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Madhya Pradesh High Court · body

2016 DIGILAW 248 (MP)

Bhupat Patel v. State of M. P.

2016-03-22

C.V.SIRPURKAR

body2016
ORDER 1. This civil revision is directed against order dated 11.12.2015 passed by the Court of VIII Civil Judge, Class II, Jabalpur, in Execution Case No.322-A/1994, whereby the application under Order 21 rule 101 of the Code of Civil Procedure dated 14.5.2015 filed on behalf of the defendants/judgment debtors was dismissed. 2. The fact necessary for disposal of this civil revision may be summarized as hereunder: Plaintiff/decree holder, who is respondent in this civil revision, filed a civil suit in the Court of Civil Judge, Class II, Jabalpur, for vacant possession of suit land and mandatory injunction against the defendant/petitioner. The suit was dismissed by the Civil Judge and the lower appellate Court; however, the High Court, by its judgment dated 13.4.2012 passed in Second Appeal No.857/1995, set the judgments passed by the trial Court and the lower appellate Court aside and decreed the claim of the plaintiff with costs. Subsequently, the plaintiff filed an application for execution of aforesaid judgment and decree. 3. During the course of the execution proceedings, the petitioner/judgment debtor filed an application under Order XXI read with section 101 of the Code of Civil Procedure submitting that the map filed along with plaint does not reflect the real location of the plot of land in dispute. The map has not been prepared by any authorized person and is not drawn to scale. For want of land marks and proper description, it would not be possible to identify the alleged encroachment made by the judgment debtor/petitioner. For want of proper identification of the land in dispute, the decree is not executable; therefore, it was prayed that the Competent Revenue Authorities be directed to conduct the demarcation proceedings and prepare a proper map of the disputed piece of land. In support of aforesaid contention, learned counsel for the petitioner invited attention of the trial Court to the judgment rendered by the Supreme Court in the case of Pratibha Singh and another v. Shanti Devi Prasad and another [ AIR 2003 SC 643 ], wherein it has been held that exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree, within the meaning of section 47 of the CPC. 4. 4. The executing Court dismissed the aforesaid application holding that the application does not fall within the purview of Order 21 rule 101 of the Code of Civil Procedure. It does not fall within the ambit of Order 21 rule 99 either. It was further held that the plaint and the accompanying map contains sufficient description of the property in order to identify the same and evict the judgment debtor from the encroached land; therefore, the application was dismissed. 5. During the course of arguments before this Court, learned counsel for the petitioner judgment debtor has conceded that the application dated 14.5.2015 does not fall within the ambit of either rule 101 or the rule 99 of Order 21 of the CPC He submits that the application ought to have been considered within the purview of section 151 of the CPC; however, even if the application dated 14.5.2015 is considered within the purview of section 151 of the CPC, a perusal of the plaint reveals that the plot of land in question has been described in paragraph No.1 of the plaint as falling in the agricultural land of the plaintiff in the village Karmeta, Settlement No.497, Patwari Circle No.26, Survey No.484/1 ad-measuring 0.069 hectare in Tahsil and District Jabalpur. It has further been pleaded in paragraph No.3 of the plaint that aforesaid land was diverted for non-agricultural purpose by order dated 20.9.1989 and after diversion of the suit land, it is shown in the Nazul sheet No.2 as plot number 69 ad-measuring 7420 sq.ft. It has also been averred in the plaint (Paragraph No.10) that the defendant constructed a Pucca house upon aforesaid land ad-measuring 10×10 sq.ft.; whereon, a tailoring shop (Om Tailors) has been opened. It has further been contended that the land adjoining aforesaid pucca house ad-measuring 20×20 sq. ft., has been encroached upon by means of barbed wire, by the defendant. In the prayer clause, aforesaid description of the suit land has been given and it has been prayed that a decree of possession in favour of plaintiff against defendants No.1 and 2 as per plaint map, be passed. The plaint map clearly shows the encroachment made upon the land ad-measuring 10×10 ft. by construction of shop in the name and style of Om Tailor as well as the encroachment by means of iron wire ad-measuring 20×20 ft. The plaint map clearly shows the encroachment made upon the land ad-measuring 10×10 ft. by construction of shop in the name and style of Om Tailor as well as the encroachment by means of iron wire ad-measuring 20×20 ft. Thus, it is clear that the suit land has been sufficiently well described in the plaint and the accompanying map in order to identify the same accurately. It is not requirement of any law that the map accompanying the plaint should be drawn to scale or should be prepared by some authorized person. All that is required is that the pleadings and the accompanying map should describe the land in such a manner that there is no doubt as to the location and measurement of the suit land. 6. In the instant case, aforesaid requirement is fulfilled. Thus, for the present, there is no need to direct any demarcation proceedings to be conducted for accurate identification of the suit land; however, if during the further course of execution proceedings, any such need is felt, the Executing Court shall be free to take recourse to such proceedings in accordance with the principles laid down by the Supreme Court in the case of Pratibha Singh and another v. Shanti Devi Prasad and another [ AIR 2003 SC 643 ], so as to ensure that the decree passed in favour of the plaintiff is not defeated. 7. In aforesaid circumstances, in the opinion of this Court, the impugned order does not suffer from any jurisdictional error, warranting interference by the High Court. 8. Consequently, this civil revision is dismissed in limine.