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2019 DIGILAW 1202 (HP)

Saroj Kumari v. Gayatri Devi

2019-08-21

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, Judge (Oral): By way of this petition, the petitioner/Decree Holder has challenged order, dated 09.10.2017, passed by the Court of learned Civil Judge (Junior Division), Court No. II, Palampur, H.P. on the Objections which were filed before the said Court to the report of a Field Kanungo, dated 19.04.2017, which objections learned Court below rejected by way of the impugned order. 2. Brief facts necessary for the adjudication of present petition are that the petitionerherein filed a suit for partition and rendition of accounts against the respondentdefendant, in which, a preliminary decree was passed in favour of the plaintiff and against the defendant in the following terms: ?14. In view of my findings on aforesaid issues, the suit of the plaintiff is partly decreed whereby preliminary decree of partition is passed in favour of plaintiff and against defendant qua suit property comprised in Khewat No. 63, Khatonies No. 140 to 144, Khasra Nos. 512, 513, 514, 521, 523, 525, 519, 520, 522, 526, 524, land measuring 304-91 Square meters, situated in Mouja Palampur, Tehsil Palampur, District Kangra (H.P.) wherein three storey house is situated as shown in site plan Ex.P3 owned by plaintiff and defendant in equal share. The rest of the suit is dismissed. There is no order as to costs. Decree be prepared accordingly. The file after its completion be consigned to record room.? 3. In terms of the preliminary decree, Naib Tehsildar, Palampur undertook the process of partition between the parties, as is reflected in Annexure P-2 appended with the petition. Two lots were proposed by the Local Commissioner for effecting partition, which were termed as Lot =A' and Lot =B' and in addition to said two lots, it was further mentioned in the said report that apart from above, path comprised in Khasra Nos. 512, 513, 514, Kita 3, measuring 40-58 square metres was kept joint so that the same could be used jointly and severally by both the owners. Report further demonstrates that Lot =A' was partitioned in favour of the petitioner, i.e., Decree Holder, whereas Lot =B' was partitioned in favour of the respondent/Judgment Debtor. The area of Lot =A' was mentioned therein as 131-43 square metres and that of Lot =B' was mentioned as 132-90 square metres. Path which was reflected in the joint ownership of both in equal shares, was mentioned as 40-58 square metres. 4. The area of Lot =A' was mentioned therein as 131-43 square metres and that of Lot =B' was mentioned as 132-90 square metres. Path which was reflected in the joint ownership of both in equal shares, was mentioned as 40-58 square metres. 4. In terms of the said report, learned Court below passed a final decree of partition of the suit land in favour of the Decree Holder and against the Judgment Debtor, wherein it was directed that the property was liable to be partitioned as per the mode of Local Commissioner, Naib Tehsildar, Palampur, dated 29.10.2004, which shall form part of the decree. Thereafter, when the Revenue Authorities were approached by the parties for the purpose of putting them in possession of the respective land in terms of the partition mode, the petitioner was not satisfied with the report which was prepared by the Field Kanungo in the said process on 19.04.2017. 5. Feeling aggrieved, the petitioner filed Objections against the report of Field Kanungo in the Court of learned Civil Judge (Junior Division), Court No. II, Palampur, H.P., which, as I have already mentioned above, have been decided against the petitioner by the said Court vide impugned order. 6. Having heard learned counsel for the parties and after going through the impugned order as well as the documents appended with the petition, this Court is of the view that the Objections which stood filed by the petitioner against the report of Field Kanungo before the learned Court below, which stand adjudicated upon vide impugned order, dated 09.10.2017, were not maintainable before the learned Court below. A perusal of said objections which are on record as Annexure P-7 demonstrates that nothing is mentioned therein as to under which particular provision of law these objections were filed by the petitioner against the report of Field Kanungo before the learned Court below. The objections were not supported by any affidavit of the Objector. Even otherwise, in my considered view, if the grievance of the petitioner was that the decree passed in her favour by the competent Court of law was not being executed in terms thereof, then she ought to have approached the learned Executing Court under the provisions of the Code of Civil Procedure, but obviously not by filing objections to the report of Field Kanungo. While adjudicating upon the said objections, learned Civil Court also erred in not appreciating that it was not having any jurisdiction either to entertain any such objections which were filed before it by the petitioner or pass any order on the same. 7. A Court in the process of adjudication is bound by the procedure, which has to be adopted by it for the purpose of deciding a lis. As already mentioned above, there is a procedure prescribed under the Code of Civil Procedure as to how a decree has to be executed. Decrees cannot be executed by filing vague applications/objections before the Courts below with the presumption that the same shall be treated as Execution Petitions by the Court concerned. 8. One more important aspect of the matter which this Court wants to highlight is that it has been observed that it is a practice rampant before the Courts below that pleadings are being filed on behalf of the parties without the contents thereof being supported with an affidavit by the party concerned. This Court is not oblivious to the fact that a formal application can be filed on behalf of the party by the counsel of the party, but this practice cannot be extended to applications which cannot be termed as formal and which are based on the knowledge of the party. In other words, whenever any application/ reply/ objections/petition etc. is filed by the party before the Court concerned, then obviously its contents have to be verified and supported on an affidavit of the party concerned and in the absence of any such affidavit accompanying any such petition/application/objections/reply etc., the Courts below should not even take such kind of pleadings on record. 9. Coming back to the facts of this case, as this Court is of the view that the objections which were filed by the petitioner before the learned Court below, which have resulted in the passing of impugned order, were not maintainable before the learned Court below, this petition is disposed of by setting aside order, dated 09.10.2017, passed by the Court of learned Civil Judge (Junior Division), Court No II, Palampur, H.P. on the said objections, not on merit but on the issue of maintainability, but with liberty to the petitioner to have the judgment and decree passed in her favour by the learned Court below executed in accordance with law. Miscellaneous applications, if any, also stand disposed of.