) ------ Pankaj Kumar, aged about 41 years, son of Bhola Yadav, resident of v. 1. Debesh Kumar Mandal, son of late Arti Mandal & late Amal Kumar Mandal
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.222 of 2019 ------ (Against the judgment dated 16.02.2019 passed by learned Principal District Judge, Jamtara in Civil (Misc.) Appeal No.03 of 2018) ------ Pankaj Kumar, aged about 41 years, son of Bhola Yadav, resident of Kangoi, Mihijam, P.O. & P.S. Mihijam, District-Jamtara. .... .... …. Plaintiff/Appellant/Appellant. Versus 1. Debesh Kumar Mandal, son of late Arti Mandal & late Amal Kumar Mandal, resident of Station Road, Mihijam, P.O. & P.S. Mihijam, District-Jamtara. .... .... …. Respondent/Respondent 1st Party/Respondent 2. Ganga Yadav, son of Ram Swarup Yadav, resident of Kangoi, Mihijam, P.O. & P.S. Mihijam, District-Jamtara. ....
Legal Reasoning
.... …. Defendant/Respondent 2nd Party/Respondents. For the Appellants For the Respondents’ ------
Legal Reasoning
: Mr. Rahul Kr. Gupta, Advocate : Mr. Ashutosh Prasad Joshi, Advocate : Mr. Ram Prawesh Prajapati, Advocate ------ P R E S E N T HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellants. 2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of concurrence dated 16.02.2019 passed by learned Principal District Judge, Jamtara in Civil (Misc.) Appeal No.03 of 2018 whereby and where under the learned Principal District Judge, Jamtara dismissed the Civil (Misc.) Appeal No.03 of 2018 dated 16.02.2019 on contest but without cost. 1 S.A. No.222 of 2019 3. The brief fact of the case is that the appellant-applicant filed an application under Order XXI Rules 99 and 101, read with Section 151 of the Code of Civil Procedure in Execution Case No.09 of 2010 of the Court of Civil Judge, Senior Division-II, Jamtara and the same was registered as Misc. Case No.03 of 2011. 4. The case of the appellant-applicant is that the decree holder of the said execution case No.09 of 2010 namely Debesh Kumar Mandal, who is the Respondent No.1 of this Second Appeal is the owner of the property in question. The appellant-applicant was inducted as a tenant of a monthly rent of Rs.500/- (Five Hundred) in the year 1996 as per oral agreement for running a book shop. The appellant-applicant has taken a loan from State Bank of India as proprietor of the book shop in the year 2004, hence, it was prayed that the delivery of possession of the suit property to the plaintiff ought not be given. The prayer was objected to by the decree holder by pleading that the appellant-applicant has no document to show any of his right, title or interest over the land in question, hence, he is not entitled to any relief. 5. The executing Court being the Civil Judge, Senior Division-II, Jamtara considered the report of the Nazir of the Civil Court, Jamtara; who reported that judgment debtor was called for execution of the Court’s order regarding vacation of the shop. The judgment debtor told the Nazir, Civil Court, Jamtara that the key of the shop was in possession of his nephew Vinay Jadhav. Vinay Jadhav though came to the premises but refused to open the shop and refused to hand over the key of the shop. One of the reason for the executing court in not believing the plea of the appellant-applicant was that, the report of the 2 S.A. No.222 of 2019 Nazir, Civil Court, Jamtara does not whisper the name of the appellant- applicant being in possession of the property in dispute. 6. The Civil Judge, Senior Division-II, Jamtara considered the copies of the various documents of the appellant-applicant, regarding sanction of loan, demand notice by the telecom department and affidavit of the decree holder, but considered that none of the same is a document of title. 7. The Civil Judge, Senior Division-II, Jamtara also considered that the appellant-applicant could not produce any document of being a tenant of the decree holder nor he could produce any document regarding payment of any rent to the decree holder, hence, the Civil Judge, Senior Division-II, Jamtara did not believe the contention of the appellant-applicant that he is a tenant of the plaintiff. The Civil Judge, Senior Division-II, Jamtara considered the settled principle of law that the executing court cannot go beyond the decree and cannot question the legality of the decree and dismissed the petition filed by the appellant-applicant. 8. Being aggrieved by the order dated 13.02.2013 passed in said Misc. Case No.03 of 2011 by the Civil Judge, Senior Division-II, Jamtara, the appellant- applicant filed Civil Misc. Appeal No.03 of 2018 in the Court of Principal District Judge, Jamtara. The Principal District Judge, Jamtara also considered the materials in the record and arrived at the conclusion that it did not find any illegality or irregularity in the said order dated 13.02.2013 passed by the learned Civil Judge, Senior Division-II, Jamtara and dismissed the said appeal. 9. Learned counsel for the appellant submits that both the Courts below have completely failed to take note of the circumstances, which show that the decree sought to be executed was a collusive decree and both the Courts below 3 S.A. No.222 of 2019 have failed to consider the documents filed on behalf of the appellant- applicant in their right perspective, hence, it is submitted that the order and judgment respectively passed by both the Courts below being not sustainable in law be set aside and the application filed by the appellant-applicant be allowed after formulating substantial question of law. 10. Having heard the submissions of the learned counsel for the appellants and after going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that in an inquiry under the provisions of Order XXI Rule 97, the person obstructing delivery of property has to prove not only his possession but has to establish further that his possession was not obtained from or under the judgment debtor. 11. Now coming to the facts of the case, it is the case of the appellant- applicant that he was inducted as a tenant by the decree holder. Admittedly, the appellant-applicant has no document to show either payment of any rent ever given by him to the decree holder. Even though, he claims to be continuing as tenant since 1996, the application under Order XXI Rule 97 was filed on 20.06.2011. Though, the appellant-applicant claims that he has been continuing as a tenant for about 15 years continuously, but he does not have any chit of paper to show a single rent ever being paid by him to the decree holder. Further, since, it is the case made out by the appellant-applicant that he was inducted as a tenant by way of oral agreement, so, obviously producing any agreement regarding tenancy is ruled out. The only document which the appellant-applicant filed are some documents of obtaining loan from State Bank of India, a demand notice issued by the telecom department which does not bear the plot number and khata number of the suit premises. 4 S.A. No.222 of 2019 12. Under such circumstances, the concurrent findings of fact which is also based on the report of the Nazir of Civil Court, Jamtara who went to the place of occurrence but nowhere he could see the presence of the appellant-applicant at the disputed property; in the considered opinion of this Court, cannot be termed as suffering from any perversity. After going through the materials in the record; this Court do not find any substantial question of law involved in this Appeal. 13. Accordingly, this appeal, being without any merit, is dismissed. 14. In view of dismissal of this Second Appeal, IA No.8016 of 2022 is
Decision
disposed of being infructuous. 15. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 23rd of October, 2024 AFR/ Abhiraj (Anil Kumar Choudhary, J.) 5 S.A. No.222 of 2019