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2018 DIGILAW 1231 (GAU)

LAILA KHATOON v. HIRA HUSSAIN

2018-08-20

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mrs. R. Choudhury, the learned advocate for the review petitioners as well as Mr. G.N. Sahewalla, the learned senior advocate, assisted by Mr. A.K. Sahewalla, the learned advocate for the respondents. 2. By this petition under Order XLVII Rule 1 read with section 114 CPC, the petitioners are seeking review of the judgment and order dated 19.06.2017, passed by this Court in CRP No. 124/2014. By the said order revision filed by the respondents herein under Article 227 of the Constitution of India was allowed. 3. As this Court had elaborately dealt with the facts in the said CRP No. 124/2014, this Court has refrained from narrating the entire facts for avoiding burdening of this order with repetition. The brief facts necessary for the purpose of this order are as follows:- a. One Smt. Salima Khatoon (since deceased) was the plaintiff in T.S. No. 63/1980. which was tried in the court of Munsiff, Jorhat. There were nine defendants in the suit, namely, Tamizuddin Munshi, Syed Jalabuddin Ahmed, Syed Sahebjada Ahmed, Syed Mstan Ahmed, Sri Nirmal Ch. Ghosh, Sri Subhash Ch. Sarkar, Sri Amit Sarkar, Syed Noor Ahmed @ Maju, Smti. Khairunnissa. The suit was for declaration of right, title, interest and possession in respect of premises described in Schedule-A of the plaint, which consisted of 3 rooms within a definite four boundary. b. Late Sagra Khatoon, who was the mother of the plaintiff, died on 06.01.1980, leaving behind the plaintiff (daughter), Defendant No.1 (son), Defendant No.8 (son), defendant No.9 (daughter), and defendants No.2, 3 and 4 (grandsons, being sons of defendant No.1). During her lifetime, Sagra Khatoon had gifted away the three suit rooms along with land to the plaintiff by executing a Gift Deed which was registered as Deed No. 3758 dated 15.09.1979. The plaintiff had accepted the gift and got the possession. c. The learned Munsiff, Jorhat had decreed the said T.S. No. 63/1980 on 18.08.1982 in favour of the plaintiff allowing the eviction of defendants No. 1 to 4 from the suit premises described in Schedule-A of the plaint. d. The defendant No. 1, namely, Tamizuddin Ahmed preferred an appeal against said decree, which was registered as T.A. No. 53/1982. The said appeal was dismissed by the learned Civil Judge, Jorhat by judgment and decree dated 02.04.1985. d. The defendant No. 1, namely, Tamizuddin Ahmed preferred an appeal against said decree, which was registered as T.A. No. 53/1982. The said appeal was dismissed by the learned Civil Judge, Jorhat by judgment and decree dated 02.04.1985. The said defendant No. 1 preferred a Second Appeal, which was registered before this Court as S.A. No. 100/1985. During the pendency of the said appeal, the defendant No. 1 had died and he was substituted by the present petitioners, namely, Laila Khatun and Mehtab Ahmed. The said S.A. No. 100/1985 was also dismissed by this Court vide judgment dated 07.08.1992. This was the end of the first round of litigation. e. The application for execution of the decree filed by the respondents herein was registered as T. Ex. Case No. 19/2004, wherein the petitioners had filed an objection under Section 47 of the CPC, which was dismissed by the learned executing Court by order dated 15.10.2004. CRP No. 243/2004 filed by the petitioners to challenge the said order dated 15.10.2004, was dismissed by this Court by judgment and order dated 10.12.2004. On receipt of possession, the said decree dated 18.08.1982 stood satisfied and the proceedings of T. Ex. Case No. 19/2004 was closed on satisfaction. This ended the second round of litigation. f. The petitioners then filed an application under Section 144 read with Section 151 CPC, stating that the Civil Nazir had handed over a fourth room as well as a two storied RCC building, as such, the execution was carried out in excess of decree. Hence, prayer for restitution of the properties which were given in excess of the decree was made, which was registered as Misc. (J) Case No. 2/2005. The said case was dismissed by order dated 12.04.2005, inter-alia, holding that the decree was legally and lawfully executed by the Civil Nazir with the help and assistance of the concerned Lat Mandal and Police in presence of the petitioners and other persons by taking all care to give possession as per four boundary shown in the schedule of warrant issued to the Bailiff. This laid to rest the third round of litigation. g. After about two years, the petitioners had filed T.S. No. 91/2007, praying for declaration of right, title, interest and recovery of khas possession of the two storied building, which was dismissed by the learned Munsiff No.2, Jorhat vide judgment and decree dated 27.01.2009. This laid to rest the third round of litigation. g. After about two years, the petitioners had filed T.S. No. 91/2007, praying for declaration of right, title, interest and recovery of khas possession of the two storied building, which was dismissed by the learned Munsiff No.2, Jorhat vide judgment and decree dated 27.01.2009. The petitioners preferred an appeal, which was registered as T.A. No. 9/2009, which was dismissed by the learned Civil Judge, Jorhat by judgment and decree dated 30.05.2009. This ended the fourth round of litigation. h. The petitioners had then started the fifth round of litigation by filing a second application under Section 47 read with Section 151 of the CPC in connection with T.A. No. 19/2004, which was numbered as Misc.(J) Case No. 46/2009. By the said petition, the petitioners had prayed for restoration and possession over the two storied RCC building described in Schedule-B of the said petition by evicting the respondents. The learned Munsiff No. 1 by the impugned order dated 19.03.2014 allowed the said Misc.(J) Case No. 46/2009, directing the restoration of the possession of the RCC building to the petitioners. Challenging the said order, the respondents had filed CRP 124/2014, which was allowed by this Court by the order dated 19.06.2017. 4. The petitioners had preferred SLP No. 25315/2017 against the said order dated 19.06.2017, and the Hon'ble Supreme Court of India had disposed of the said SLP by order dated 06.10.2017 to the following effect:- "Heard. The contention of the petitioners that instead of three rooms in terms of the decree, fourth room has also been taken from the petitioner may be looked into by the High Court if a review petition in this regard is filed by the petitioners before the High Court. The special leave petition is accordingly disposed of. Pending applications, if any, shall also stand disposed of." 5. The petitioners have preferred the present review petition on 14.11.2017, accompanied by an application for condonation of delay, which was registered as M.C. 157/2017, which was allowed by order dated 13.02.2018. Notice of this application was issued by order dated 23.02.2018. Accordingly, the matter has been heard. 6. Pending applications, if any, shall also stand disposed of." 5. The petitioners have preferred the present review petition on 14.11.2017, accompanied by an application for condonation of delay, which was registered as M.C. 157/2017, which was allowed by order dated 13.02.2018. Notice of this application was issued by order dated 23.02.2018. Accordingly, the matter has been heard. 6. The learned advocate for the petitioners has submitted that the suit was for three rooms bereft of land beneath and that there was no dispute that a fourth room together with a two storied R.C.C. building was handed over to the respondents, which was in excess of the decree. It is submitted that the said facet was totally over-looked by this Court. In this contest, the learned advocate for the petitioner has meticulously led this Court through the pleadings of the parties as well as through the various orders passed by various Courts in these 5 (five) rounds of litigation. In support of her submissions, the learned advocate for the petitioners has relied on the following case citations:- a. Suraj Pal (Dead) through LRs. Vs. Ram manorath & Ors., (2017) 14 SCC 862 ; b. Board of Control for Cricket, India & Anr. Vs. Netaji Cricket Club & Ors., (2005) AIR SC 592; c. Usha Ghosh Vs. Rabindra Nath Das, (1993) AIR Calcutta 128. 7. Per contra, the learned senior advocate for the respondents has made his submissions in support of the impugned order. In support of his submissions, the learned senior advocate for the respondents has relied on the following case citations:- a. Sivakami & Ors. Vs. State of Tamil Nadu & Ors., (2018) 4 SCC 587 ; b. Renu Devi Kucheria & Anr. Vs. Travini Devi Tewari & Ors., (2018) 2 GauLR 403 . 8. In support of his submissions, the learned senior advocate for the respondents has relied on the following case citations:- a. Sivakami & Ors. Vs. State of Tamil Nadu & Ors., (2018) 4 SCC 587 ; b. Renu Devi Kucheria & Anr. Vs. Travini Devi Tewari & Ors., (2018) 2 GauLR 403 . 8. It is seen that this Court in paragraph 25 of the impugned order had arrived at a categorical finding that in CRP 124/2014 that in paragraph 6 of CRP No. 243/2004, the petitioners have made a categorical statement that they were under the bona fide impression that they are the lawful owners of the suit property and had right, title and interest over the said suit property, and as such, they have invested a huge sum of money in the development of the suit land and had constructed RCC building by obtaining permission on 20.03.2004 from the Mariani Town Committee for construction of RCC building "upon the suit land". Relying on the said statement, this Court had held to the effect that it appeared to be admitted case of the petitioner that the construction of the RCC building was done in the year 2004, by which time not only T.S. No. 63/1980 was decreed on 18.08.1982, but their T.A. No. 53/1982 was also dismissed and the decree passed by the learned trial court had attained finality by dismissal of S.A. No. 100/85 by judgment and decree dated 07.08.1992 of this Court. Therefore, it was categorically held that by the impugned order that the RCC structure which was "built within the boundary of the decreetal premises" was constructed at the own risk of the petitioners. 9. This Court in paragraph 26 of the impugned order has held to the effect that there is nothing on record to show that except for the suit rooms there was any structure other than the suit rooms within the boundary described in the schedule of the decree. 9. This Court in paragraph 26 of the impugned order has held to the effect that there is nothing on record to show that except for the suit rooms there was any structure other than the suit rooms within the boundary described in the schedule of the decree. Therefore, this Court had held that the petitioners had no right, title, interest over the land within the four boundaries of the suit property and, as such, without establishing the independent right title and interest over the RCC building, the respondent is not entitled to be restored of the possession of any space within the four boundaries of the suit property described in the decree in reference, because the said structure had come up after the suit was decreed and the decree attained finality and during the pendency of the execution proceeding. It was further held that as there is lawful decree in existence, the decree holder would not be required to file a fresh suit against such construction that had been made after the decree had attained finality. 10. Moreover, this Court had also held in paragraph 26 of the impugned order that the right, title, interest and entitlement to possession claimed by the petitioners was lost by the dismissal of TS No. 91/2007 filed by them and therefore, it was further held that the petitioners are deemed to have lost any right to be restored of the possession of any part of the said RCC building, which is within the four boundary of the decreetal property. 11. It is seen that while the petitioner has laid stress on the fourth room, apart from three suit decreetal rooms and a two storied RCC building, it would be relevant to quote paragraph 2 of the judgment dated 27.01.2009, passed by the learned Munsiff No.2, Jorhat in TS 91/2007 "Plaintiff's case: The plaintiffs contend that, alleged decree was for delivery of three specific rooms and the writ issued by Court accordingly. But the bailiff unauthorisedly gave delivery of possession of the said three decreetal rooms along with a two storied R.C.C. house which was situated next to the decreetal rooms, constructed by the plaintiff” 12. It is further seen that the petitioners had filed CRP No. 243/2004 on 09.12.2004, challenging the orders passed in T. Ex. But the bailiff unauthorisedly gave delivery of possession of the said three decreetal rooms along with a two storied R.C.C. house which was situated next to the decreetal rooms, constructed by the plaintiff” 12. It is further seen that the petitioners had filed CRP No. 243/2004 on 09.12.2004, challenging the orders passed in T. Ex. Case No. 19/2004, as stated herein before, the petitioners had stated in paragraph 6 thereof that they were under the bona fide impression that they are the lawful owners of the suit property and had right, title and interest over the said suit property, and as such, they have invested a huge sum of money in the development of the suit land and had constructed RCC building by obtaining permission on 20.03.2004 from the Mariani Town Committee for construction of RCC building "upon the suit land". 13. Moreover, in paragraph 6 of the order dated 10.03.2014, passed by the learned Munsiff No.1, Jorhat in Misc. (J) Case No. 46/2009, which is the order impugned in CRP 124/2014, the said learned Court had recorded in paragraph 4 thereof that " the petitioner/ judgment debtor had filed suit being TS No. 91/2007 before the Court of Munsiff No.2 claiming possession & declaration of right, title, interest & compensation in respect of the two storied RCC building which was handed over to the opposite party/ decree holders in excess of order passed by court in Title Execution Case No. T. Ex. 19/2004. ". In paragraph 6 thereof it is recorded that “it is stated that petitioners have no right whatsoever over the land of 2 storied building and also have no locus standi to claim the building which is imbedded to the land of the OP. ". In paragraph 12 thereof, the said learned Court has recorded that “deposition of bailiff in TS 91/2007, before Civil Judge Junior Division, as exhibit No. 11 wherein the bailiff has stated that he had handed over the possession of the three rooms mentioned in the writ. That apart, he has also handed over the possession of one R.C.C. building, though the same was not mentioned in the writ." 14. Thus, it is seen that the petitioners had alleged that one RCC two storied building was handed over in excess of three decreetal rooms. That apart, he has also handed over the possession of one R.C.C. building, though the same was not mentioned in the writ." 14. Thus, it is seen that the petitioners had alleged that one RCC two storied building was handed over in excess of three decreetal rooms. However, the petitioners are now trying to project a case as if instead of three decreetal rooms, in addition to two storied RCC building, one fourth room has also been handed over. In this context this Court is of the considered opinion that when the Court is dealing with 5 (five) rounds of litigation, consisting of voluminous documents, the Court would generally go according to the facts as narrated in the judgments and orders, save and except when pleadings are specifically referred to. In the present case, the learned advocate for the petitioners has not been able to show from any judicial order as well as from the pleadings on record of CRP 124/2014 that there was a fourth room which was also handed in excess of the decree. 15. In the present case, by the order impugned in this review petition, this Court had held inter-alia, that the construction of the RCC building was done in the year 2004, after T.S. No. 63/1980 was decreed, after Title Appeal No. 53/1982 was dismissed and after Second Appeal No. 100/85 was dismissed by this Court by judgment and decree dated 07.08.1992 and it was also held that the RCC structure which was "built within the boundary of the decreetal premises" at the own risk of the petitioners. 16. It may be pertinent to mention herein that in paragraph 15 of this review petition, the following has been stated "15. That the petitioners begs to state that the aforesaid RCC building was constructed on the side of those three rooms but the construction is not a superstructure i.e. not on the above of those three rooms. It is the fourth room i.e. a RCC building having one room on each floor and the suit rooms are only three katcha rooms completely separated from this RCC building. Suit property as was mentioned in T.S. No.63/1980 are only three rooms though a boundary was mentioned but never prayed for specific land but prayer was for only three rooms. It is the fourth room i.e. a RCC building having one room on each floor and the suit rooms are only three katcha rooms completely separated from this RCC building. Suit property as was mentioned in T.S. No.63/1980 are only three rooms though a boundary was mentioned but never prayed for specific land but prayer was for only three rooms. Eventually decree was passed in respect to that suit property so it is executable only in respect to those three rooms only. Thus the execution done in excess of suit property, over the fourth room has affected the rights of the petitioners and therefore non-consideration of this aspect is an error of law apparent on the face of the record and as such the impugned judgment and order is liable to be reviewed." 17. The learned advocate for the petitioners has not been able to show from any material on record in CRP 124/2014 that the plea of there being a fourth room, as projected in paragraph 15 of this review petition was urged therein. It is seen that it is not the projected case of the petitioners that the existence of the fourth room was hitherto unknown to them and despite due diligence it could not be brought to the notice of the Court when CRP No. 124/2014 was filed and/or being heard. Thus, if the fourth room existed, its mention has not been found in relevant annexures of CRP No. 124/2014 and/or in CRP No. 243/2004, relating to TS 91/1997 filed by the petitioners, or relating to the proceedings of T. Ex. Case No. 19/2004. 18. The case of Board of Control for Cricket (para-88 onwards), was cited by the learned advocate for the petitioners to impress upon this Court that review jurisdiction could be exercised if there was any mistake on part of the Court, or any misconception of fact or law, and also included mistake or misconception of the advocate. The case of Suraj Pal had been cited to impress upon this Court that where error was apparent on the face of record, which is pointed out in review petition, Court can correct that error. Moreover, the case of Usha Ghosh, was cited to impress upon this Court that execution in excess of the decree was a nullity. The case of Suraj Pal had been cited to impress upon this Court that where error was apparent on the face of record, which is pointed out in review petition, Court can correct that error. Moreover, the case of Usha Ghosh, was cited to impress upon this Court that execution in excess of the decree was a nullity. However, in the present case in hand, as discussed herein before, the petitioners have not been able to satisfy this Court that there was any error apparent on the face of record or that the order impugned herein was vitiated by non-consideration of any materials on record, or that the order was vitiated by any mistake or misconception of fact or law on part of the Court or on part of the learned senior advocate who had made his erudite submissions before this Court in CRP 124/2014. Moreover, the case Usha Ghosh also does not help the petitioner because the RCC building was found to be constructed on the suit premises by the petitioners after the suit of the respondents was decreed, as morefully discussed herein before. Hence, with full respect to the said cases, in the humble opinion of this Court, the facts of the present case is distinguishable, for which the said cited cases are found to be of no help to the petitioners. 19. To sum up, the finding of this Court, inter-alia, are:- a. The learned advocate for the petitioners had taken this Court meticulously through the records of CRP 124/2014 and CRP No. 243/2004, which was previously filed by the petitioners, but the error apparent on the face of the record could not be demonstrated. b. Thus, this Court is constrained to hold that the plea of existence of a fourth room in addition to 3 (three) suit rooms and one two storied RCC building is a new plea raised by the petitioners in this fag end of the fifth round of litigation. b. Thus, this Court is constrained to hold that the plea of existence of a fourth room in addition to 3 (three) suit rooms and one two storied RCC building is a new plea raised by the petitioners in this fag end of the fifth round of litigation. c. Consequently, even if there existed a fourth room, the existence thereof was hit by the principles of waiver, estoppel and acquiescence, having not raised at prior point of time before the learned trial Court and/or the learned executing Court or even before this Court in the two civil revision petitions referred herein before, as such, this Court is constrained to hold that the petitioners are estopped from raising the issue of existence of a fourth room for the first time under the guise of revision. In this regard, this Court finds support from the ratio laid down by this Court in the case of Renu Devi Kucheria. d. Moreover, as the categorical finding of this Court in CRP 124/2014 was to the effect that the construction of the RCC building was done in the year 2004, after T.S. No. 63/1980 was decreed, after Title Appeal No. 53/1982 was dismissed and after Second Appeal No. 100/85 was dismissed by this Court by judgment and decree dated 07.08.1992 and it was also held that the RCC structure which was "built within the boundary of the decreetal premises" at the own risk of the petitioners. e. Moreover, it appears to this Court that this review petition is an appeal in disguise. 20. Thus, this review fails and, as such, the same is dismissed, leaving the parties to bear their own cost. 21. The record of CRP No. 243/2004, tagged with CRP No. 124/2014, may be separated and consigned to record room.