Execution Case No. 12 of 2009 · High Court · 2012

Land under occupation of Shri Khanka East: West: Baruah National Highway No. 37 Land under occupation of Shri Hari Das & Debar Ali

3. A suit being Title Suit No. 187 of 2009 was filed by Md. Mamtaj Ali, who has been arrayed as opposite party No. 1 herein against the opposite party No. 2, Smt. Nalini Moral on the file of the Civil Judge No. 1 Kamrup at Guwahati see king a decree under Section 6 of the Specific Relief Act for recovery of khas po ssession of the suit land described in the schedule and for injunction. But the petitioner was not arrayed as party defendant in the suit and the plaint would r eveal that Smti Nalini Moral had sold out 18 Lechas of land out of the land meas uring 1 Bigha 1 Katha 13 Lechas to the plaintiff Md. Mantaj Ali on 09.05.2008 by a registered sale deed being sale deed No. 6964 of 2008 and delivered khas poss ession on the same day and since then he is in possession of the suit land till 05.05.2009 wherefrom he was illegally dispossessed and hence the suit. The suit land as described in the plaint wherefrom the decree for khas p ossession was sought, reads as follows: - SCHEDULE A plot of land measuring 18 (eighteen) lechas covered by Dag No. 546, K. P. Patta No. 486 of Revenue village Azara, Mouza - Ramcharani, District Kamrup, Assam along with two tinchali house and bounded by: - North: South: East: West: Land of Dr. Kumudeswar Baruah Land of Shri Bishwajyoti Pathak National Highway No. 37 Land of Md. Debar Ali

4. The Title Suit was filed on 07.08.2009 which, however, was transferred t o the Court of learned Civil Judge No. 2, Kamrup, for disposal and the learned t rial Court on 10.08.2009 issued summons to the defendant fixing 27.08.2009 for S .R. and W.S. On 27.08.2009, the Court on perusal of the report of the process se rver which indicates that the summons was received by the defendant herself and since the defendant neither appeared nor filed written statement, the learned tr ial Court fixed 10.09.2009 for ex-parte hearing. On 10.09.2009 the plaintiff sub mitted evidence on affidavit along with documents. Accordingly next date was fix ed on 15.09.2009 for argument. On 15.09.2009 the argument was heard fixing 24.09 .2009 for judgment and on 24.09.2009 the judgment and decree was passed.

5. The ex parte decree so obtained put to execution being Title Execution C ase No. 12 of 2009 and on 05.12.2009 the petitioner was evicted from the entire land measuring 2 Kathas 5 Lechas though the decretal land was about 18 lechas an d in consequence thereof an FIR was filed on 05.12.2009 against the forceful evi ction from his land and on enquiry he came to know that a decree was passed in T itle Suit No. 187 of 2009 whereof he was evicted from the land, in question, in pursuance of the Title Execution Case No. 12 of 2009.

6. Being faced with such a situation the petitioner on 08.12.2009 filed an application before the learned trial Court under Section 47, 144 read with Secti on 151 of the Code for restitution of the petitioner over his own land measuring 2 Kathas 5 Lechas described in the schedule of the application being Misc. (J) Case No. 263 of 2009 and upon hearing the petitioner the learned trial Court iss ued show cause notice to the opposite party No. 1 vide order dated 09.12.2009 to show cause as to why the petitioner should not be put in possession from where he has been dispossessed and by the said order the writ of execution was recalle d and the execution of Title Execution Case No. 12 of 2009 was stayed till 15.12 .2009.

7. Thereafter on 04.01.2010 the petitioner filed an application for convert ing the application being registered as Misc. (J) Case No. 263 of 2009 to an app lication under Order 21 Rule 97, 98 and 100 of the Code read with Section 47, 14 4 and 151 of the Code and the same was allowed. The petitioner simultaneously ha s also filed an application under Order 39, Rule 1 and 2 of the Code being Misc. (J) Case No. 12 of 2010 and by an order dated 25.01.2010 an ex parte order of i njunction was passed which, however, was dismissed on 25.02.2010 for non complia nce with the provisions of Order 39 Rule 3 of the Code, though the same is direc tory and not mandatory. The petitioner has already taken steps to prefer an appe al against the order dated 25.02.2010. The petitioner has also filed an applicat ion under Order 26 Rule 9 of the Code on 25.02.2010 for appointment of a Commiss ioner to ascertain as to whether the decreetal land and the land upon which the execution undertaken was similar or not, whereon objection was called for but be fore the objection was heard, the learned trial Court accepted the report of the Civil Nazir dated 05.12.2009 holding that the decree has been executed to the s atisfaction of the decree holder thereby the case stands disposed of on 25.02.20 10 against which the instant revision petition has been filed questioning the le gality and validity of the order passed by the learned trial Court in Title Exec ution case No. 12 of 2009.

8. Heard Mr. K Bhattacharjee, learned counsel appearing for the petitioner. Also heard Mr. B Kalita, learned Senior counsel assisted by Ms. P Bora, Advocat e, appearing for the opposite party No.1. Criticizing the order so passed by the learned trial Court, Mr. Bhattach 9. arjee, learned counsel appearing for the petitioner would contend that after enf orcement of the Civil Procedure Code (Amendment) Act, 1976 all questions relatin g to right, title and interest on the property arising between the parties to th e proceeding on an application under Order 21 Rule 97, 98 and 100 has to be dete rmined by the Court dealing with such application whereas the learned trial Cour t vide order dated 08.01.2010 directed to maintain status quo and by another ord er dated 25.02.2010 the learned trial Court has passed an order to the effect th at necessary order shall be passed on appearance of all the opposite parties fix ing 03.04.2010, whereas, without deciding the case under Order 21 Rule 97, 98 an d 100 of the Code, the case was disposed of thereby committed an illegality not vested in it by law which require interference under revisional jurisdiction.

10. Mr. Bhattacharjee, learned counsel has further submitted that a conjoint reading of Rule 97, 98, 99, 100 and 101 of Order 21 of the Code, it is clear th at the entire set of rules provide a procedure for the benefit of such person ag ainst whom, no decree is passed, yet he is being subjected to the execution of a decree where in obtaining possession, the holder of a decree dispossess any per son other than the judgment debtor, such person may apply to the Court for an in vestigation under the Rules, whereas the leaned trial Court without determining the question of right, title and interest of the parties though raised under the aforesaid Rules, had disposed of the case holding that the decree has been exec uted to the satisfaction of decree holder which tantamounts to exercise a jurisd iction not vested in it by law and hence required adjudication by this Court und er revisional jurisdiction.

11. In reply to the question raised, Mr. Kalita, learned Senior counsel appe aring for the opposite party No. 1 would contend that the record would reveal th at he has purchased a plot of land measuring 18 lechas for valuable consideratio n on execution of a deed of sale executed by the defendant but subsequently he w as dispossessed illegally wherefor a suit was filed and decree has been obtained and in execution of decree he has been put in possession and as such there is n o illegality committed by the learned trial Court. Therefore, no interference is called for under revisional jurisdiction. Heard the learned counsel for the contesting parties. Perused the averme 12. nts along with annexures appended with the revision petition including the recor ds of the case. The record of the case would reveal the following admitted facts : - i) ered by Dag nos. 435 and 546 which is bounded as follows: - The petitioner was in possession of land measuring 2 Kathas 5 Lechas cov North: South: East: West: Land under the occupation of Ranjan Medhi. Land under the occupation of Khanka Baruah. National Highway No. 37. Land under the occupation of Shri Hari Das and Debar Ali. ii) The opposite party No. 1 Md. Mamtaj Ali purchased a plot of land measuri ng 18 (eighteen) Lechas covered by Dag No. 546, K.P. Patta No. 486 out of land m easuring 1 Bigha 1 Katha 13 Lechas from the opposite party No. 2 on 09.05.2008 b y registered sale deed No. 6964 of 2008 and possession was delivered. But he was illegally dispossessed on 06.05.2009. The schedule of land wherefrom he was dis possessed is bounded by: - North: South: East: West: Land of Dr. Kumudeswar Baruah Land of Shri Bishwajyoti Pathak N.H. No. 37 Land of Md. Debar Ali. iii) The opposite party No. 1 on being illegally dispossessed filed a case be ing Title Suit No. 187 of 2009 against the opposite party No. 2 under Section 6 of the Specific Relief Act without arraying the petitioner as party defendant in the suit. The suit was decreed ex parte on 24.09.2009 and put to execution being T iv) itle Execution Case No. 12 of 2009 and on 05.12.2009 the revision petitioner was dispossessed from the land under his occupation. v) The petitioner filed an application under Section 47, 144 and 151 of the Code being Misc. (J) Case No. 263 of 2009 and subsequently applied for conversi on of the case under Order 21 Rule 97, 98 and 100 of the Code and consequently t hereupon the learned Court entertained the application directing to maintain sta tus quo in respect of the land vide order dated 08.01.2010 fixing 25.01.2010. vi) Subsequently on 25.01.2010 the petitioner has filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code which was registered as Misc. (J) Case No. 12 of 2010 and an ex parte order of injunction was passed on 25.01.2010. But the same was dismissed on 25.02.2010 due to non-compliance of t he provision of Order 39 Rule 3 of the Code. vii) The petitioner has filed an application under Order 26 Rule 9 of the Cod e wherein the learned trial Court on 25.02.2010 passed an order that necessary o rder shall be passed in the case on completion of notices upon the opposite part y nos. 2, 3 and 4 fixing 03.04.2010. viii) The learned Court on 25.02.2010 disposed of the Execution Case holding t hat the decree has been executed as it appears from the repot of the Civil Nazir without adjudicating the Misc. (J) Case No. 263 of 2009 filed under Order 21 Ru le 97, 98 and 100 of the Code.

13. In the light of the above factual background the Court is asked to answe r as to whether the dispossession of the petitioner from the land under his occu pation is permissible under the law. Section 111 of the Transfer of Property Act , 1882 envisaged that person in possession of the property cannot be dispossesse d without due process of law. The petitioner was in possession of a plot of land measuring 2 Kathas 5 Lechas belonging to Government as admitted by himself and continued in possession and enjoyment of the land and the said fact is known to the opposite parties. Suit for specific performance under section 6 of the Speci fic Relief Act seeking a decree for Khas possession and decree obtained become f inal. But the opposite party No. 1 has not impleaded the petitioner as party def endant to the suit for specific relief nor a decree personally against him obtai ned in any other independent proceedings. Therefore, when the petitioner was dis possessed in execution proceeding and he filed a petition under Order 21 Rule 97 , 98 and 100 of the Code claiming adjudication of his right to remain in possess ion, it is the duty of the learned trial Court to adjudicate the matter but sinc e the learned trial Court did not adjudicate the matter, his dispossession from the land, in question, without any decree or order of eviction held to be unlawf ul being without any due process of law and as such the order dated 25.02.2010 i mpugned in the revision petition is required to be interfered with which the Cou rt hereby do.

14. Considering the matter in its entirety, the Court is inclined to set asi de the order dated 25.02.2010 passed by the learned trial Court in Title Executi on No. 12 of 2009 thereby remanding the case to the learned trial Court for adju dicating the case as required under the law considering the provisions of Order 21 Rule 97. 98 and 100 of the Code in Misc. (J) Case No. 263 of 2009 afresh. The learned trial Court is at liberty to decide as to whether the petitioner should be allowed to remain in possession till Misc. (J) Case No. 263 of 2009 is dispo sed of and/or the learned trial Court may put the petitioner in possession as re quired under Order 21 of the Code.

15. In the result, the revision petition is accepted setting aside the order dated 25.02.2010 passed in Title Execution No. 12 of 2009 remanding the case to the learned trial court to adjudicate the application filed under Order 21 Rule 97, 98 and 100 of the Code as indicated above. The parties are left to bear the ir own costs.

16. Send down the lower Court record immediately. As the learned counsel app earing for the parties are present in the Court, parties are directed to appear before the learned Court below on or before 29th February, 2012 for receiving ne cessary order from the Court.