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2024 DIGILAW 195 (PAT)

Bharath Bhagat v. Ramadhar Singh

2024-02-16

KHATIM REZA

body2024
ORDER Re. Interlocutory Application No. 4568 of 2016. This interlocutory application has been filed by the appellants for staying the further proceeding of Execution Case No. 3 of 2013, arising out of Title Suit No. 12 of 2003, pending in the Court of Sub- Judge 8th Siwan. 2. The defendants-appellants have filed the present Second Appeal against the judgment and decree dated 08/05/2012 passed by Additional District Judge- 3rd Fast Track Court, Siwan in Title Appeal No 59/2008, whereby the learned lower appellate court reversed the judgment and decree dated 13/08/2008, passed by Sub Judge 8th, Siwan, in Title Suit no 12/2003. 3. The plaintiffs-respondents filed Title Suit No. 12 of 2003 for declaration of title and confirmation of possession and by amendment recovery of possession of Schedule- II land of the plaint, and also for declaring that the sale deed executed by defendant no. 5 - 2nd set Bimla Devi in favour of defendant 1st set is forged, fabricated, void and inoperative and further defendant 1st set have got no tittle and possession in disputed land. 4. The case of plaintiffs is that the disputed plot had been in the proprietary interest of proprietor of Taujee no 3894, in which ancestor of Bimala Devi, namely, Babu Kishundeo Singh had 10 annas share. It is further case of the plaintiffs that there had been “bakhudaha batwara” amongst the ex-landlord whereby the disputed land fell in the share of ancestor of plaintiffs and defendants 3rd set. It is further case of the plaintiffs that the ancestor of the plaintiffs had amalgamated the same with his plots nos. 3242, 3243, 3244, 3238 and 3240. After amalgamation partition amongst the plaintiffs and defendants 3rd set, who have possession on the sub-plots created therein, there is a private Rasta in the disputed land, it is further stated that one Vikrama Singh, one of the co- sharers of the proprietor who holds proprietary interest had submitted Return in respect of his share out of disputed plot having an area 8 katha 18 dhur rent of the same was fixed in his name, but wrongly khata no 120 was mentioned therein, whereas other jamabandi no. 113 connected with the khata no 120 is going on. 113 connected with the khata no 120 is going on. Further case of the plaintiffs is that Babu Kishundeo Singh committed wrong at the time of submission of Return in the name of his daughter, Bimala Devi conferring no title to the Bimla Devi, a ceiling proceeding was initiated against Bimla Devi. The land of Bimla Devi was published in the Bihar gazette on 06.05.1992, wherein the disputed plot does not find place, the said Bimala Devi has executed 4 sale deeds in the name of defendants nos. 1 to 4 without consideration and purchaser tried to take possession over the suit land. A proceeding under 144 Cr.P.C. was initiated thereafter plaintiffs have filed the suit. 5. The case of the defendants, in short, is that disputed land never fell in the share of plaintiffs and defendant 3rd set ancestor of Bimla Devi had no surplus land hence she was exempted form the ceiling proceeding and there was no publication of Gazette in the name of Bimla Devi. It is contended that plot under dispute fell in the share of Babu Sundar Singh, one of the proprietor having share up to extent of 10 annas. Babu Sundar Singh settled the land to Bimla Devi and submitted return in her name. On that basis Jamabandi no. 105 was created in the name of Bimla Devi with respect to 1 bigha 6 katha 2 dhur and on payment of rent , rent receipt was issued by the State of Bihar. Further case of the defendants is that she had possession over the suit land. On the request of villagers, the said Bimla Devi gave 15 feet land to the villagers for construction of village road, later on Government had made the metal road. Bimla Devi fell in need of money, who sold the land to defendant nos. 1 to 4 having taken consideration money and after sale of the land purchasers are in possession of the land and mutation has been done in the name of purchasers and from the date of purchase defendants are paying the rent to the State of Bihar. Defendants had extended shahan and in some parts, are growing vegetables. 1 to 4 having taken consideration money and after sale of the land purchasers are in possession of the land and mutation has been done in the name of purchasers and from the date of purchase defendants are paying the rent to the State of Bihar. Defendants had extended shahan and in some parts, are growing vegetables. Defendants have also put palani on the disputed land, but plaintiffs had set fire on 12-06- 2002 at 8.30 AM for which a criminal case was lodged bearing Siwan Muffasil case no 117/2002 and charge sheet has been submitted against all the accused persons, including the plaintiffs. 6. The learned Trial Court, after hearing the parties and considering the evidence adduced by the parties, dismissed the Suit, thereafter plaintiffs have filed Title Appeal no 59 of 2008. The Appellate Court allowed the appeal and reversed the judgment and decree of the trial court. 7. Being aggrieved by the aforesaid judgment and decree, the defendants-appellants filed the present Second Appeal which has been admitted on 12-02-2024. 8. The plaintiffs filed Execution Case for execution of a decree bearing Execution case no 3/2013 for recovery of possession over Schedule-II land of the plaint. 9. The present Interlocutory Application has been filed for staying the further proceeding of Execution Case No. 3 of 2013. 10. It is submitted that earlier appellants filed for staying the further proceeding of Execution case in this case, which was listed for hearing before learned Registrar General and after hearing, the learned Registrar General, rejected the stay petition and held that suit is for declaration of title and recovery of possession and there is nothing in the judgment to show that there is dwelling house of the appellants over the suit property rather there is hut over there. Learned counsel for the appellants submitted that land in question is admittedly in possession of the appellants over which one pucca room and palani (hut) exists over the disputed land over which appellants are living there. 11. On notice respondent nos. 1 to 9 appeared and filed their counter affidavit to I.A. No. 4568 of 2016 on 31-08-2016. It has contended that stay petition is not maintainable as the appeal is not admitted and the same prayer of the appellant was earlier rejected by learned Registrar General vide order dated 04.03.2016 passed in I.A. No. 6502 of 2015. 1 to 9 appeared and filed their counter affidavit to I.A. No. 4568 of 2016 on 31-08-2016. It has contended that stay petition is not maintainable as the appeal is not admitted and the same prayer of the appellant was earlier rejected by learned Registrar General vide order dated 04.03.2016 passed in I.A. No. 6502 of 2015. It is further submitted that appellants made construction over the disputed land, in Schedule- II of the plaint during the pendency of the suit. The case of the defendants is that they have purchased the land from the defendants 2nd set through 4 sale deeds dated 14.07.2001 and came in possession and they were cultivating these lands and growing vegetables and kept 3 huts for cattle and Nad, Khuta and other details have been described in impugned judgment. It is submitted that appellants have admitted in their written statement that their residential house standing over another plot in the Western side of Road and also admitted that after purchase they are growing vegetables over the disputed land. It is submitted that from perusal of the written statement it would transpire that there were no concrete constructions over the said suit land. The appellants have constructed the structure over the said lands during the pendency of the suit. It is submitted that the plaintiff-srespondents being bona fide title holder and in whose favour decree has been passed by the learned lower appellate Court and they have been waiting to enjoy the fruits of the decree. It is further alleged that appellants-defendants, during the pendency of the suit, have constructed pucca room and as such the appellants are not entitled to take the benefit of their own wrong. The appellants do not have any prima facie case in their favour. The appellants-defendants cannot take the benefit of construction which was constructed during pendency of the suit and same cannot be a ground to deny the fruit of decree to the plaintiffs-respondents. Learned counsel for the respondents further submitted that the appellant had earlier filed C.W.J.C. No 17781 of 2015 challenging the order dated 21.09.2015 passed by the Executing Court, whereby the learned Execution Court rejected the application of the appellants for dismissing the Execution Case and the same was dismissed by Hon'ble Court vide order dated 04.01.2016. Against that dismissal, appellants have not chosen to file any appeal before the Hon’ble Supreme Court. 12. Against that dismissal, appellants have not chosen to file any appeal before the Hon’ble Supreme Court. 12. Considering the submissions made by the parties, undisputedly, the suit property in question is in possession of the appellants and the present appeal is admitted for final adjudication. 13. Reliance has been placed in the case of Mool Chand Yadav and Another vs. Raza Buland Sugar Company Limited, Rampur and Others reported in (1982) 3 SCC 484 wherein, it has been held that – “During the pendency of the appeal, the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be over-looked. And it is not seriously disputed that the whole of the building, Hari Bhawan, except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the order dated August 6, 1982 directing the appellants to hand over the possession of the room to the respondents till the disposal of the first appeal.” 14. In another case the Hon’ble Supreme Court has dealt with Order XLI Rule 5 CPC i.e., Atma Ram Properties (P) Limited vs. Federal Motors (P) Limited reported in (2005) 1 SCC 705 . The Apex Court has held that – “Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be ‘substantial loss’ to the party applying for stay of execution within the meaning of cl.(a) of sub-rule (3) of Rule 5 of Order 41 of the Code. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature.” 15. In the case of Noor Bandi and others vs. Ajijul Haque and Others reported in (2017) 2 PLJR 54 in paragraph 5, this court has referred the order of the Hon’ble Supreme Court which reads as under: – “Having regard to the fact that Second Appeal is pending before the High Court and the appellant is in possession of the subject property, we are satisfied that if the decree of the First Appellate Court is allowed to be executed during pendency of the Second Appeal, the appellant may be put to irreparable loss and accordingly the Supreme Court allowed the appeal and directed that during the pendency of the Second Appeal status quo with regard to subject property shall be maintained.” 16. Considering the aforesaid decisions of the Hon’ble Supreme Court and the submissions made by the parties, this Court is of the view that the appellants have a prima facie case. 17. In such view of the matter, I am further of the view that if the stay is not granted, the same may cause irreparable loss to the appellants. 18. Accordingly, the further proceeding of Execution Case No. 03 of 2013, pending in the Court of Sub-Judge 8th Siwan, is stayed till the disposal of the Second Appeal. 19. Interlocutory Application No. 4568 of 2016 stands allowed.