High Court
Case Details
WP(C) 3061/2006 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI JUDGMENT AND ORDER (ORAL) In this writ petition, the petitioners are seeking the intervention of t his Court for directing the Collector, Dhubri District (respondent 2) to correct the land records in accordance with the precept dated 28-3-2003 issued by the E xecution court, namely, the learned Civil Judge No. 3, Dhubri) in Title Executio n Case No. 17 of 2002 in pursuance of the decree dated 5-4-1994 passed by the le arned Munsiff No. 2, Dhubri in Title Suit No. 206 of 1988 and. 02. The case of the petitioners is that their predecessor-in-interest after getting settlement under Gouripur Estate, had been in possession of the plot of land measuring 18 lecha under Dag No. 231, Khatian No. 1 situate at Bidyapara, D hubri town ( (cid:28)the suit land (cid:29) for short) with the houses standing thereon since th e three generation for over one hundred years, and had accordingly acquired a va lid title thereon. However, during the last settlement operation, the suit land was erroneously recorded as khas land which prompted the respondent No. 2 and 3 to threaten eviction of the predecessor-in-interest of the petitioners from the suit land. This compelled the predecessor-in-interest of the petitioners to inst itute T.S. No. 206 of 1988 against the State-respondents before the learned Muns iff No. 2, Dhubri for declaration of his title to the suit land, for permanent i njunction and for correction of the land record. During the pendency of the suit , the predecessor-in-interest of the petitioners died whereupon he was substitut ed by the petitioners as his legal heirs. After completion of the trial, the lea rned Munsiff passed the judgment dated 5-4-1994 decreeing the suit by declaring, among others, that the petitioners are the tenants of the State of Assam and ar e entitled to correction of the land record in the names of their names. 03. In terms of the aforesaid decree, the petitioners filed an execution pet ition being Title Execution No. 17/2002 before the learned Civil Judge (Junior D ivision) No. 3, Dhubri for correction of the land records in respect of the suit land. The learned Civil Judge by the order dated 28-3-2003 issued the precept u pon the respondent No. 2 for effecting correction of the land records pertaining to the suit land in accordance with the decree and submit compliance report to him on or before 28-4-2003. It is the case of the petitioners that even though t he respondent No. 2 received the precept, he has not corrected the land records till now. The petitioners also personally approached the respondent No. 2 from t ime to time to that effect, but to no avail. When the respondent No. 2 did not c ause correction of the land records even after the lapse of considerable period of time, they are approaching this Court by way of this writ petition for approp riate directions.
Legal Reasoning
No affidavit-in-opposition is filed by any of the respondent authorities 04. . However, they contest the writ petition through Mr. D. Bora, the learned Stand ing Counsel for the Revenue Department. After hearing both Mr. HRA Choudhury, th e learned senior counsel for the petitioners, and the learned Standing Counsel, I am of the view that the question which falls for consideration in this writ pe tition is whether, on the undisputed facts on record, a writ of mandamus can be issued requiring the respondent No. 2 to carry out the precept issued by the lea rned Civil Judge (Junior Division) (Execution Court) in accordance with the decr ee passed by a competent civil court of jurisdiction? At this stage, it may be n oticed that none of the defendants including the State of Assam has never challe nged the decree in question at any time so much so that the decree can now be sa id to have attained finality. It may also be noticed that in the title suit, the State of Assam was represented by none other than the respondent No. 2. 05. In the instant case, the remedy sought for by the petitioners is correct ion of the land records in respect of the suit land in their names and to issue Patta therefor. Normally, a decree passed by a competent civil court of jurisdic tion is to be executed by the Execution Court in accordance with the applicable provisions of Order 21, Code of Civil Procedure. Though Order 21 is the longest Order in the whole Schedule to the Code and consists of 106 rules, no specific p rovision is provided for therein for execution of a decree for correction of the land record by the Revenue authorities. Order 21, Rule 30 deals with execution of a decree for payment of money, while Order 21, Rule 31 deals with a decree fo r specific movable property. Order 21, Rule 32 is about execution of a decree fo r specific performance, restitution of conjugal rights, or for injunction wherea s Order 21, Rule 34 provides for a decree for execution of document, or endorsem ent of negotiable instrument. Then, there is Order 21, Rule 35, which is about e xecution of decree for delivery of immovable property, while Order 21, Rule 36 d eals with execution of decree for delivery of immovable property when in occupan cy of tenant. Even after reading and re-reading the remaining provisions of Order 21, 06. I am unable to find any provision for execution of decree of the nature involved in this writ petition. Therefore, it can be said with reasonable certainty that no statutory remedy is provided for by Code of Civil Procedure or otherwise for execution of decree for correction of land records and for issue of Patta in th e name of a decree holder. It must be remembered that the petitioners have by me ans of the decree in question established an enforceable right to the suit land. In the absence of statutory remedy, whether the petitioners should be told off at the gate for enforcement of their established right to the suit land under Ar ticle 226 of the Constitution? True, Article 226 of the Constitution is not inte nded to provide an alternative method of redress to normal process of a decision in action brought in the usual course established by law. But then, mandamus is a supplementary remedy, the use of which is made where a person has a legal rig ht, and has no other appropriate remedy to redress his grievance or to enforce h is right. Here is a case where the petitioners have been granted a decree by a civ 07. il court of competent jurisdiction to have the land records in respect of the su it land entered in their names and the patta issued therefor. Since there is no provision for execution of this type of decree provided for by the Code of Civil Procedure, it cannot be said that they have no remedy: there is no wrong withou t remedy. The respondent No. 2 has the statutory duty to record the names of per sons in the land records in respect of a land if the petitioners have establishe d their legal right over the suit land. In the instant case, as already found by me, the learned Civil Judge (Junior Division), Dhubri has decreed that the peti tioners are entitled to have their names recorded in the land record in respect of the suit land and to have Patta issued in their names. As no appeal or revisi on against the decree of the learned Civil Judge is preferred by the State-respo ndents or, for that matter, by any other person, the decree has now attained fin ality. Therefore, no other name except the names of the petitioners can be lawfu lly recorded in the land records in respect of the suit land. The respondent No. 2 has undoubtedly failed to perform the statutory duty imposed upon him by law. This warrants the interference of this Court. 08. For the reasons stated in the foregoing, this writ petition is allowed. Let a mandamus issue directing the respondent No. 2 to correct the land records in respect of the suit land in the names of the petitioners in terms of the Prec ept dated 28-3-2003 issued by the Execution Court (Court of the Learned Civil No . 3, Dhubri) in Title Execution Case No. 17/2002 arising out of the decree dated 5-4-1994 passed by the learned Munsiff/Dhubri in Title Suit No. 206/88 and let a Patta be issued in their names within a period of one month from the date of r eceipt of this judgment. No costs.