1. Nurul Hoda Ansari, s/o late Reyasat Hussain R/o Vill- Kusha Po+Ps- Pandu, Dist v. 1. Fulmani Devi, w/o Ramnath Ram, R/o Vill.- Pandu, Po-Pandu, Ps- Bishrampur, Dist.- Palamau
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P No. 317 of 2024 --------------- 1. Nurul Hoda Ansari, s/o late Reyasat Hussain R/o Vill- Kusha Po+Ps- Pandu, Dist.- Palamu, Jharkhand 2. Md. Muslim Ansari, s/o Md. Rahim Ansari, R/o Vill.-Musikhap, Po+Ps- Pandu, Dist.- Palamau, Jharkhand ........Petitioners Versus 1. Fulmani Devi, w/o Ramnath Ram, R/o Vill.- Pandu, Po-Pandu, Ps- Bishrampur, Dist.- Palamau, Jharkhand………..Plaintiff/Opposite Party 2. Najma Khatoon d/o Jalil Ahmad R/o Vill.- Pandu, Po-Pandu, Ps- Bishrampur, Dist.- Palamau, Jharkhand 3. Kutubuddin s/o late Habib Mian R/o Vill.- Pandu, Po-Pandu, Ps- Bishrampur, Dist.- Palamau, Jharkhand 4. Allauddin Mian 5. Iqbal Mian Both sons of Habib Mian 6. Jalil Ahmad s/o Gaffar Mian, All residents of village-Pandu, Po-Pandu, Ps-Bishrampur, Dist.- Palamau, Jharkhand 7. Reyajuddin Mian s/o Jumrati Mian, Po-Pandu, Ps-Bishrampur, Dist.- Palamau, Jharkhand ….............. Defendants/ Opposite Parties CORAM: HON'BLE THE ACTING CHIEF JUSTICE For the Petitioners : Mr. Amar Kumar Sinha, Advocate Order No.4/Dated: 16th August 2024 Prayer This petition under Article 227 of the Constitution of India has been filed for issuance of a direction for quashing/setting aside the order dated 17th February 2024 passed by the learned Civil Judge, Senior Division-VII, Palamau at Daltonganj in Misc. Case No.03 of 2012 whereby and whereunder the petition filed by the petitioners on 1st August 2023 under Order XXVI Rule 9 r/w section 151 of the CPC for appointment of Survey Knowing Pleader Commissioner was rejected. Factual Matrix 2. as under: The brief facts of the case as pleaded in the present petition are The case of the petitioners in brief is that the plaintiff, namely, Fulmani Devi who is O.P No.1 herein, filed a Partition Suit No. 37 of 2006 in the Court of learned Sub-Judge- I, at Palamau praying therein a decree 2 claiming partition of 09 decimals of land purchased by the plaintiff out of the lands measuring 0.34 acres of Plot No. 756A and 0.48 acres of Plot No.756B of Khata No.184 situated at Village-Pandu, P.O.-Pandu, P.S.- Bishrampur, District-Palamau by virtue of a registered sale-deed in the year 2003 and for appointment of Advocate Commissioner to prepare Takhta beside other reliefs. The said Partition Suit was decreed by terms of the judgment and decree dated 1st October 2010 and, accordingly, final decree was prepared on the basis of the report submitted by the Advocate Commissioner and on the basis of that final decree, Execution Case No. 12 of 2011 was filed. Reyasat Hussain, who was the father of petitioner no.1 herein, purchased the lands measuring 0.07 acres out of Plot No. 756A of Khata No.184 situated at Mouza-Pandu, P.S.-Bishrampur, District-Palamau by virtue of a registered sale-deed dated 4th January 2002 with specific boundary mentioned therein and the petitioner no.2, namely, Md. Muslim Ansari purchased the lands measuring an area of 0.03 acres of land out of Plot No.756 of Khata No.184 situated at Mouza Pandu, P.S.- Bishrampur, District-Palamau by virtue of a registered sale-deed dated 3rd April 2003 from Reyajuddin Mian with specific boundary mentioned therein and came into possession over the same and got their names mutated and rent receipts are being issued by the Revenue Authorities. It is the case of the petitioner that it reveals from the sale-deed
Facts
of the plaintiff dated 28th February 2003 and 10th December 2003 that in the boundary, the father of the petitioner no.1, namely, Reyasat Hussain has been shown in the eastern portion, but surprisingly enough, the lands purchased by the petitioners were allotted to the Takhta of the plaintiff-O.P No.1, namely, Fulmani Devi in the said final decree proceeding although the petitioners have not been made parties in the said suit and decree has been passed without their notice and knowledge. It is pleaded that during the pendency of Execution Case No. 12 of 2011 the petitioners, having come to know about the same filed an application under Order XXI Rule 97, 99 and 100 under Civil Procedure Code (CPC) praying therein for adjudication of their right, title, interest and possession over the lands purchased by them and the same was registered as 3 Misc. Case No. 03 of 2012 and during the pendency of the said Misc. Case the petitioners filed an application under Order XXVI Rule 9 read with Section 151 CPC for appointment of Survey Knowing Advocate Commissioner in order to elucidate the matter in controversy relating to purchase of the lands by the petitioners through sale-deeds, i.e., Exhibit-1 and 1/A to the present petition, which was prior to filing of the aforesaid Partition Suit and whether the said lands was allotted to the share of plaintiff, namely, Fulmani Devi or not in the Takhta prepare during the final decree proceeding. On this, the decree holder filed a rejoinder to the said petition praying therein to reject the petition filed by the petitioners. Thereafter, the learned trial Court after considering the rival contentions of the parties has rejected the petition filed by the petitioners under Order XXVI Rule 9 read with section 151 CPC for appointment of Survey Knowing Pleader Commissioner vide order dated 17th February 2024. Being aggrieved, the petitioners approached this Court to challenge the order dated 17th February 2024 of the trial Court which is the subject matter of the instant petition. 3. It is evident from the factual aspect that the petitioners were not a party to the suit being Partition Suit No.37 of 2006 and the decree has been passed in the aforesaid suit. Subsequent thereto, this proceeding has also been set at motion. The petitioners at that stage has filed a petition under Order XXI Rule 97 as an objector claiming their valid right which they have claimed on the basis of the registered sale-deed. 4. The said petition has been admitted for hearing. The petitioners have filed a petition under Order XXVI Rule 9 of the CPC in the meanwhile. The reason for filing such petition it would determine the area of the land which was purchased by virtue of the registered sale-deed. 5. The said petition has seriously been objected by the decree holder inter alia on the ground that the petition filed under Order XXVI Rule 9 CPC may not be entertained and further the provision under Order XXVI Rule 9 CPC is not meant for collecting the further evidence. 4 6. The learned trial Court has considered the rival contentions of the parties and has rejected the petition filed under Order XXVI Rule 9 CPC which is under challenge in the present petition. Submission of the learned counsel for the petitioner: 7.
Legal Reasoning
24. Further, it is well settled that the object of local investigation by appointing Commissioner is not to collect evidence which can be adduced in the Court. It is the Court, who has to decide the matter on the basis of evidence to be adduced by the parties or the evidences already on record. 25. Reference in this regard may be taken from the judgment as rendered 8 in the case of Tulamaya Chettri v. Younarayan Pradhan, (2004) 3 CCC 318, wherein at paragraph 4, it has been held as under: “4. Order 26, Rule 9, CPC authorises the Court to appoint a commissioner if it considers a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or for other reasons mentioned therein. The matter is thus left to the discretion of the Court. The discretion is however a judicial one and not an arbitrary exercise of the power. The object of such appointment is to obtain evidence from the spot itself which helps the Court to properly understand and assess the evidence on record. The report submitted by the Commissioner is a piece of evidence which has to be considered along with other evidence on record. 26. The issue pertaining to provision of Order XXVI Rule 9 of the C.P.C. also fell for consideration before the various High Courts, reference in this regard may be made to the order passed by the Uttrakhand High Court in the case of Rajesh Kumar Gautam Vrs. M.M.V.G. Ashram, reported in AIR 2004 U’Chal 30 (31), wherein, it has been observed that purpose of getting report from Survey Knowing Commissioner to find out the actual State of Affairs in between the parties and the appointment of Survey Knowing Commissioner for that purpose will not bound to collect the evidence rather it will be elucidated any matter in dispute. Of course, there is an issue for collecting evidence on behalf of the parties but there is no bar for explaining the situation and elucidating the disputed possession of the land, that too in a situation where the parties are claiming for encroachment of land by other side. 27. Similarly, in the case of Saraswathy Vrs. Viswanathan, reported in 2002 (2) CTC 199, it has been held that object of appointment of Commissioner is not to collect evidence but to elucidate matter which are local in character. 28. The law is also well settled that if the party concerned is approaching the court of law and is trying to make out a case in his favour, onus is upon the plaintiff or the defendant, as the case may be, to stand his case on his 9 own evidence and the documents. If the petition filed under Order XXVI, Rule 9 CPC will be allowed, then a serious prejudice would be caused to either of the parties and the same will be nothing but the adjudication of the issue which depends upon the report of the Survey Knowing Pleading Commissioner. 29. Adverting to the facts in the present petition and in the background of the admitted fact that the petition which has been filed under Order XXI Rule 97 CPC is still lying pending before the executing Court, meaning thereby, the right of the petitioners herein, is still to be adjudicated regarding entitlement of their right, title and interest over the property in question in which their status is under consideration as an objector. 30. The petitioners, in the meanwhile, filed a petition Order XXVI Rule 9 CPC for ascertaining the areas of the land which they claimed to be purchased by virtue of a registered sale-deed. 31. In aforesaid circumstances the question is that when the right of the petitioners is still to be adjudicated by the court under order XXI rule 97 then whereas the question of a report to be given by the Survey Knowing Pleader Commissioner. Conclusion 32. The Order XXVI Rule 9 CPC is very specific that it can be exercised on the discretion by the Court or a party to the suit. But herein although the petition having been filed by the petitioners under Order XXI Rule 97 CPC is admitted for hearing, wherein their status as an objector is still be decided. 33. In that view of the matter, a petition which has been filed under Order XXVI Rule 9 CPC cannot be said to be conferred any locus in course of the pending proceeding which is pending under Order XXI Rule 97 CPC. 34. This Court, after referring the aforesaid facts based upon the legal position and adverting to the order impugned wherein the trial court has considered the aforesaid aspect of the matter, is of the view that the order impugned needs no interference. 35. Further this Court is conscious with the fact that this Court is exercising the jurisdiction conferred under Article 227 of the Constitution of 10 India where the law is well settled that the legality of the order, which is to be looked into by the Court exercising power under Article 227, need not be interfered with unless the error appears on the face of the record said to be manifest in the nature or the order passed by the concerned court is without jurisdiction. It is the settled position of law that the jurisdiction of the court exercising the revisionary jurisdiction, as conferred under Article 227 of the Constitution of India, is very least and the same can only be exercised if there is manifest error or the jurisdictional error. 36. Reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 wherein, the Hon’ble Supreme Court has laid down the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein, it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. 37. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. i. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. ii. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid 11 of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141, wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. iii. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. iv. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576, it hasbeen laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. vi. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been 12 a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. vii. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised. 36. This Court, after taking into consideration the purport of Order XXVI Rule 9 CPC which can be exercised on the discretion by the Court and further taking in to consideration that the petition having been filed by the petitioners under Order XXI Rule 97 CPC is admitted for hearing, wherein their status as an objector is still be decided, is of the view, that the petitioners have failed to show any error apparent on the face of order, hence, it is not a case where power conferred to this Court under Article 227 of the Constitution of India under its supervisory jurisdiction is fit to be exercised. 37. This Court in the entirety of the facts and circumstances is of the considered view that the impugned order dated 17th February 2024 does not suffer from any error, thus the instant Civil Miscellaneous Petition sans merit is accordingly dismissed. (Sujit Narayan Prasad, A.C.J.) Sudhir AFR
Arguments
Mr. Amar Kumar Sinha, the learned counsel appearing for the petitioners has submitted that the learned Court while rejecting the petition filed under Order XXVI Rule 9 CPC has not appreciated the fact that the same is required before preparing the final decree otherwise the right of the petitioners be jeopardized. 8. It has further been contended that the petitioners have purchased the said land by virtue of the registered sale-deed and, as such, for ascertaining the preparation of final decree the actual independent measurement of the land which has been claimed to be purchased by the petitioners is required and in that view of the matter, a petition has been filed, but the contents of the said petition have not been appreciated in the right perspective which is the subject matter of the present petition. Analysis 9. This Court has heard the learned counsel for the petitioners, gone through the pleadings made in the petition as also the findings recorded by the learned trial Court in the impugned order. 10. The limited fact herein that in a decree passed in the partition suit being Partition Suit No.37 of 2006 a petition was filed under Order XXI Rule 97 CPC at the stage when the execution proceeding has been set at motion by the decree holder. The said petition although has been admitted and is pending for its consideration on merit, a separate petition has also been filed by the petitioners under Order XXVI Rule 9 CPC seeking a prayer to earmark the land which they were purchased by virtue of the registered sale-deed which pertains to 0.09 acres. 11. The learned Court has rejected the said petition on the ground that a petition has already been filed under Order XXI Rule 97 CPC which was under consideration in which a partial argument has already been conducted and the case is at the stage of further argument. 12. The aforesaid finding as has been recorded by the learned trial Court is now being considered in the touch stone of the basic object of the 5 provisions as contained under Order XXI Rule 97 as also under Order XXVI Rule 9 CPC. 13. The provisions as contained under Order XXI Rule 97 is by way of a remedy made available to any person except the judgment debtor who is claiming his interest upon the property in question in which the decree has been passed whose status is to be considered as an objector taking an objection in the execution of the decree which have been passed. 14. Order XXI Rule 97 clearly stipulates application by the judgment debtor under Rule 97 C.P.C is not permissible. Expression any person in Rule 97 has widening the scope of power so as to enable to executing court to adjudicate the claim. 15. It includes all the persons resisting delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or any other persons claiming right on their own, including a stranger. It is clearly stipulated in Rule 97 that where any third party wants to raise an objection to the effect that decree cannot be executed against him, he is entitled to file an application under Order 21 Rule 97 CPC which would have to be decided on its own merits by the executing court in accordance with law. 16. The Hon’ble Apex Court in the case of Sameer Singh & Anr. Vs. Abdul Rab & Ors. (2015) 1 SCC 379, has observed that the Executing Court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties including the claim of a stranger who apprehends dispossession from the immovable property. This is provided to avoid multiplicity of proceedings and if a court declines to adjudicate by stating that it lacks jurisdiction, that by itself would occasion failure on part of the Executing Court to exercise the jurisdiction vested in it. 17. In most recent judgment in Jini Dhanrajgir & Anr. Vs. Shibu Mathew & Anr. (2023) SCC Online SC 643, the legal position has been reiterated by the Hon’ble Apex Court that Rules 97 to 103 of Order XXI of the CPC provide the sole remedy both to the parties to a suit as well as to a stranger to the decree put to execution. 6 18. The Hon’ble Apex Court in the case of Smt. Ved Kumari (dead through her legal representative) Dr. Vijay Agarwal Vs. Municipal Corporation of Delhi through its Commissioner 2023 INSC 764 has categorically held that it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree- holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: “15. In view of the settled legal position, as noted (supra), it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. The Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed.” 19. Thus, it is evident from the aforesaid legal position that it is the duty of the Executing Court to execute the decree in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. 20. Further, if the objector will be able to substantiate his claim over the property which has been decreed then the order is required to be passed which will be construed to be under Order XXI Rule 101 CPC. The implication of the said order will be in supersession to the decree passed 7 and, in those circumstances, the decree already passed will have no meaning, rather the order which will be passed under Order XXI Rule 101 CPC will have the impact over the suit property. 21. The issue involved herein is the order passed by the learned Trial Court rejecting the prayer made for allowing Survey Knowing Pleading Commissioner to be appointed in view of the provision of Order XXVI Rule 9 CPC. 22. This Court before entering into the legality and proprietary of the impugned order needs to refer herein the underlined scope of Order XXVI Rule 9 CPC by making reference of the aforesaid provision which reads as under:- “R. 9. Commissions to make local investigations-In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report therein to the Court. Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 23. It is evident from the aforesaid provision that the object of local investigation under Rule 9 is to elucidate any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report therein to the Court.