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2017 DIGILAW 885 (GAU)

Tarini Kanta Bora v. Hem Chandra Bora

2017-07-11

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. D. Mozumdar, the learned Senior Counsel, assisted by Mr. R. Sarma, appearing for the appellant and Mr. P. Sundi, the learned counsel appearing for the respondent No.1. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 01.10.2016 passed by the learned Munsiff, Kaliabor, in Title Execution Case No. 3(K)/2014, by which his prayer for the measurement of the suit land was rejected. 3. In the said execution proceeding, the Respondent No.1 is the Decree holder (hereinafter referred to as DH). The petitioner is the Judgment Debtor No.1 (hereinafter referred to as 'JD-1' for short). The Respondent No.2 is the Judgment Debtor No.2 (hereinafter referred to as 'JD-2' for short). The Respondent No.3 herein is the Proforma Judgment Debtor No.3, against whom no decree was passed. The parties are arrayed as per the execution proceeding. All the parties are brothers and they are the sons of Late Fatik Chandra Bora. The suit land was left behind by the father of the parties at the time of his death, which was inherited by his four sons. It is projected that during his lifetime, he had given to his daughters share in landed property, as such, they did not claim any share in the property situated at Jakhalabandha Town, which is inclusive of the suit land. 4. The DH had filed a suit for declaration of right, title and interest over land described in Schedule-A of the plaint, for recovery of possession of land described in Schedule-B and C by removing the constructions over it and for permanent injunction. The suit was numbered as Title Suit No. 10(K)/2010. The said suit was dismissed by judgment and decree dated 30.04.2013, passed by the learned Munsiff, Kaliabor. The said decree was challenged in appeal. The learned first appellate court had allowed the appeal by judgment and decree dated 18.03.2014 passed by the learned Court of Civil Judge, Nagaon in Title Appeal No. 29/2013. 5. As per the plaint, the DH was entitled to an equal share of 3 katha- 10 lecha land described in Schedule-A, but at the time of partition, JD-1 and JD-2 were found to be encroaching over 1 katha land each, described in Schedule-B and Schedule-C. Hence, the suit and on dismissal of the suit, the appeal was preferred, which was allowed and decreed. 6. 6. The decree was put to execution before the learned Munsiff, Kaliabor, and the said case was registered as T. Ex. Case No. 3/2014. In the said proceeding, the boundary of the decreetal land was determined by the Lat Mandal and thereafter the decree was executed on21.07.2016. At the time of execution, the JD-1 was allegedly absent from his home. As per the report of the Bailiff of the Court, 5 lecha out of the decreetal land could not be handed over to the DH, as a portion of the building of the JD-1 fell within that area. 7. The JD-1 then moved a petition before the learned executing court, alleging that in his absence the Lat Mandal, in collusion with the DH had incorrectly measured the land by leaving out around 10 feet from the boundary wall from the western portion of the suit land and thereby 10 feet extra land was sought to be usurped, over which the JD-1 was having a 5 storied RCC building and, as such, it was prayed that the land be correctly measured again in the presence of the Circle Officer of Kaliabor Revenue Circle. The said prayer was objected to by the JD. By upholding the objection, the learned executing court had rejected the prayer for fresh measurement of the decreetal land by passing the order impugned herein. 8. The learned Senior Counsel for the JD-1 has projected that he has instructions to submit that the DH may be given the decreetal land, but by incorrectly measuring the land by leaving behind 10 feet land from the boundary of the western portion of the suit land, the JD-1 cannot be deprived of his land. It is submitted that from the reading of the petition No. 402/16 dated 09.09.2016 (Annexure-I), filed before the learned executing court, the JD-1 had produced a copy of the sale deed dated 22.05.2013, by which the DH had sold 1 katha land to the JD-2 during the pendency of the suit and he had also produced a copy of the order by which the said 1 katha land sold to JD-2 was also mutated in favour of JD-2 and that all these were done without informing the trial court and it is submitted that thereby the DH had obtained an in-executable decree. It is submitted that after withholding such sale from the trial court and the first appellate Court, a fraudulent decree was obtained and thus, the real intention of the DH is to still get the decree executed for 3 katha-10 lechas land described in Schedule-A, whereas from out of the said land the DH had sold 1 katha land to JD-2. Hence, it is submitted that in any view of the matter, the land-holding of the DH cannot be more than 2 katha-10 lechas by deducting the 1 katha land sold to JD-2. It is submitted that by withholding the sale, the DH has got the land incorrectly measured by leaving 10 feet land as narrated above and is attempting to dispossess the JD-1 from his land and in the process, get his five storied RCC building demolished in a most illegal manner. 9. The learned senior counsel for the JD-1 submits that he had raised an issue before the learned executing court relating to his threatened dispossession from his own land, which was outside the scope of execution, but the said issue was not addressed at all. 10. Per contra, the learned counsel for the respondent No.1/ DH, while supporting the order impugned herein, has submitted that in the petition filed by the JD-1, no provisions has been quoted and, as such, the JD-1 was not entitled to any relief and the learned court below was not required to address each and every issue raised by the JD-1, because, in the impugned order, the said learned court had held that the decree can be executed without any local inspection being carried out as the decreetal land was duly identified. 11. It is submitted by the learned counsel for the DH that in terms of the prayer (2) made in the plaint, the DH was entitled to get possession of the Schedule-A land by removing the structures standing thereon. Hence, if any structure has been made over the decreetal land, the same is liable to be demolished and this court ought not to be concerned if the JD-1 has illegally constructed the five storied RCC building of any portion of land to which the DH was legally entitled to. 12. Hence, if any structure has been made over the decreetal land, the same is liable to be demolished and this court ought not to be concerned if the JD-1 has illegally constructed the five storied RCC building of any portion of land to which the DH was legally entitled to. 12. The learned counsel for the DH has also submitted that the conduct of the JD-1 can be found out from the impugned order, where it is mentioned that by filing petition No. 408/16, the DH had informed the learned executing court that the JD had dragged out seven pillars from the land which was handed over and in this connection, an FIR was lodged with Jakhalabandha Police Station and, as such, the said learned Court had passed an order to restrain the JD, his men, women and agents from committing any such acts and should not disturb the possession which has been handed over to the decree holder. 13. It is also submitted that if the prayers made by the JD-1 is allowed, it would amount to allowing the learned executing court to go behind the decree, when the JD-1 has accepted the first appellate judgment and decree, which has attained finality because to their knowledge, no appeal or revision had been preferred by the JD-1 against the first appellate decree. 14. It was further submitted by the learned counsel for the DH that there is a specific finding by the learned first appellate court in paragraph 34 of the judgment that the JD-1 had dispossessed DH from 1 katha- 10 lechas land and that the JD-2 had dispossessed the DH from 14 lechas land. It is also submitted that in paragraph 9 of the written statement, the stand of the all the three JDs was that the "... plaintiff's undefined 1/4th share of land includes residential houses, kitchen, bathroom, latrine with septic tank and shop rooms, etc. ...", which indicated that there would be some constructions over the decreetal land and, as such, in terms of the judgment, the DH was entitled to get the fruits of the decree. Hence, it was submitted that the revision was liable to be dismissed. 15. Thus, the only issue raised in the present application is whether the learned executing court was right in refusing appointment of a Commission to carry out local inspection. Hence, it was submitted that the revision was liable to be dismissed. 15. Thus, the only issue raised in the present application is whether the learned executing court was right in refusing appointment of a Commission to carry out local inspection. Owing to the nature of the issue raised before this Court, it is deemed fit to dispose this application at the "admission" stage itself, without calling for the records, as such, this court has heard the learned counsels for both sides and has perused the materials available in the record. 16. One of the issues raised by the learned counsel for the DH is that the JD-1 had not quoted any provisions in their petition No. 402/16. In this connection, this court is of the opinion that a mere non quoting of the relevant provision of law in the petition by any party will not prevent the court from exercising jurisdiction and a party will not be disentitled to the relief sought for, if a case is found to be otherwise made out under the facts of the case. Therefore, misquoting or non- quoting of a provision of law cannot make the proceeding illegal. 17. Thus, the real issue in controversy is that whether at the execution stage, the JD-1 is entitled to get a Commission appointed for making a local inspection, when there is already a report from the Lat Mandal in this regard. 18. On examination of the pleadings, the statements made in paragraph 9 of the written statement do not indicate that the houses and structures fall within the share of the DH. But on reading the complete paragraph, it appears that the JDs were referring to the existence of houses and structures, by stating that without actual physical demarcation, there could not be a perfect partition of the said paternal property in metes and bounds. Thus, the foundation of physical demarcation was laid in the written statement. 19. Moreover, on reading paragraph 34 of the first appellate court judgment, there is a reference to Commissioner's report showing the JD-1 to be occupying 1 katha 4 lechas of land of DH and JD-2 was occupying 14 lechas of plaintiff's land, but the finding recorded in the same paragraph is that the DH was entitled to possession of 1 katha 18 lechas out of which the DH-1 was dispossessed by JD-1 and 14 lechas by JD-2. Therefore, there is apparently some mistake in calculation, because 1 katha 10 lechas and 14 lechas land makes a total of 2 katha 4 lechas, which does not match with the Commissioner's report showing DH-1 occupying 1 katha- 4 lechas land. 20. Under the circumstances, this court is of the view that when there is ambiguity in the judgment, one option for the court would be to declare the decree in-executable and the other option would be to make an attempt to uphold the decree by referring to the pleadings of the parties, their evidence on record or to appoint a Commission for the purpose of elucidating the truth and, as such, for the said limited purpose. Therefore, in the opinion of this Court, the executing court can go behind the decree for the said limited purpose to find out from the pleadings or evidence or by appointing a Commission under the provisions of Order XXVI Rule 9 read with Order XXVI Rule 18-A of the Civil Procedure Code to ensure that not only the decree is upheld, but at the same time the decree is correctly executed. 21. On the perusal of the decree, finds that very surprisingly, there is no decree for removing and/or demolishing of the structures belonging to the JD-1. Thus, there is one overwhelming reason for a re-look into the matter, because while exercising superintending jurisdiction under Article 227 of the Constitution of India, it is also the duty of this Court to keep the courts within the bounds of law. 22. In the present case in hand, it is seen that in course of the execution proceeding, the learned executing court is proposing to demolish a five storied RCC building. Moreover, the admitted case of the parties is that during the pendency of the suit, the DH had sold 1 katha land to JD-2. This fact was concealed from the trial court as well as before the learned executing Court. Therefore, the JD-1 appears to have a genuine grievance that without correctly measuring the land in his presence, in guise of execution, the DJ-1 may be dispossessed from his own land. Hence, the said circumstances, calls for interference in the matter. This fact was concealed from the trial court as well as before the learned executing Court. Therefore, the JD-1 appears to have a genuine grievance that without correctly measuring the land in his presence, in guise of execution, the DJ-1 may be dispossessed from his own land. Hence, the said circumstances, calls for interference in the matter. Accordingly, this Court is of the view that by not considering the said fact, the rejection of the prayer for appointment of a Commission to make local inspection, may occasion a failure of justice, which amounts to jurisdictional error as the learned executing court failed to exercised jurisdiction vested in it by law. This is not a case where the JD-1 is seeking to fish out evidence, but the purpose is to enable the Court to arrive at a just and proper decision. Hence, this Court has no hesitation to set aside the impugned order dated 01.10.2016 passed by the learned Munsiff, Kaliabor, in Title Execution Case No. 3(K)/2014, by allowing appointment of Commission to make a local enquiry so that ends of justice be allowed to prevail in a case where the litigating parties are brothers. The learned executing Court may pass consequential orders so as to enable the Commission to carry out local inspection, which may be done by giving a fixed date, so as to enable the parties or their representative to be positively present, failing which the non-attending party would forfeit their respective right for a fresh Commission on the same issue. 23. As indicated herein before, there is no decree for removing or demolishing the RCC building or other structures standing on the decreetal land. Therefore, this Court is of the view that it would be open for the JD-1 to agitate his grievance before the learned executing court to get a decision on the issue as to whether the decree entitled the learned executing court to remove the existing structures or not. 24. As a result, this revision stands allowed. The issue is decided in favour of the petitioner. The parties are left to bear their own cost. 25. The parties are directed to appear before the learned Munsiff, Kaliabor on 26.07.2017 without any further notice to appear and to seek further instruction from the said learned court.