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2025 DIGILAW 551 (TS)

Thakur Harinath Singh v. Thakur Ratna Baidied

2025-05-01

K.SUJANA

body2025
ORDER : K. SUJANA, J. Since the issue involved in all these criminal petitions is one and the same, they are being heard together and are being decided by way of this common order. 2. C.R.P.No.3355 of 2018 is filed challenging the order dated 23.03.2018 passed in E.P.No.1 of 2009 in O.S.No.65 of 1976 by the learned Senior Civil Judge, Nalgonda; C.R.P.No.2030 of 2018 is filed challenging the order dated 23.01.2018 passed in E.A.No.173 of 2017 in E.P.No.01 of 2009 by the learned Senior Civil Judge, Nalgonda. 3. The brief facts of the case are that the Revision Petitioners filed O.S.No.65 of 1976 seeking recovery of possession of properties listed in “A” and “B” schedule and for rectification of records. This suit was clubbed with O.S.Nos.245 of 1978 and 53 of 1979. By a common judgment dated 31.03.1986, O.S.No.65 of 1976 was decreed in favour of the Petitioners, while the other two suits were dismissed. Respondent No.1 filed appeals (A.S.Nos.1671 and 1729 of 1986) before this Court, which were also dismissed on 19.06.2000. To enforce the decree, the petitioners initially filed E.P. under S.R. No. 53 of 2002, which was returned due to lack of boundary details of the property. Another E.P.No. 72 of 2003 was filed but closed on 14.11.2005 as the warrant for delivery was returned unexecuted for want of proper property description. Subsequently, E.P.No.1 of 2009 was filed. An Advocate Commissioner was appointed but failed to complete the execution. Later, E.A.No.173 of 2017 was filed for appointment of a new Commissioner to locate “A” schedule property, but it was dismissed due to inadequate boundary details. Finally, E.P.No.01 of 2009 was filed, but the trial Court dismissed the execution with respect to the “A” schedule property, citing inability to identify it based on existing records and commissioner reports. Challenging the said orders, the present civil revision petitions are filed. 4. Heard Sri S. Balchand, learned counsel appearing on behalf of the petitioners. Though notice served upon the respondents, none appeared on their behalf. 5. Learned counsel for the Petitioners submitted that the order passed by the trial Court is contrary to both facts and settled principles of law. Challenging the said orders, the present civil revision petitions are filed. 4. Heard Sri S. Balchand, learned counsel appearing on behalf of the petitioners. Though notice served upon the respondents, none appeared on their behalf. 5. Learned counsel for the Petitioners submitted that the order passed by the trial Court is contrary to both facts and settled principles of law. It is contended that the trial Court has failed to appreciate that in matters involving disputes regarding the identity of the property, it is a well-established principle that appointment of an Advocate-Commissioner, even with the assistance of a qualified surveyor, is not only permissible but necessary, and does not amount to collection of evidence. The trial Court has erroneously dismissed E.A.No.173 of 2017 without due consideration of this principle. He further submitted that the first execution petition filed in the year 2002 was returned at the S.R. stage as not executable, and the second E.P.No.72 of 2003 was closed without effective adjudication on the ground of absence of a field assistant’s report. He strongly contended that the executing Court cannot question the validity or executability of a decree and must only facilitate its execution, and the observations made by the executing Court questioning the decree and lamenting the dismissal of the appeal are both misplaced and beyond its jurisdiction. 6. Learned counsel for the petitioner further submitted that at the time of institution of the suit O.S.No.65 of 1976, the petitioners were minors represented by their next friend, and hence they were unaware of specific boundary details. The properties involved are agricultural lands in different survey numbers, often without clear boundaries in official revenue records. The learned counsel argues that the trial Court has ignored the absence of well-maintained revenue records and the practical difficulties in demarcation, which could have been resolved by appointing a Commissioner. The Petitioners also brought to the notice of the trial Court that in earlier proceedings, including E.P.No.72 of 2003, the trial Court had directed delivery of possession by the Bailiff, but the execution was stalled without granting sufficient opportunity to the Petitioners. 7. Learned counsel for the petitioners further contended that an Advocate-Commissioner appointed in E.P.No.1 of 2009, in coordination with Revenue Officials, had partly identified the "A" schedule lands in Ammagudem Village, and a surveyor from the Survey Department was also deputed for this purpose. 7. Learned counsel for the petitioners further contended that an Advocate-Commissioner appointed in E.P.No.1 of 2009, in coordination with Revenue Officials, had partly identified the "A" schedule lands in Ammagudem Village, and a surveyor from the Survey Department was also deputed for this purpose. Despite this progress, the Advocate-Commissioner failed to file a complete report, and instead of summoning the report or directing further survey, the trial Court summarily dismissed the petition. The learned counsel also refers to tippans and other revenue records like pahanis and village maps which, if relied upon correctly, would enable localization of the "A" schedule property. He asserted that the executing Court erred in concluding that the absence of detailed boundaries renders the decree inexecutable and failed to take effective steps to ensure the petitioners enjoy the fruits of the decree. 8. He further submitted that the objections raised by respondent No.4 are not tenable as the appeal filed by the respondents against the decree had already been dismissed and most respondents remained ex parte during execution. The trial Court has misread material evidence and ignored procedural fairness, especially given that the memo filed by the Advocate-Commissioner did not state inability to identify the property. Therefore, he prayed the Court to set aside the orders of the trial Court by allowing this Civil Revision Petitions. 9. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it appears that the issue revolves around the executability of the decree passed in O.S.No.65 of 1976, particularly with reference to the identification and delivery of possession of the "A" schedule property described therein. 10. The chronology of events, starting from the institution of the execution petition under S.R.No.53 of 2002, followed by E.P.No.72 of 2003 and the present E.P.No.1 of 2009, clearly reveals the persistent efforts made by the decree holders to enforce the decree. However, these petitions were dismissed or returned primarily on the ground of insufficient or imprecise boundary descriptions of the subject property. 11. It is a settled proposition of law that the executing Court cannot go behind the decree or sit in appeal over it. However, these petitions were dismissed or returned primarily on the ground of insufficient or imprecise boundary descriptions of the subject property. 11. It is a settled proposition of law that the executing Court cannot go behind the decree or sit in appeal over it. Once a decree is passed and has attained finality, the duty of the executing Court is to give effect to the decree to the extent possible, without embarking upon an adjudication of the merits of the original suit or questioning the correctness of the decree. 12. In the instant case, the trial Court appears to have adopted a hyper-technical approach in refusing to proceed with execution solely on the ground of lack of specific boundary details. The finding that the property is incapable of identification based on the decree is not supported by any detailed examination of the available evidence, such as revenue records, pahanis, village maps, or tippans. 13. Therefore, this Court is of the opinion and considering the submissions made by the learned counsel for the petitioners that agricultural lands, particularly those dating back several decades, often suffer from imprecise demarcations in revenue records. In such scenarios, the appointment of an Advocate-Commissioner, with the assistance of competent officials including surveyors, is not only permissible but necessary. The executing Court erred in treating such an exercise as a means of collecting evidence, whereas in reality, it is a legitimate step to aid the identification and execution of the decree. 14. The material placed on record indicates that an earlier Advocate-Commissioner had, with the help of Revenue Officials and a Government Surveyor, partially identified the "A" schedule lands. However, instead of pursuing this further by summoning the Commissioner or directing a follow-up inspection, the executing Court dismissed the application. Such an approach does not align with the well-settled principle that the executing Court must endeavor to ensure that the decree holder reaps the fruits of the decree. 15. The objections raised by the respondents before the trial Court are without merit, particularly in light of the dismissal of their appeals and the fact that most of them remained ex parte in the execution proceedings. The failure of the Advocate-Commissioner to submit a complete report should have prompted the executing Court to call for compliance or appoint a new Commissioner, rather than bringing the execution to a halt. 16. The failure of the Advocate-Commissioner to submit a complete report should have prompted the executing Court to call for compliance or appoint a new Commissioner, rather than bringing the execution to a halt. 16. In view of the above discussion, this Court is of the considered opinion that the orders passed by the executing Court suffer from legal infirmity and procedural impropriety. The executing Court ought to have appointed a fresh Advocate-Commissioner for proper identification of the EP schedule property, with the aid of revenue records and officials. 17. Accordingly, the Civil Revision Petitions are allowed. The impugned orders dated 23.01.2018 and 23.03.2018 passed in E.A.No.173 of 2017 and E.P.No.1 of 2009 in O.S.No.65 of 1976 respectively, are hereby set aside. The trial Court is directed to appoint an Advocate-Commissioner, preferably with the assistance of an official Surveyor and concerned revenue authorities, to inspect and identify the "A" schedule property as per the decree and file a comprehensive report within a stipulated time frame. The executing Court shall thereafter proceed in accordance with law to effectuate the decree. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.