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2017 DIGILAW 1368 (GAU)

Kabel Uddin (Md. ) v. Bhanu Nessa

2017-10-25

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. N.N. Karmakar, learned counsel for the petitioners. This application under Article 227 of the Constitution of India is filed praying for setting aside the order dated 07.04.2017 passed by the learned Munsiff No. 2, Barpeta in Misc. (J) Case No. 9/2016 along with a prayer to hold that the decree dated 17.5.04 passed by the learned Munsiff No. 2, Barpeta in Title Suit No. 85/2003 is a nullity and, therefore, not executable. The order dated 7.4.2017 was passed on a petition filed by the present petitioners under Section 47 of the CPC. 2. The learned executing Court construed the petition to be a frivolous petition and dismissed the same with a cost of Rs. 5,000/- (Rupees Five Thousand). 3. The present petitioner Nos. 1 to 7 are the sons of one Mozibar Rahman and the petitioner No. 8 is the wife of Mozibar Rahman. 4. The respondent had filed a suit against the predecessor-in-interest of the petitioners and some others (copy of the plaint is not annexed), which was registered as Title Suit No. 85/2003. From the judgment of the learned trial Court dated 17.05.2004, which is annexed as Annexure-1, it appears that the suit was filed for declaration of right, title and interest and for recovery of khas possession in respect of 'A' and 'B' schedule land; for cancellation of mutation dated 24.06.1976 in favour of the defendant; for a declaration that a deed being Deed No. 5850 dated 28.9.67 is forged and illegal; for issuing a precept to the revenue authority for mutation of the name of the plaintiff over the suit land as well as for permanent injunction. The suit was contested and was finally decreed by the aforesaid judgment dated 17.05.2004. 5. It appears from the impugned order dated 07.04.2017 that the matter finally reached this Court in a second appeal registered as RSA No. 13/2006. During the course of the argument, Mr. Karmakar had handed over a copy of the judgment dated 28.9.2015 passed in RSA No. 13/2006. 6. A perusal of the said judgment goes to show that Mozibar Rahman, i.e. the predecessor-in-interest of the present petitioners, was the appellant and that the appeal was dismissed. 7. Referring to Paragraph 6 of the petition under Section 47 of the CPC, Mr. Karmakar had handed over a copy of the judgment dated 28.9.2015 passed in RSA No. 13/2006. 6. A perusal of the said judgment goes to show that Mozibar Rahman, i.e. the predecessor-in-interest of the present petitioners, was the appellant and that the appeal was dismissed. 7. Referring to Paragraph 6 of the petition under Section 47 of the CPC, Mr. Karmakar has submitted that because of the grounds stated therein, the decree passed in Title Suit No. 85/2003 is a nullity and, therefore, not executable. 8. At the very outset, it will be appropriate to extract herein below the grounds of objection in the said petition under Section 47 of the CPC at Paragraph 6:- "6. That the petitioners beg to submit that the judgment and decree dated 17.05.2004 (Annexure-1) passed by this Hon'ble Court in T.S. No. 85/2003 is a nullity and this decree dated 17.05.2004 is not executable on the following grounds of objection:- (i) Because it is evident from judgment and decree dated 17.05.2004 (Annexure-2) passed in T.S. No. 85/2003 that the respondent has not sued upon any document of title but has sued upon revenue records which are not documents of title. The respondent's title to lands described in schedules A and B of the said decree has been declared on interpretation of revenue records. So, the decree is not passed on law. Supreme Court has held in a case reported in AIR 1989 SC 1809 (Corporation of the City Bangalore v. M. Pappiah), 'revenue records are not documents of little, and interpretation of a document not being a document of title is not a question of law'. (ii) Because it is evident from judgment and decree dated 17.05.2004 (Annexure-1) passed in T.S. No. 85/2003 that this Hon'ble Court has cancelled the mutation order dated 24.06.76 passed by the SDC, Kalgachia Revenue Circle in favour of the predecessor of the petitioners in connection with lands described in schedules A and B of the decree. In this context, it is submitted that mutation order dated 24.06.76 is not an instrument (i.e., deed). So, Civil Court is not authorized to cancel such mutation order by exercising its powers given by Section 31 of the Specific Relief Act, 1963. In this context, it is submitted that mutation order dated 24.06.76 is not an instrument (i.e., deed). So, Civil Court is not authorized to cancel such mutation order by exercising its powers given by Section 31 of the Specific Relief Act, 1963. The settled laid down in the Assam Land and Revenue Regulation, 1886 directs the aggrieved party to prefer appeal to the D.C. concerned against such mutation order of SDC and, if fails, men to the Board of Revenue, Assam. (iii) Because the respondent being failed to establish her title to lands described in schedules A and B of the decree dated 17.05.2004 for the ground set forth in para (i) above, she has no locus standi to seek cancellation of the so-called registered gift-deed No. 5850 dated 28.9.67 shown in connection with said lands. Moreover, value of the gift-deed is not stated separately and court-fee as ad-valorem on such value is not separately paid in the plaint. So, this Hon'ble Court has passed the decree of cancellation of gift-deed violating the provisions of law laid down in the Suits Valuation Act and Court-Fees Act. This Hon'ble Court, on the other hand, has held, 'Thus, this Court is bound to presume that the said gift deed No. 5850 dated 28.9.67 is illegal and inoperative in the eye of law.' Law of presumption laid down in the Indian Evidence Act, 1872 does not authorize a civil Court to cancel a registered instrument on presumption. This Hon'ble Court, on the other hand, has held, 'Thus, this Court is bound to presume that the said gift deed No. 5850 dated 28.9.67 is illegal and inoperative in the eye of law.' Law of presumption laid down in the Indian Evidence Act, 1872 does not authorize a civil Court to cancel a registered instrument on presumption. (iv) Because it appears from judgment and decree dated 17.05.2004 (Annexure-1) passed in T.S. No. 85/2003 that this Hon'ble Court has held that the respondent has established her dispossession from land described in schedule B but has failed to establish her dispossession from land described in schedule A and as such, this Hon'ble Court has passed decree that the plaintiff/respondent is entitled to recover possession of land described in schedule B and that the plaintiff is still possessing the land described in schedule A. On the other hand, it is evident from plaint and evidence that she has failed to prove her previous possession in properties described in schedules C below which includes land described in schedule A of the decree and properties described in schedule D below which includes land described in schedule B of the decree for the following materials derived from records of T.S. No. 85/2003:- (a) Because para 3 of original plaint simply states, 'the defendant suddenly dispossessed the plaintiff from A and B schedule lands on 2.9.98'. Amended plaint does not state this but para 4 of amended plaint states, 'cause of action for the suit arose on 2.9.98 the date of dispossession of plaintiff from A and B schedules land.' Neither the original nor the amended plaint states the commission of any forcible fact/act by which the defendant compelled the plaintiff to given up the two plots of land including houses and other immovable properties standing in the land she occupied. (b) Because it is evident from evidence that 20.10.2001 of the plaintiff regarding dispossession that the defendant dispossessed the plaintiff from her residence of Barbhita village and from her land of Soulmari village. In cross, she states that she was dispossessed 2/3 years ago. PW 2, in his evidence dated 7.12.2001, states that the defendants dispossessed the plaintiff about 4 years ago. PW 3, in his evidence dated 7.12.2001, states that Bhanu had residence at Soulmari land. Defendant dispossessed Bhanu 4 years ago. Mozibar has not occupied the plaintiff's land of Soulmari village. In cross, she states that she was dispossessed 2/3 years ago. PW 2, in his evidence dated 7.12.2001, states that the defendants dispossessed the plaintiff about 4 years ago. PW 3, in his evidence dated 7.12.2001, states that Bhanu had residence at Soulmari land. Defendant dispossessed Bhanu 4 years ago. Mozibar has not occupied the plaintiff's land of Soulmari village. According to law laid down in Section 60 of the Indian Evidence Act, 1872, the plaintiff's statement, 'the defendant suddenly dispossessed the plaintiff from A and B schedule lands on 2.9.98.' refers to a fact which could be seen and to prove this fact there must be the evidence of a witness who says he saw it. None of the witnesses, i.e. PW 2 and PW 3, in evidence, has said he saw the defendant dispossessed the plaintiff from A and B schedule lands on 2.9.98. So, she has failed to prove her previous possession and wrongful dispossession in order to get back possession of lands described in A and B schedules. Notwithstanding, this Hon'ble Court has passed the judgment and decree (Annexure-1) for recovery of possession of land described in schedule B of the decree and has held, 'the plaintiff is still possessing the schedule A land and was never dispossessed by the defendant from the schedule A land." 9. Section 47 of the CPC reads as follows:- "47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court. Explanation I: For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation I: For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II: (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section." 10. A perusal of Section 47 CPC goes to show that all questions relating to execution, discharge and satisfaction of the decree arising between the parties shall be decided by the executing Court. While the executing Court cannot go behind the decree, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity can be raised in an execution proceeding provided the objection appears on the face of the record. If a decree is passed by a Court usurping a jurisdiction which it did not have, the same is a nullity. However, a mere wrong exercise of jurisdiction does not result in nullity. Nullity of a decree and irregularity in a decree are not one and the same thing. There is a distinction between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is illegal or irregular in the sense that the same was not passed in accordance with provisions of law. A decree suffering from illegality or irregularity of procedure is not a nullity and, therefore, cannot be construed to be inexecutable by the executing Court. An erroneous decision cannot be objected to in an execution or a collateral proceeding. 11. A perusal of the grounds cited shows that no plea of the decree being passed without jurisdiction had been raised. What were raised are questions on the merits of the case, touching upon alleged irregularities and illegalities in the decree. Questions of law and facts, which had been raised or could have been raised during trial, appeal or revision cannot be reopened in an execution proceeding. What were raised are questions on the merits of the case, touching upon alleged irregularities and illegalities in the decree. Questions of law and facts, which had been raised or could have been raised during trial, appeal or revision cannot be reopened in an execution proceeding. In that view of the matter, this petition being devoid of any merit, is dismissed at the motion stage without issuing notice. No cost.