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2015 DIGILAW 161 (ORI)

Sabita Sahu v. Anil Kumar Sahu

2015-03-04

SANJU PANDA

body2015
JUDGMENT : Sanju Panda, J. 1. W.P. (C) No. 16894 of 2009 has been filed by the Petitioner with a prayer to direct the Superintendent of Police, Angul Opp. Party No. 5 to render police help to assist in delivery of possession of suit property in respect of T.S. No. 12 of 1989 of the Court of Learned Civil Judge (Junior Division), Pallahara to the Petitioner within a stipulated time. Similarly C.M.P. No. 770 of 2014 has been filed by the Petitioners challenging the Order Dated 21.12.2013 passed by the Learned Addl. Civil Judge (Junior Division), Pallahara, Angul in I.A. No. 3 of 2010 arising out of Execution Case No. 1 of 1994 corresponding to T.S. No. 12 of 1989 rejecting an application filed under Sections 47, 144 & 151 of C.P.C. As both the petitions involve common questions, parties are same & the dispute arises out of a suit, the matters are taken up for hearing together & are disposed of by this common Judgment. 2. The brief facts of the case are that one Sabita Sahu (Opp. Party No. 1 in C.M.P. No. 770 of 2014 & Petitioner in W.P. (C) No. 16894 of 2009) as Plaintiff filed T.S. No. 12 of 1989 before the Learned Civil Judge (Junior Division), Pallahara for declaration of right, title & interest in respect of Plot No. 340 under Khata No. 26 measuring an area of Ac. 0.15 decimals out of the total area of Ac. 2.20 decimals, for delivery of possession, for mandatory injunction to demolish the construction made over the suit land & for cost of the land. The Court below by Judgment & decree dated 08.12.1992 & 04.1.1993 respectively dismissed the suit. While dismissing the suit, the Court below categorically held that one Kamal Kumari Pal was the original owner & both the Judgment Debtors & Decree Holder have acquired/derived title in respect of parcels of land from the said original owner. The Plaintiff-decree holder could not establish that she has got delivery of possession of the land purchased by her from the original owner & that she was unable to identify the land which was said to be purchased by her. 2.1. Being aggrieved the Plaintiff preferred T.A. No. 2 of 1993 in the Court of Learned Civil Judge (Senior Division), Talcher. 2.1. Being aggrieved the Plaintiff preferred T.A. No. 2 of 1993 in the Court of Learned Civil Judge (Senior Division), Talcher. The lower Appellate Court by Judgment dated 05.2.1994 allowed the appeal with a direction to the Judgment Debtors to deliver possession back to the Decree Holder demolishing the structures over it within three months from the date of the order failing which the Decree Holder shall be at liberty to move the Court for appropriate orders in this regard. 2.2. Challenging the said Judgment, the Judgment Debtors preferred Second Appeal No. 126 of 1994 before this Court, which was dismissed. Thereafter the Plaintiff instead of approaching the lower Appellate Court filed Execution Case No. 1 of 1994 for delivery of possession. The Judgment Debtors filed Misc. Case No. 1 of 1995 under Section 47 of C.P.C. challenging maintainability of the execution case, which was rejected by Order Dated 22.4.1996. The said order was challenged in Civil Revision No. 6/96/9/97 in the Court of the Learned Addl. District Judge, Angul, which was also rejected on 18.2.1998. The Plaintiff filed an application to depute an Alliin Commissioner in the execution case, which was allowed. The Judgment Debtors field an application for stay of the demarcation, which was rejected. Thereafter OJC No. 15545 of 2001 was filed before this Court, which was also dismissed on 10.12.2001. The Judgment Debtors filed T.S. No. 45 of 2003 for declaration that the decree passed in T.S. No. 12 of 1989 is not binding on them. An application for appointment of Survey knowing Commissioner in the said, suit having been dismissed, the Judgment Debtors approached this Court in W.P. (C) No. 14056 of 2003, which was disposed of on 14.10.2004 giving liberty to the Judgment Debtors to examine their own Survey knowing Commissioner in consonance with law & produce the report before the Court which shall be considered strictly in consonance with law. In the said Writ Petition the Judgment Debtors also made a prayer to stay further proceeding of the, execution case & this Court granted liberty to them to file such a petition before the competent Court. Thereafter the Judgment Debtors filed an application before the executing Court to stay further proceeding of the execution case. The said application having been rejected they again approached this Court in W.P. (C) No. 10284 of 2005, which was also dismissed. Thereafter the Judgment Debtors filed an application before the executing Court to stay further proceeding of the execution case. The said application having been rejected they again approached this Court in W.P. (C) No. 10284 of 2005, which was also dismissed. Challenging the said order they preferred W.A. No. 9 of 2006 & this Court disposed of the said appeal granting liberty to them to file an application before the appropriate forum. 2.3. The Judgment Debtors filed an application under Section 47 of C.P.C. before the executing Court inter alia taking the stand that the execution case is not maintainable as the decree is not executable & the identity of the land is not known. The land is required to be demarcated properly for the purpose of delivery of possession to the Decree Holder in the event it is found that the decree is executable. An Amin Commissioner be deputed for demarcation of the land & delivery be given through process of Court. The Court below by Order. Dated 08.4.2010 rejected the said application. 2.4. While matter stood thus the Judgment Debtors filed an application under Sections47, 144 & 151 of C.P.C. to deliver back the plot belonging to them which was wrongly taken delivery of possession & to direct the Plaintiff to return all the movables taken away forcibly, reimburse the value of the loss sustained by the Judgment Debtors for the illegal demolition of their structures. The said application was registered as I.A. No. 3 of 2010. The Decree Holder filed her objection to the said application stating that the decree for recovery of possession of the vacant suit land, after demolishing the standing structure thereupon was duly executed in proper & lawful manner. It was executed by the Court & delivery of possession was given to the Decree Holder by the Court. The Process Server & the Amin Commissioner through whom the execution of the decree was processed were only agents of the Court. 2.5. The Court below after hearing the parties came to the conclusion that the Judgment Debtors having suppressed the sketch maps by removing them from Sale Deeds, failed to prove that the land given possession in execution was their land. 2.5. The Court below after hearing the parties came to the conclusion that the Judgment Debtors having suppressed the sketch maps by removing them from Sale Deeds, failed to prove that the land given possession in execution was their land. They have also failed to prove that the land was wrongly given possession, therefore they have no locus standi to complain as to whether the measurement made by the Amin was correct or not. There is no pleading in the petition that Amin's measurement was wrong. Accordingly, the Court below by the impugned order rejected the application. 3. So far as W.P. (C) No. 16894 of 2009 is concerned, this Court by Order Dated 11.2.2010 directed the Addl. Superintendent of Police, Angul who was in-charge of Superintendent of Police, Angul to appear before the Learned Addl. Civil Judge (Junior Division), Palahara on 23.2.2010 on which date the executing Court will fix a date for providing police protection to the decree holder & the Amin Commissioner who is going to execute the writ of delivery of possession of the disputed land to the decree holder in Execution Case No. 1 of 1994. In pursuance of the said order the Learned Addl. Civil Judge (Junior Division), Pallahara vide letter dated 23.4.2010 intimated this Court that the writ of delivery of possession in Execution Case No. 1 of 1994 has been executed on 21.4.2010. The process server of the Court below with the help of Amin Commissioner & police gave delivery of possession of the suit land to D. Hr Smt. Sabita Sahu & submitted the report. In view of the above, W.P. (C) No. 16894 of 2009 has become infructuous. 4. Learned Counsel appearing for the Judgment Debtors submitted that the evidence led by the Decree Holder, Process Server & the Amin Commissioner clearly establish that they have neither noticed the Judgment Debtors nor demarcated the land & without any basis delivered possession of the wrong property which is not included in the decree. He further submitted that the Decree Holder did not examine any witness on her behalf to establish the fact that she has taken delivery of possession of the decreetal property. Hence the impugned order need be interfered with. In support of his contention he has relied on the decisions reported in 70 (1990) CLT 396, 56 (1983) CLT 152 & 1986 (II) OLR 69. 5. Hence the impugned order need be interfered with. In support of his contention he has relied on the decisions reported in 70 (1990) CLT 396, 56 (1983) CLT 152 & 1986 (II) OLR 69. 5. Learned Counsel appearing for the Decree Holder however, supported the impugned order & submitted that after demolition of the standing structure in the suit land, the decree was executed in proper & lawful manner. The decree was executed by the Court & delivery of possession was also given by the Court to the Decree Holder. Hence the impugned order need not be interfered with. 5.1. This Court in the case of Kairu @ Kai Kisan & Anr. Vs. Smt. Munki Kisani & Ors. reported in 70 (1990) CLT 396 held that if there was in fact no delivery of possession effective, complete or legal, the decree is not satisfied, whatever the decree holder may say to the contrary. 5.2. Further this Court in the case of Kantaru Sahu & Ors. Vs. Dharma Sahu & Anr. reported in 56 (1983) CLT 152 held that the Commissioner's report, even though it is not challenged by any of the parties, is not binding on the Court. When parties file no objection to the Commissioner's report, the Court rightly accepts the report; but acceptance by itself does not preclude the parties from challenging the same by cross examining the Commissioner at the trial or by examining witnesses & providing documents to nullify the effect of the Commissioner's report or to place materials from the report itself to prove that the same cannot be relied upon. 5.3. In the case of Chaitan Das Vs. Smt. Purnabasi Pattnayak & Ors. reported in 1986 (II) OLR 69 this Court held that it is the duty of the Court to direct that the parties to the suit shall appear before the Survey knowing Commissioner in person or by their agents or pleaders at the time of local investigation. In the absence of notice by the Court, notice issued by the Commissioner to the parties shall be deemed to be sufficient compliance. If no notice is served on any of the parties to the suit to appear before the Survey knowing Commissioner at the time of local investigation, the result of such local investigation, namely, the report & the map, cannot be accepted as evidence. If no notice is served on any of the parties to the suit to appear before the Survey knowing Commissioner at the time of local investigation, the result of such local investigation, namely, the report & the map, cannot be accepted as evidence. Considering the rival submission of the parties & after going through the materials available on record, it appears that earlier this Court by Order Dated 14.10.2004 passed in W.P. (C) No. 14056 of 2003 given liberty to the Judgment Debtors to examine their own Survey knowing Commissioner & produce the report before the Court below regarding non delivery of possession of the decreetal properties & erroneous delivery of the land to the decree holder by the Civil Court Commissioner deputed earlier which is not included in the decreetal property. Hence, it is open to the Judgment Debtors to file an application before the executing Court, in such event, the said Court shall consider the same in compliance of the earlier Order Dated 14.10.2004 passed by this Court in W.P. (C) No. 14056 of 2003. The executing Court for the interest of justice & fair play shall enquire into the matter & see that no person shall suffer for any mistake of the Court & also ensure that the decree is to be fully satisfied. With the aforesaid observation both the Petitions along with Misc. Cases are accordingly disposed of.