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2022 DIGILAW 1211 (JHR)

Kisto Pado Kumbhkar v. Shyampado Kumbhkar

2022-09-28

RAJESH SHANKAR

body2022
ORDER : The present revision petition has been filed for quashing the order dated 10.02.2022 passed by the Civil Judge (Sr. Division)-II, Dhanbad in Civil Misc. Case No. 13 of 2021, whereby the application filed by the petitioner under Order XXI Rule 97 and 101 r/w Section 151 CPC has been dismissed being not maintainable. 2. Learned counsel for the petitioner submits that the land appertaining to C.S Khata No. 204, Plot No. 335, Mouza-Bagsuma, Mouza No. 197, measuring an area of 10 decimals originally belonged to the recorded tenant namely, Anant Kumhar. After his death, the said property devolved in his widow namely, Smt. Makhan Kumharin, who sold the said land jointly to Shanti Kumharin, Kunti Kumharin, Sumitra Kumharin, Jhanu Khumharin @ Josu Kumharin and Fuli Kumharin @ Kuli Kumharin in equal share vide sale deed dated 10.02.1928. Sumitra Kumharin sold her 1/5th share i.e., 2 decimals of land to Bhim Kumhar vide sale deed dated 07.08.1953. Thus, Kunti Kumharin and her husband Bhim Kumhar jointly possessed 4 decimals of the said land out of total area measuring 10 decimals. After the death of Kunti Kumharin and Bhim Kumhar, their two sons i.e., the present petitioner and the Judgment Debtor/respondent no. 5 came in joint possession of 4 decimals of the said land. It is further submitted that said 4 decimals of land came in exclusive possession of the petitioner in family settlement and he constructed a residential pucca house as well as other structures over the same. A suit being Title Suit No. 262 of 2011 was filed by the plaintiffs/respondent nos. 1 to 4 against the respondent no. 5 in the court of Civil Judge (Sr. Division)-II, Dhanbad, wherein it was claimed that by an unregistered deed of partition among joint share holders, the said 10 decimals land came in the possession of Jhanu Kumharin, who sold the property to Bhikhakar Kumbhkar (father of the respondent nos. 1 and 2) and Sachindra Nath Kumbhkar (father of the respondent nos. 3 and 4) vide sale deed dated 26.02.1960. Finally, a decree was passed in favour of the plaintiffs/respondent nos. 1 to 4 and thereafter they filed Execution Case No. 1 of 2021 against the judgment debtor/respondent no. 1 and 2) and Sachindra Nath Kumbhkar (father of the respondent nos. 3 and 4) vide sale deed dated 26.02.1960. Finally, a decree was passed in favour of the plaintiffs/respondent nos. 1 to 4 and thereafter they filed Execution Case No. 1 of 2021 against the judgment debtor/respondent no. 5 for execution of the decree and only thereafter i.e., on 10.03.2021, the petitioner came to know about filing of Title Suit No. 262 of 2011 and passing of the judgment and decree in the same in favour of the plaintiffs. Accordingly, the petitioner filed Civil Misc. Case No. 13 of 2021 under Order XXI Rule 97 and 101 read with Section 151 CPC, however, the said application has been dismissed by the executing court vide impugned order dated 10.02.2022 observing that the issue raised by the petitioner has already been decided by the trial court. 3. In the case in hand, the office has reported that an appeal is maintainable against the impugned order and as such, the present Civil Revision is not maintainable. The said objection raised by the office has been countered by learned counsel for the petitioner by submitting that an inquiry with respect to the right, title and interest of the petitioner has not been made in Civil Misc. Case No. 13/2021, rather the same has been dismissed by the executing court at the admission stage itself being not maintainable and as such, the said order cannot be termed as a decree so as to file an appeal. Thus, the present revision petition is maintainable. 4. Learned counsel for the petitioner puts reliance on the judgment rendered by Chhattisgarh High Court in the case of “Ram Kumar Tiwari & Ors. Vs. Deenanath & Ors.” reported in AIR 2002 Chhattisgarh 1 and submits that if the executing court passes an order under Order XXI Rule 98 or 100, only then such order will be deemed to be a decree and will be subject to appeal. However, if an application filed under Order XXI Rule 97 or Rule 99 is dismissed at its threshold on the ground of maintainability without making any inquiry as to the right, title and interest of the parties, then such order cannot be termed as an order passed under Rule 98 or Rule 100 and against such order, revision will be maintainable. 5. 5. To appreciate the contention of learned counsel for the petitioner, it would be appropriate to refer the relevant part of the impugned order dated 10.02.2022, which is quoted here-in-below: It is evident from the judgment that the present applicant is a brother of defendant and he had full knowledge of the suit. The applicant wants to re-agitate the issues which has already been decided and achieved finality even by Appellate Court in Title Appeal No. 101/2015. The documents submitted by the present petitioner are the same as filed by the defendant in his defence. I am afraid that the rulings cited by the ld. counsel are not applicable in the fact of the present case. In view of the above, I am of he considered view that the present case has been filed to re-agitate the issues already decided by the Trial Court for hampering the proceeding of execution and the same has been filed beyond the period of limitation and there is no right, title, interest and possession of the petitioner over the suit land. I find no merit in the petition for admission. Hence, the Misc. Case No. 13 of 2021 is not maintainable for hearing and same is dismissed at the stage of admission. O/C to deposit the record in the Records Room, as per the Rules. 6. It thus appears that while dismissing the said miscellaneous case, the executing court has not gone into the adjudication of the right, title, interest and possession over the land in question, rather has dismissed the said miscellaneous case observing that the issue raised by the petitioner was already decided by the trial court. Thus, the objection raised by the office with regard to maintainability of the present revision petition is ignored. 7. So far as the merit of the petitioner’s claim is concerned, he happens to be the own brother of the defendant/judgment debtor/respondent no. 5 and is trying to object the execution of the decree on the strength of the sale deed dated 10.02.1928. 7. So far as the merit of the petitioner’s claim is concerned, he happens to be the own brother of the defendant/judgment debtor/respondent no. 5 and is trying to object the execution of the decree on the strength of the sale deed dated 10.02.1928. The same sale deed was also relied upon by the judgment debtor before the trial court, however, the trial court observed that after purchase of 10 decimals of land jointly, a partition deed was executed in the year 1938 with consent of all the purchasers, whereby the entire land was allotted to Jhanu Kumharin and subsequently, she sold the said 10 decimals of land to father of the respondent nos. 1 and 2 as well as father of the respondent nos. 3 and 4 vide registered sale deed dated 26.02.1960. The trial court further held that plaintiffs were in possession of the suit land except the room built over the same which was given to the defendant on rent. The petitioner has not brought any new fact before the executing court claiming his right, title, interest and possession over the suit land and, therefore, the same has been dismissed at admission stage itself. Thus, I do not find any merit on the claim of the petitioner. 8. One of the arguments of the learned counsel for the petitioner is that he was not having knowledge about filing of Title Suit No. 262 of 2011. The said claim is not acceptable to this court since the defendant/judgment debtor is the own brother of the petitioner who had contested the said title suit and also lost Title Appeal No. 101 of 2015 against which the second appeal being S.A No. 14 of 2020 is pending before a Bench of this Court. 9. In view of the aforesaid reasons, I find no infirmity in the order dated 10.02.2022 passed by the Civil Judge (Sr. Division)-II, Dhanbad in Civil Misc. Case No. 13 of 2021. 10. The present Civil Revision is accordingly dismissed.