High Court
Case Details
CRP 364/2008 BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA
Legal Reasoning
Heard Mr. S.K. Ghosh, learned counsel appearing for the petitioners as well as M r. P.K. Deka, learned counsel for the respondent. 2. This is a petition under Section 115 of CPC against the order da ted 14.08.2008 as passed by the Munsiff No.1, Hailakandi in Misc. Case No.30/200 6, rejecting the prayer and objection as incorporated in the petition filed unde r Section 47 of CPC. 3. The defendant instituted the execution proceeding being T.Ex. Ca se No.09/1999 for execution of the decree dated 19.12.1997 as passed in Title Su it No.99/1994. The decree is also for recovery of possession of the land pertain ing to the Schedule III of the decree by demolishing ekchali and removing all ob structions. The decree further declared right, title and interest of the plainti ff over the Schedule-I land and confirmed the possession over 3 chattaks of land described in Schedule II land. 4. By filing the objection under Section 47 of CPC the petitioners claimed inter alia that out of 12 chattak of land pertaining to the schedules ap pended to the plaint and the decree, 3 chattak land has been described in such a manner that the petitioners are apprehensive that at the time of execution the land belonging to the petitioners beyond the decreetal land would be incorporate d in the decreetal land. Thus, they made a prayer for appointment of Amin Commis sioner to prepare the sketch map after field verification so that danger to thei r property cannot occur. 5. Section 47 of CPC provides that all questions arising between th e parties to the suit in which the decree was passed, or their representatives a nd relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. It has been further explained that all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree wit hin the meaning of the section. While refuting the submissions of Mr. Ghosh, Mr. Deka, learned c 6. ounsel appearing for the respondent, made a reference to the judgment and order dated 19.09.2006 as passed in RSA No.35/1999 and submitted that similar objectio ns and apprehensions were also taken and projected by the petitioners in the Sec ond Appeal. While dismissing the Second Appeal, this court has elaborately dwell ed upon the said objections in paragraphs 9, 10 and 13. For appreciation, those passages are extracted hereunder : (cid:28)9. our of the plaintiff or the proforma defendant No.7, the same remained unquestio nable in his absence in this proceeding. The record of the courts below also dis close that none of the defendants presented themselves as witness in support of their claim. In fact they have produced two different persons to support their c ase i.e. DW.1 and DW.2 which legitimately can be said to have raised an adverse presumption against the defendant U/s 114(g) of the Indian Evidence Act. Mr. Cho udhury tried to convince me that as the defendants have appeared in the witness box in the Misc. Case arising out of the suit and no such presumption should not be drawn. But the Misc. case is a separate proceeding having been filed U/Order 41 Rule 19 CPC arising out of an application to restore the appeal that was dis missed for non appearance of the respondent, the proceeding of the said Misc. ca Having pleaded in such a situation, the finding arrived at either in fav se has come to an end after passing a final order thereon on without having any affect on the merit of the suit. 10. As disclosed and on perusal of the written statement filed by the appell ant as pointed out above, the defendants have not set up any title over the suit land upon them. They have also not mentioned about the purchase of the land vid e Ext.C. From the schedule appended to Ext.C, it cannot be confirmed about the c omplete identity of the suit land with that of schedule in Ext.C. None of the de fendants has come to depose that they acquired such right by virtue of said sale deed Ext.C sale deed. On the contrary the plaintiff has produced the Ext.4, cop y of sale deed, by which he purchased the suit land through Proforma defendant N o.7. The learned first appellant court also after adequate consideration of t 13. he materials available on record and having held the right, title and interest o ver the suit land decided the issue No.3 and 4 in favour of the plaintiff. In de ciding issue No.5 the learned first appellate court has found that the plaintiff was all along in possession of the suit land. In deciding the issue No.1 the le arned first appellate court has also found that the defendants dispossessed the plaintiff from the 3rd schedule of the suit land and apprehended that they might be dispossessed from the other part of the suit land also. Considering the evid ence of DW 2, the appellate court while deciding the issue No.5 held that in cro ss examination the defendant No.2 admitted the possession of the plaintiff for t he last 12 years. On this finding and after careful analysis of the materials av ailable on record goes to show from the construction of the said Chali over the schedule 3 land that the plaintiff was in possession of the suit land. On such f actual findings the learned appellate court did not interfere with the judgment passed by the learned trial court. (cid:29) 7. It appears from para-10 of the said judgment that the petitioner s have not mentioned about the purchase of the land by Ext.-C and from the sched ule appended to Ext.C, the identity of the suit land cannot be ascertained. None of the petitioners has come up with a plea that they acquired such right by vir tue of the said Ext.-C sale deed. On the contrary, the respondent, the plaintiff in the suit, produced the copy of the sale deed, Ext.-4, by which he purchased the suit land through the proforma-defendant No.7. It has been further observed in the said judgment and order that on careful analysis of the materials availab le on records, it goes to show that the plaintiff was in possession of the suit land (the schedule III) for more than 12 years till dispossession by the judgmen t debtor. The said fact as writ large in the evidence moved the appellate courts not to interfere with the judgment passed by the trial court. 8. On the face of the rival contentions, this court has considered the impugned order whereby the prayer for appointment of the Amin Commissioner h as been rejected. There cannot be any dispute that the executing court is seized of the authority and jurisdiction to appoint the Survey/Amin Commissioner for m easuring or for identifying the decreetal land before or during execution with a view to protect the properties beyond the decreetal land or for other purposes. In this view of the matter, the decision of the High Court of Kerala in P.N. Ku rian Vs. Thulasidas, as reported in AIR 2003 Kerala 288 can be referred to, wher e it has been held as under : (cid:28)In Madhukar Trimbak Gore’s case, supra, AIR 1983 Bombay 277 the Court was exami ning the scope of order XXIII, Rule 3, C.P.C. That was a case where a compromise decree was sought to be executed. The executing court held that decree was not executable on the ground that the terms of the compromise contained in the decre e did not relate to the suit which was for permanent injunction and such a decre e could not be made because of the provisions contained in Order XXIII, Rule 3. Further it was also held that the decree could not be executed for the reason th at the house to which it related was not in existence. Reversing the decision of the executing court, the High Court held that the executing Court could not go behind the decree. It was also held that when in execution a question arises as to the identity of the property of which possession has to be delivered to the d ecree holder, obviously such a question would relate to the execution of the dec ree and it would be for the executing Court to decide it as required by sub-sect ion (1) of Section 47 of Code. The Court held that the executing Court would do well to hold proper enquiry and determine the question with regard to the identi ty of the property which has to hold proper enquiry and determine the question w ith regard to the identity of the property which has to be delivered to the appe llant. Similar is the view taken in Rahim Bux v. Moham-mad Shafi, AIR 1971 AII 1 6. (cid:29) The executing court, while discharging the objection as raised u 9. nder Section 47 of the CPC, held as under : (cid:28)Though petitioner alleged that the RS. 46 patta 154 Dag for 1 katha 4 chatak la nd for registered deed dated 21.10.1983 this court having passed decree which la nd is not protected but no evidence led by him in this regard. Mere submission o f fact substantiated by evidence, step on the part of petitioner do not give any benefit to him. Once petitioner alleged the burden on him to prove his own case on his own shoulder. Plaintif (DH) get how many quantum of land exactly mention ed in his plaint. Petitioner also stated that for R.S. 46 no. patta in 154 dag f or 1 K 4 Chatak land court has not give judgment, whereas petitioner J.D. No. 1, 2,5 further enjoying by purchase. Hence J.D./petitioner prayed for Amin Commissi oner Survey and for dismissal of the execution case. (cid:29) As such, the consideration was not confined to the findings in t he suit or appeals. 10. On appreciation of the reasons so assigned by the executing cour t in the impugned order dated 14.08.2008, this court is of the view that the que stion as raised in the objection filed under Section 47 of CPC has been adequate ly attended to. Hence this court is not inclined to disturb the impugned order. It appeared to this court that the Schedule-III land which is to be recovered fr om possession of the petitioners has been well delineated in the decree. As such , there is no requirement of the Amin Commissioner as prayed, for executing the decree. But, the executing court shall take all cautions so that no land beyond the land as described in the Schedule-III of the decree is taken possession of w hile executing the decree. It is needless to say that if in any land beyond the decreetal land is seized from the possession of any person including the petitio ners, they have got the statutory remedy. The executing court will be at liberty to appoint the Commissioner for executing the decree to ensure that such dispos session does not take place. 11. s made hereinabove. This petition is rejected, however, subject to the observation a Send down the LCRs forthwith.