of (2004) 7 SCC 166 : ( AIR 2004 SC 2421 ) (S. J. S. Business Enterprises (P) Ltd. v. State of Bihar). In that case under identical situation, the Apex Court held that it was not material becuse, inter alia, the discretion of the Court was discretionary. There also the writ petitioner, during the pendency of the writ petition, had withdrawn the suit. Thus, this objection of Mr. Dwivedi is also devoid of any substance. 8. In that case under identical situation, the Apex Court held that it was not material becuse, inter alia, the discretion of the Court was discretionary. There also the writ petitioner, during the pendency of the writ petition, had withdrawn the suit. Thus, this objection of Mr. Dwivedi is also devoid of any substance. 8. Learned counsel for the petitioner states that he had purchased certain property from late Dr. Harihar Chandra Ghose. He was in occupation thereof. Consequent to the purchase, there were disputes in the family and a suit had been filed by other family members. Late Dr. Harihar Chandra Ghose was a party. He died. The petitioner was not made a party to the suit nor Dr. Harihar Chandra Ghose was substituted. The judgment and decree was obtained, thus, against a dead person without substituting his heirs or legal representatives. The suit was, inter alia, for declaration of title of the plaintiffs and eviction of persons put in possession by Dr. Harihar Chandra Ghose. The suit was merely for eviction on the ground that the persons, who had been put in possession by Dr. Harihar Chandra Ghose, were mere licensees. The licence period had expired. The petitioners having purchased the property were put in possession of the same. As noticed earlier Dr. Harihar Chandra Ghose on his death was not substituted by heirs or legal representatives. A decree was obtained. The contesting respondents, instead of approaching the Civil Court for executing the decree, where the petitioner would have the right to object as the decree was a nullity being against a dead person, took help of the Police and with the help of the Policy, they tried to evict the petitioner. It is only upon intervention of the D.I.G. that the possession of the petitioner was maintained. It is apprehending this high-handed State” s involvement in dispossession of the petitioner otherwise than in accordance with the procedures established by law that this writ petition has been filed. 9. In my view so long as Art. 300-A of the Constitution exists, State cannot interfere and dispossess a person except in accordance with the procedure established by law. If the contesting respondents seek possession of the property, they have to follow the procedure in law. They have to seek the execution of the decree through process of the Civil Court. In my view so long as Art. 300-A of the Constitution exists, State cannot interfere and dispossess a person except in accordance with the procedure established by law. If the contesting respondents seek possession of the property, they have to follow the procedure in law. They have to seek the execution of the decree through process of the Civil Court. They cannot take law into their own hands and with Police help can evict the petitioner. Therefore, I am constrained to hold that no person or authority can interfere with the possession of the petitioner in respect of the property in dispute except after following due procedure as established by law. 10. This writ petition, with the aforesaid observation, direction and declaration is allowed. Petition allowed.