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2019 DIGILAW 1237 (JHR)

Sanjay Sonar v. Kabita Devi

2019-07-03

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : This writ petition is under Article 227 of the Constitution of India, whereby and whereunder, the order dated 03.05.2019, passed in Execution Case No. 5/13 by the Munsif, Koderma is under challenge by which the objection filed by the petitioners vide petition dated 05.02.2018 raising the maintainability of the Execution proceeding on the ground that no degree has been passed by the trial court for delivering the possession of the property in question. 2. The brief facts of the case of the petitioners, as per the pleadings made in the writ petition, is that a Title Suit being Title Suit No. 21 of 2007 has been filed by the respondents for the following reliefs :- “(A) That it be declared that plaintiffs Natho Sonar hold all right, title interest and possession on 04 decimals land mentioned in Schedule ‘I’ of the plaint and plaintiff kabita Devi holds right, title, interst and possession on 10 decimals land in suit mentioned in Schedule ‘II’ of the plaint and their title thereon be declared and their possession thereon be confirmed. (B) That the sale deed No. 4642, dated 6.9.2000 by defendant no. 1 Gangadhar Sonar in respect of suit land in favour of defendants no. 2 to 4 Sahdeo Sonar, Arjun Sonar and Sanjay Sonar, fully described in Schedule ‘III’ of the plaint, be declared illegal, inoperative, ipso factor void and of no legal consequence so far plaintiffs are concerned and the same is also not binding on the plaintiffs. (C) That the defendants, their men and agents and anybody claiming through them may be permanently injuncted from interfering with plaintiffs’ possession on suit land in any manner. (D) That the cost of the suit may be awarded to the plaintiffs. (E) That any other relief or reliefs to which plaintiffs are found entitled may be awarded to them.” 3. In the said suit, the ex parte decree was passed on 03.03.2009. (D) That the cost of the suit may be awarded to the plaintiffs. (E) That any other relief or reliefs to which plaintiffs are found entitled may be awarded to them.” 3. In the said suit, the ex parte decree was passed on 03.03.2009. In consequence upon the same, the decree was signed on 20th March, 2009, whereby and whereunder the decree has been passed, which reads hereunder as:- “(A) That it be declared that plaintiffs Natho Sonar holds all right, title, interest and possession on 04 decimals land mentioned in Schedule I of the plaint and plaintiff Kabita Devi holds right title, interest and possession on 10 decimals land in suit mentioned in Schedule II of the plaint and their title thereon be declared and their possession thereon be confirmed. Schedule XLII-Form No. (J) 17 (Old C.P. 20) This suit coming on this for final disposal before Smt. Radha Bhaovanjan Munsif Koderma 3.3.09 day in the Presence of Sri Sheo Shankar Prasad Advocate for the plaintiff and of Sri Sudhir Kumar Sinha Advocate for the defendant it is order and decreed that That the plaintiffs suit be and the same is decreed on contest with cost U/O VIII Rule 10 C.P.C. against the Dft. The right, title, interest at Pf. No. 1 Natho Sonar is declared over the land of Sch-1 of the plaint and his possession over the same is also confirmed. And that the sum of Rs.4204/-xxx as paid by the defendant to the plaintiff on account of the costs of this suit, with interest thereon at the rate of per annum from this date to date of realization” 4. And that the sum of Rs.4204/-xxx as paid by the defendant to the plaintiff on account of the costs of this suit, with interest thereon at the rate of per annum from this date to date of realization” 4. Thereafter, the decree holder has instituted an Execution case being Execution Case No. 01 of 2010 in which the notices have been issued to the petitioners/judgment debtors upon which the petitioners’ wife has filed a petition for restoration of the suit in exercise of the power under Order IX Rule 13 of the Code of Civil Procedure, which was registered as Miscellaneous Case No. 5/2010, but subsequently, the same has been withdrawn and thereafter an appeal has been filed being Title Appeal No. 19 of 2010 before the District Judge, Koderma, which was dismissed on the ground of limitation against which second appeal has been filed being Second Appeal No. 136 of 2017, which was disposed of vide order dated 03.12.2018 with a direction to file an appropriate application with an appropriate order. The petitioner thereafter, has filed petition questioning the execution proceedings on the ground that the execution case has been initiated under Section 21 Rule I of the Code of Civil Procedure for delivery of the said property without mentioning the details and description of the property to be delivered in execution. It is the further case that earlier to the Execution Case No. 5 of 2013, one another execution case being Execution Case no. 1 of 2010 was also filed. In the Execution Case No. 5 of 2013, show cause has been filed raising the objection to the effect that since the Second Appeal is pending, therefore, further proceeding in the aforesaid Execution Case have been prayed to be stayed, awaiting for the outcome of the Second Appeal. 1 of 2010 was also filed. In the Execution Case No. 5 of 2013, show cause has been filed raising the objection to the effect that since the Second Appeal is pending, therefore, further proceeding in the aforesaid Execution Case have been prayed to be stayed, awaiting for the outcome of the Second Appeal. Again a petition has been filed by the petitioners/judgment debtors, raising objection on the proceeding of the execution case on the ground that there is no prayer made in the plaint with respect to the delivery of possession, rather, it was the admitted case of the plaintiffs/decree holders that they were in possession and, therefore, in absence of a prayer made in the plaint basis upon which the decree has been passed, wherein, there is no decree for delivery of possession and hence, the executing Court is not supposed to proceed with execution proceedings for delivery of possession of the landed property in question, in view of the settled position of law that the executing court is not supposed to deviate from the decree, the trial court after considering the grounds agitated by the petitioner, vis-à-vis the objection filed by the decree holder has passed an order on 03.05.2019, rejecting the said petition by fixing the date for further proceeding, which is under challenge in this writ petition. The contention has been raised by the learned counsel for the petitioners that in absence of specific prayer in the plaint with respect to delivery of possession, there cannot be any decree passed in that regard and actually there is no decree for delivery of possession, therefore, the executing Court, which has proceeded for delivery of possession as per the prayer made by the decree holder in the execution case is not proper for the reason that it is the prime duty of the executing Court, as stipulated under Order 21 Rule I of the Code of Civil Procedure that the executing Court is to execute the decree in its letter and spirit but in no circumstances, the decree can be deviated and the decree is to be executed as it is. 5. 5. Heard the learned counsel for the petitioners, gone across the pleadings made in the writ petition as also the plaint and the finding recorded by the executing Court, which is impugned in this writ petition, wherefrom, the admitted fact is that the decree holder has filed a suit, seeking the reliefs, as quoted, hereinabove and one of the reliefs is for “Confirmation of Possession”. The Suit has been set ex-parte which has been concluded by passing the order, as referred with the confirmation of possession. The petitioners have filed First Appeal, but lost, thereafter filed Second Appeal, but also lost therein. The execution case has been filed, wherein, the objection has been made by the petitioners/judgment debtors that the executing Court cannot travel beyond the decree and since there is no decree passed by the trial court for delivery of possession, hence, the executing Court cannot be allowed to proceed for delivery of possession. It is not in dispute that the executing Court is not to travel beyond the decree but the question herein, is that what is the meaning of “Confirmation of Possession”. The issue about the meaning of “Confirmation of Possession” fell for consideration before the Division Bench of the Hon’ble Patna High Court in the case of Chandi Prasad Vs. Awadh Narayan Jha reported in AIR 1952 Patna 143, wherein, it has been observed that when there is a prayer to the effect about “Confirmation of Possession”, the implied interpretation of it would be for recovery of possession of the lands. In the case of Jagabandhu Nayak & Another Vs. Gouri Bandha and others reported in AIR 1985 Orissa 126, it has been held at paragraph 6 by taking the aid of the another judgment rendered in the case of V. Krishna Rao Dora v. Kotini Sitaram Dora reported in (1973) 39 Cut LT 975, which reads hereunder as :- “6. It was then contended by the learned counsel for the respondents that the suit must fail as there had been no prayer for recovery of possession. In para 9 of the plaint, it has been specifically prayed that plaintiffs' title over 'Ka' and 'Kha' schedule lands may be declared and possession be confirmed and the defendants be directed to fill up the portion which they have dug at their expenses. In para 9 of the plaint, it has been specifically prayed that plaintiffs' title over 'Ka' and 'Kha' schedule lands may be declared and possession be confirmed and the defendants be directed to fill up the portion which they have dug at their expenses. The plaint read as a whole must be interpreted that possession was also prayed for in the suit. In the case of V. Krishna Rao Dora v. Kotini Sitaram Dora reported in (1973) 39 Cut LT 975 this court has held that the court can order recovery of possession though not specifically asked for and though only confirmation of possession was sought for if necessary court-fee on the plaint had been paid. Para 6 of the said judgment is quoted herein below in extenso : "The learned single Judge also held that the suit was not maintainable as the plaintiffs did not ask for the relief of recovery of possession and were satisfied with the relief of confirmation of possession. Law is now well settled that both "Recovery of Possession" and "Confirmation of Possession" are consequential reliefs. If the suit is for declaration of title and any one of these consequential reliefs, then, the plaintiffs are to pay ad valorem court-fee. In this case, ad valorem court-fee has been paid on the amount for which the suit was valued. In fact, the quantum of court-fee being disputed the matter was ultimately decided by the taxing judge who held that the ad valorem court-fee paid on the disputed lands on the reduced valuation was sufficient. Doubtless, when possession is declared in favour of a party in a proceeding under S.145, Cr.P.C. the party not in possession must ask for the relief of recovery of possession, he having been held as being out of possession. But where ad valorem court-fee has been paid, it is open to the court to grant the relief of recovery of possession even if the prayer is for confirmation of possession. Such a relief would come within the ambit of the wide powers conferred upon the courts to grant relief and that is why an omnibus prayer is added in the plaint that the court may grant such relief as it thinks fit. In this case, the plaint contains such a prayer. Even if such a prayer had not been made, the court is not powerless to grant the relief. In this case, the plaint contains such a prayer. Even if such a prayer had not been made, the court is not powerless to grant the relief. In the facts and circumstances of this case, the relief of recovery of possession can be granted to the plaintiffs even though they prayed for confirmation of possession as they had paid ad valorem court-fee which is payable in a suit for declaration of title and recovery of possession." In this view of the matter, I do not find any merit in the contention of the learned counsel for the respondents.” A Bench of this Court in the case of Jai Kishun Choudhary & Ors. Vs. Ramdeo Choudhary reported in 2005 (3) JCR 188 (Jhr.) at paragraph 8 has held, which reads hereunder as:- “8. From the discussions made above and after going through the respective claims of the parties together with references cited on their behalf, it is clear that all the argument raised in course of submission by the learned counsel for the defendant-respondent have been answered by the leaned counsel for the plaintiffs-appellants and from the fact that the defendant-respondent claimed that no relief for recovery of possession has been made, has been answered by the case law reported in AIR 1952 Pat 143 (supra) cited on behalf of the plaintiffs-appellants, which shows that prayer for relief of confirmation of possession includes prayer for recovery of possession and that has been followed by Orissa High Court in AIR 1985 Ori 126 (supra).” It is, thus, evident that if no relief for recovery of possession has been made, the prayer for relief of “Confirmation of Possession”, would mean for recovery of possession. 6. In the light of this position of law, as has been interpreted and settled in the judgment referred hereinabove, this Court on scrutiny of the relief, sought for in the plaint by the plaintiff, has found that one of the prayers is “the position thereon be confirmed” and in consequent upon the same, the decree has been passed by the trial court about “Confirmation of Possession” and therefore, the “Confirmation of Possession” will include delivery of possession. Further it can be said that when there is a prayer in the plaint and decree passed thereupon by ordering for “Confirmation of Possession”, the word confirmation signifies that the decree holder may be found to be in possession, then only the possession would be said to be confirmed and, therefore, when the executing Court is proceeding for “Confirmation of Possession”, taking into consideration the decree passed for “Delivery of Possession” cannot be said to have committed any illegality. In view of the aforesaid reasoning, as discussed hereinabove and taking into consideration, the finding recorded by the trial court in the impugned order, it is in the considered view of this Court that holding the petition filed by the petitioners/judgment debtors under Order 21 Rule 11 (2) of the Code of Civil Procedure cannot be held to be not proper. Accordingly, the finding recorded therein, is having no infirmity, therefore, this Court is not inclined to interfere with the same in exercise of the extraordinary jurisdiction under Article 227 of the Constitution of India. 7. Accordingly, this writ petition fails, and it is dismissed.