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2015 DIGILAW 39 (GAU)

Dhana Ranjan Mudoi v. Guna Mudoi

2015-01-20

HRISHIKESH ROY

body2015
JUDGMENT AND ORDER Heard Mr. P.C. Goswami, the learned Counsel for the petitioner, who was the defendant in the Title Suit No.59/2000. The O.Ps. are the legal heirs of the plaintiff Maheswar Mudoi who died and they are represented by the learned Counsel Mr. P.C. Dey. 2.1 The contesting parties in the Title Suit are brothers and the suit was filed in respect of family property inherited from Late Sonai Chand Mudoi (father of the plaintiff and the defendant). The predecessor was the absolute owner of land measuring 1 Bigha 1 Katha 3 Lechas in Uttar Guwahati Town under Silasundarighopa Mouza and he left behind three sons namely Haramohan, Maheswar and Dhananjoy Mudoi. 2.2 A partition suit for 1/3rd share of the predecessor’s land was filed by Maheswari Mudoi and the Addl. D.C., Kamrup by his order dated 2.11.1999 granted partition and consequently separate Patta No.727 and Dag No.1909 was issued to Maheswari Mudoi and his 1/3rd land measuring 2 Katha 1 Lecha was demarcated and this land was described as Scheduled-A land in the suit. 2.3 The defendant No.1 Dhananjoy Mudoi dispossessed the plaintiff from a portion of land on the Northern side of the Schedule-A land and this dispossessed land was described as Schedule-B land in the plaint. 2.4. In the Title Suit No.59/2000, the plaintiff Maheswar Mudoi claimed right, title, interest and confirmation of possession over the Schedule-A land and for recovery of possession of the Schedule-B land and for permanent injunction. 3. Before the original Court after considering the pleadings and the submission, the learned Civil Judge (Jr. Division) NO.1, Guwahati dismissed the suit on 2.4.2003 (Annexure-III) on the ground that the land described in Schedule-B is vague and therefore no decree can be passed. 4. The aggrieved plaintiff then filed the Title Appeal No.38/2003 and through the judgment dated 15.12.2004 (Annexure-IV), the suit was decreed by reversing the Trial Court’s judgment. The learned Civil Judge, Sr. Division No.2, Guwahati found that the plaintiff had given the boundaries of Schedule-A land and since it was further specified that the Schedule-B land is situated in the northern side of the Schedule-A land, the description of the land to be recovered was found to be adequate. The learned Civil Judge, Sr. Division No.2, Guwahati found that the plaintiff had given the boundaries of Schedule-A land and since it was further specified that the Schedule-B land is situated in the northern side of the Schedule-A land, the description of the land to be recovered was found to be adequate. On this basis, the suit was decreed by declaring that the plaintiff has right, title and interest over the Schedule-A land and he is entitled to recover possession of the Schedule-B land by evicting the defendant. 5. The decree-holder (plaintiff) then put the decree to execution in the Title Execution Case No.9/2005 but the writ issued by the Executing Court was returned by the Civil Nazir on 6.7.2005 (Annexure-VI) on the ground that when the Revenue officials visited the suit land, they failed to identify the land where the decree is to be executed. 6. But the report of the Civil Naziar was found to be vague and accordingly the Executing Court directed the Circle Officer to carry out proper measurement of the Schedule-A land and submit a fresh repot to facilitate execution. 7. The Circle Officer in his undated Commission Report in the Title Execution Case No.9/2005 reported that after measurement of the land on 12.10.2007 of Dag No.1909 by the Revenue Staff, 1 Katha 12 Lechas land with the dimension of 110 ft. (North), 110 ft. (South), 48 ft. (East), 36 ft. (West) was found. This area was found to be occupied by the decree-holder Smti. Guna Mudai and her dwelling house is located on this land. But as per the revenue record, 2 Katha 1 Lecha land is shown within Dag No. 1909 but after physical measurement, the area was found to be deficient by 9 Lecha and this deficient land on the northern side of Schedule-A land was found to be occupied by the judgment-debtor Dhananjoy Mudoi in the Commission report. 8. The Executing Court noted that the decree was affirmed by dismissal of the Second Appeal and C.O’s report to the effect recorded that the decree-holder is in possession of 1 Katha 12 Lecha land under Dag No.1909 was considered. 8. The Executing Court noted that the decree was affirmed by dismissal of the Second Appeal and C.O’s report to the effect recorded that the decree-holder is in possession of 1 Katha 12 Lecha land under Dag No.1909 was considered. But since the area of the Schedule-B land was found to be more than the Schedule-A land, for which the plaintiff’s title was declared, the recovery of possession was ordered from 9 Lechas of land on the northern side of Schedule-A land, which was in possession of the judgment-debtor Dhananjoy Mudoi. The Executing Court provided an opportunity to the judgment-debtor to cross-examine the Circle Officer but the Revenue Officer confirmed that Schedule-A land was deficient by 9 Lechas. Consequently writ was issued for recovery of 9 Lecha land on the northern side of Schedule-A, land from the possession of the judgment-debtor. 9. Representing the judgment-debtor (defendant) Mr. P.C. Goswami, the learned Counsel contends that since only partial re-possession of the Schedule-B land could be ordered by the Executing Court, the decree should not have been put to execution. Therefore he submits that the order passed by the Executing Court on 20.2.2009 should be interfered with by the Revisional Court. 10. However representing the plaintiff (decree-holder), Mr. P.C. Dey, the learned Counsel submits that the decree has attained finality through dismissal of the Second Appeal filed by the defendant and therefore recovery of possession of the decretal land from the judgment-debtor is contended to be in order. 11. In this case, the Executing Court took all steps to identify the decretal property after issuing a 2nd writ to the Revenue Officials and on the basis of the measurement taken at site, execution of the decree was ordered. Of Course, the land found available during field measurement was less than 2 Katha 1 Lecha (Schedule-A) claimed by the plaintiff and consequently recovery of lesser area than what was claimed (Schedule-B) could not granted to the decree-holder. If any party is to be aggrieved through such partial execution, it will be the decree-holder and judgment-debtor can’t really be the affected party. 12. That apart, the Executing Court took utmost care to ascertain and identify the suit property by issuing a 2nd writ to the Revenue Officials and only after field measurement was done and a Commission Report was considered, the recovery order was passed on 20.2.2009 by the Executing Court. 13. 12. That apart, the Executing Court took utmost care to ascertain and identify the suit property by issuing a 2nd writ to the Revenue Officials and only after field measurement was done and a Commission Report was considered, the recovery order was passed on 20.2.2009 by the Executing Court. 13. Considering the above, I find no infirmity with the impugned order dated 20.2.2009 in the Title Execution Case No.9/2005 and therefore this Revision petition of the judgment-debtor (defendant) is dismissed. However the parties are left to bear their own cost. 14. With the above order the case is disposed of.