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2019 DIGILAW 420 (UTT)

VIMAL KUMAR DHAUNDIYAL v. RAJ KUMAR

2019-08-02

SHARAD KUMAR SHARMA

body2019
JUDGMENT Sharad Kumar Sharma, J. (Oral) The present writ petition has been preferred by the petitioners being aggrieved against the Revisional Court's order dated 22.12.2015 by virtue of which the Revisional Court, had while setting aside the order dated 03.10.2015 as passed by the Court of Civil Judge (J.D) Pauri Garhwal in Misc. Case No. 18 of 2009 “Jagat Narayan Dhaundiyal and others vs. Ritha Ram and others" has remitted the matter back to the Trial Court and to issue a fresh Parwana in the name of the Survey Commissioner, who was directed to submit his report afresh within one month before the Trial Court for which he was directed to be paid with the remuneration of Rs. 1,000/-. For the said purpose by the impugned order dated 22.12.2015 the revisionist was directed to take steps within a period of 03 days before the Trial Court and participated in the proceedings before the Trial Court for the conduct of the Survey Commission, which reads as under: “ORDER This Civil Revision is allowed. The impugned order dated 03.10.2015 is set aside. The case is remanded back to the Trial Court. Parwana in the name of survey commissioner next in the list be issued who will submit his report within one month before the Trial Court. He will get Rs. 1000/- as his remuneration + T.A. from the revisionist. The revisionist is directed to take the steps within 03 days in the Trial Court. Both parties are directed to appear in the Trial Court on 03.02.2016. The Trial Court is directed to dispose of the matter on the basis of survey report. Since the matter is pending from 2008, the Trial Court is directed to decide the matter on priority basis. The Lower Court Record be sent back with a copy of this order. Dated: 22.12.2015 (Kawer Sain) District Judge, Pauri Garhwal. Judgment signed, dated and pronounced in open court today" 2. As directed by the Revisionnal Court the survey was to be conducted in the execution proceedings from which the revision was arising i.e. Misc. Case No. 18 of 2009 “Jagat Narayan Dhaundiyal and Others vs. Ritha Ram and Others". Dated: 22.12.2015 (Kawer Sain) District Judge, Pauri Garhwal. Judgment signed, dated and pronounced in open court today" 2. As directed by the Revisionnal Court the survey was to be conducted in the execution proceedings from which the revision was arising i.e. Misc. Case No. 18 of 2009 “Jagat Narayan Dhaundiyal and Others vs. Ritha Ram and Others". Though not necessary, but this Court feels it incumbent to record that detailed manner in which the proceedings have been taken in relation to a suit in question which was filed or a decree of mandatory injunction which was numbered as Suit No. 22 of 1979 “Jagat Narayan Dhaundiyal vs. Ritha Ram and Other" before Civil Judge (Junior Division) which was adjudicated by the Civil Court as back on 12.11.1980. As against the said judgment dated 12.11.1980 and decree of the Trial Court dated 12.11.1980 a Civil Appeal being Civil Appeal No. 24 of 1980 “Jagat Narayan vs. Ritha Ram was preferred which was allowed and consequently the decree was executed in favour of the plaintiff was set aside by Appellate Court on 16.12.1984 and the Suit was decreed which reads as under: “ORDER The appeal succeeds and is here by allowed. Impugned Judgment and decree are set-aside. Plaintiff's suit is decreed. Defendants are directed to deliver the possession of the disputed portion as shown in Map 45-C and as claimed in relief Ba, in a period of one month failing which to achieve the above object, forensic process shall be enforced. The defendants are further restrained permanently from offering any interference in plaintiffs possession over the entire area of plot No. 1481. Above Map shall from part of the decree. Under the circumstances of the case, costs throughout shall be easy. (Chhotey Lal) Civil Judge. Pauri Garhwal. Camp: Kotdwara. Date: 16.02.1984" 3. Being aggrieved against the said order and judgment dated 16.12.1984 rendered by the First Appellate Court, a second appeal was preferred before Allahabad High Court and the second appeal was decided by the judgment dated 21.05.2007, as rendered by this Court on its transfer under Reorganization Act and as a consequence thereto the second appeal was dismissed and the first Appellate Courts decree 16.12.1984 was affirmed. The property in dispute which was initially lying in Khasra No. 1481 as describe in para -2 of the plaint and which according to the present bandobasti was renumbered as to be Khatauni having an area of 2.076 hectares i.e. equivalent to 103 Nali 14 Mutthi of land. After the judgment rendered by the Second Appellate Court and as has been considered by the Revisional Court in its order impugned dated 22.12.2015 in the present writ petition it had been remarked upon the observations which was made in the Second Appeal No. 1352 of 2001 “Ritha Ram and others vs. Jagat Narain Dhondiyal" pertaining to the findings recorded in para-7 of the judgment of the Second Appellate Court dated 21.05.2007 which reads as under. “The appellate court has recorded the finding that the plaintiff's land is covered by the sale deed of the entire area of Plot No. 1481 and therefore, the plaintiff has established the title on the disputed land with regard to the land situate in the area of Plot No. 1481 and as such, the second appeal is concluded by findings of fact. However, it will be open for the appellant to take the objections during the execution proceedings" 4. On the culminations of the proceedings by the second appellate court on 21.05.2007 and the consequential initiation of the execution proceedings by way of Execution Case No. 18 of 2009 “Jagat Narayan Dhaundiyal and others vs. Ritha Ram and others" the controversy have arose was with regards to the identifiability of the land by filing an objection by way of Section 47 of the Code of Civil Procedure before the Executing Court. The judgment debtors i.e. the present respondents have raised three primary questions before the execution proceedings to object the same on the grounds :- (i) That as far as the O.P. Nos. 3 & 4 are concerned since they were not made a party to the proceedings the decree could not be executed as against them (ii) A question was raised that in the execution proceedings the decree which has been put to execution the property in dispute has not been identified or specifically specified which is to be executed in pursuance to the decree rendered and affirmed up to the Second Appellate Court. (iii) In view of the fact that the property in question was not identifiable the decree cannot be put to execution and proceedings of suit was barred by Section 331 of Zamindari Abolition and Land Reforms Act, 1950. 5. The third question which was raised before the Executing Court was to the effect that in the principal suit, which was instituted before the subordinate Court, that question was raised that the proceedings would be barred by the provisions contained under Section 331 of U.P.Z.A. & L.R. Act and the said question was decided in favour of the defendants to the said suit while deciding issue No.9. But the said question was ultimately reversed by the Appellate Court, and later on it was decided by the Second Appellate Court by the Judgment dated 21.05.2007 whereby the decree of suit rendered by first appellate court was affirmed with dismissal of the second appeal. 6. However, at this stage this Court is not concerned with the vitality to the matter which has been decided by Second Appellate Court by the judgment dated 21.05.2007. Because here in the present writ petition the revision which has been preferred by the revisionist was against an order dated 03.10.2015, whereby the objection paper no. 3ga as preferred under Section 47 before the Executing Court in Execution Case No. 18 of 2009 that was rejected. As against the order of rejection dated 03.10.2015 in the Execution Case No. 18 of 2009 Jagat Narayan vs. Ritha Ram and others the revision was preferred before the District Judge Pauri Garhwal being Civil Revision No. 30 of 2015 Ritha Ram (since deceased represented by the heirs) vs. Jagat Narayan Dhaundiyal (since deceased represented by his heirs). 7. The Revisional Court after considering the veracity of the order dated 03.10.2015 which was passed in the Misc. Civil Execution Case No. 18 of 2009 dismissing the objectors' paper no. 7. The Revisional Court after considering the veracity of the order dated 03.10.2015 which was passed in the Misc. Civil Execution Case No. 18 of 2009 dismissing the objectors' paper no. C-3 as moved under Section 47 of the Code of Civil Procedure, the Court has held that on account of the fact that the second objection which was raised before the Executing Court pertaining to the identifiability of the property the Court held that the order dated 03.10.2015 since there was a vagueness with regards to the determination of the exchange of rights of the parties in pursuance to the decree rendered by the Second Appellate Court in relation to Khet No. 1481 and the question which was slightly disputed as to which part belongs to the revisionist, whether it is 52 Nalis or which part belongs to respondents whether it is 100 Nalis or not that was required to be determined afresh. 8. Considering the aforesaid determination and also this Court keeping in mind that the suit happens to be of 1979 and despite the fact that the controversy interse between the parties stood settled by the judgment rendered by the Second Appellate Court vide its judgment rendered on 21.05.2007, but still the decree has not yet been put to execution and has not been still attained its final determination despite of affirmation of decree with the dismissal of Second Appeal on 21.05.2007. In order to resolve the controversy which was emanating at an execution stage by virtue of an order dated 03.10.2015, Revisional Court found that the criteria adopted for the determination of the exchange of property which was to be vested with the decree holder or with the judgment debtors. The Court held that in the given set and circumstances it would be in the interest of the parties concerned and particularly in order to provide a finality to the judgment rendered by the Second Appellate Court in a proceeding which was arising out of the suit of 1979, directed that the matter be remitted back to the Trial Court afresh for conducting a Survey Commission to be issued and to submit a fresh report before the Trial Court with regards to the identification of the rights as determined in the proceedings which has been culminated up to the Second Appellate Court. 9. 9. It is this order of remand which is being put to challenge by the present petitioner on the pretext that the directions which has been issued by the District Judge, Pauri Garhwal while exercising his revisional power by the impugned order dated 22.12.2015 in fact it contained a certain vitalities with regards to the determination of expanse of property which was to be vested with the parties to the proceedings of Suit No. 22 of 1979. This apprehension as expressed by the learned counsel for the petitioner constituted to be the basis for filing instant writ petition. This writ petition since it emanates from an order of remand whereby the Executing Court has been directed to hold a Survey Commission and to determine the expanse of property which the decree holder or the judgment debtors would be entitled to be vested with the rights in accordance with the decree rendered by the Court's below in suit No. 22 of 1979. This Court is of the view that any stray finding which has been recorded by the Revisional Court while passing an order of remand for determining the expanse of property to be vested with the parties to the proceedings in pursuance to the decree rendered by the court below. It is made clear that while the Survey Commission is being conducted under the domain of the Executing Court it would be absolutely an independent survey which has to be confined in the light of the rights which stands determined interse amongst the parties in pursuance to the judgment of the Second Appellate Court dated 21.05.2007 and decree as passed by first appellate court decreeing the suit and the Survey Commission would be contempted the strictly within the parameters of the judgment and decree which has attained finality by the judgment of Second Appellate Court dated 21.05.2007 and will not travel beyond the scope of the judgment and decree in view of the any of the stray finding which has been recorded by the Revisional Court. Considering the fact that the litigation is pending consideration since 1979 this Court directs the Executing Court that in compliance of the order dated 22.12.2015, he would make all endeavor to get the Survey Commission conducted in accordance with the terms of the decree and decide the execution case itself within a specified time frame but under no circumstances beyond the period of six months from the date of production of certified copy of today's order. 10. Subject to the above observations, the writ petition stands disposed of. 11. The fact remains that this Court cannot be oblivions of the fact that this writ petition as against the impugned order was entertained as back as on 08.01.2016. Despite of notice being served the respondents on 03.06.2016, the averments made in the writ petition were not controverted by the respondents by filing a counter affidavit. In the light of the aforesaid fact the decree if at all has to be executed by the Executing Court it has to be within the specified parameters of the Second Appellate Court's judgment dated 21.05.2007. 12. Accordingly, the writ petition is dismissed subject to the above observations. However, there would be no order as to costs.