Surendra Nath Pandey And Another vs District Judge,Sultanpur And ...
2022 Latest Caselaw 4399 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 5
 
Case :- MATTERS UNDER ARTICLE 227 No. - 1844 of 2022
 
Petitioner :- Surendra Nath Pandey And Another
 
Respondent :- District Judge,Sultanpur And Others
 
Counsel for Petitioner :- Bajrang Bahadur Singh
 
Counsel for Respondent :- Rajkumar Chaurasia
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner Shri Bajrang Bahadur Singh and Ms. Prashansha Singh who appears on behalf of opposite party no.3.

2. Notice to opposite parties no.4, 5 and 6 is being dispensed with.

3. This petition has been filed challenging the order dated 11.01.2017 passed by learned Civil Judge (Junior Division), Kadipur, Sultanpur and the order dated 04.4.2022 passed by District Judge, Sultanpur and praying for a direction that the executing Court must take a fresh decision on the application by considering the provision of Order 21 Rule 29 CPC and also praying for stay of proceedings of Execution case no.2/2013 pending before the Court of Civil Judge (Junior Division), Kadipur, Sultanpur.

4. It has been submitted by the learned counsel for the petitioner that two Regular Suits No.55/1961 and 227/1961 were consolidated and heard together and decided by Munsif (North) on 02.01.1965. Against such order two separate appeals were filed namely appeals no.17/1965 and 18/1965 which were dismissed by a common judgment on 04.3.1966 restraining the defendants from interfering in the peaceful possession of the plaintiffs over the land in dispute.

5. The decree dated 02.01.1965 and the order passed in appeal dated 04.3.1966 was passed in favour of the predecessor in interest of the opposite party no.3 to 6 against the predecessor in interest of the petitioner numbers 1 and 2.

6. The opposite party thereafter filed an application for execution of decree dated 02.01.1965 under Order 21 Rule 52 of the CPC on 29.5.2013 after the lapse of 48 years.

7. Notices were issued and the petitioners were heard and filed objection under Section 47 of the CPC registered as miscellaneous case no.94/2015. In the objection petitioner pleaded that plot no.440 which was a land in dispute, was joint property and no formal partition had taken place between the parties. It was also stated that the decree holders themselves filed an application for correction of the map on 25.3.2010. The Chief Revenue Officer, Sultanpur by his order dated 21.8.2015 had dismissed the application for correction of the map. A revision has been filed by the opposite parties no.3 to 6 before the Commissioner, which is pending. Moreover, a suit for partition had also been filed under Section 176 of the UPZALR Act by the judgment debtor which is pending before Sub Divisional Officer Kadipur, Sultanpur.

9. It has been argued that in the objection filed against the application filed by the petitioner, the opposite parties have admitted the filing of a partition suit and also filing of an application for correction of map and have also admitted that all the property is joint and no formal partition has taken place. Still on 11.01.2017 the learned Civil Judge (Junior Division), Kadipur, Sultanpur has rejected the objection of the petitioner under Section 47 of the CPC without considering the provision of Order 21 Rule 29 CPC and the judgments of the Hon'ble Supreme Court passed thereon.

11. Feeling aggrieved against the order dated 11.01.2017 the petitioner no.1 had filed a revision which has also been rejected by the order dated 04.4.2022.

12. It has been argued by the learned counsel for the petitioner that if the parties to the Execution case are the same and there is a proceeding for correction of map which is pending and also a suit for partition filed by the judgment debtor then, without formal partition of land the decree dated 02.01.1965 becomes inexecutable and, therefore, execution proceedings should have been stayed during the pendency of the partition suit under Section 176 of the UPZALR Act.

13. It has been argued that under Order 21 Rule 29 CPC where a suit is pending in any Court against the holder of the decree of such Court or of a decree which is being executed by such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. In the case at hand a suit for partition has been filed with respect to the same part of the land for which the decree dated 02.01.1965 had been granted by the Munsif North, therefore, the decree became inexecutable at least till the partition suit was decided.

15. Learned counsel for opposite party no.3 on the other hand has pointed out that it is evident from perusal of Annexure-1 and 2 to the petition which are copies of the order dated 02.01.1965 in Regular Suit No.55/61 and 227/1961, and Order passed in appeal by the appellate court on 04.03.1966, that the suit was filed by the predecessor in interest of the opposite party no.3 to 6 for permanent injunction restraining the defendants from interfering in various articles of the plaintiffs detailed in relief clause of such plaint, and also restraining them from interfering in their peaceful possession over such articles/ land in suit. The land in suit was Grove No.440. The plaintiffs had alleged that the Eastern 1/3rd share formally belong to the plaintiff and remaining 2/3rd belonged to the defendant and that plot no.445 which was adjacent to the plot in dispute contained the plaintiff's house for the last 60 years. The Sahan Darwaja of the said house was situated towards the west over which the plaintiff's Sariya, Baithaka, Gulaur, Kolhu and the Chakki were situated since a long time and same were used for teathering the cattle and as threshing floor.

16. The defendants had contested the suit saying that the plaintiffs had got no concern with the land and the defendants were the sole ''bhumidhar' thereof. Regular Suit no. 227/1961 has been filed for possession by the demolition of various construction which were the subject matter in dispute in Regular Suit No.55/1961, against the defendants who were the plaintiffs in Regular Suit No.55/1961. It was in the nature of a cross suit. The trial court had framed issues and considered all evidence including the commission report that was filed after spot inspection was made. Regular Suit No.55/1961 for restraining the defendants from interfering the peaceful possession of the plaintiffs over the subject matter in dispute was decreed with cost. Regular Suit No.227/1961 was dismissed with cost. The Commissioner's map which was paper no.121 C in Regular Suit No.55/1961 was to form a part of the decree of both the suits.

18. The plaintiffs in suit to 227 of 1961 filed two civil appeals against the decree dated 02.01.1965 both in R.S. No. 55/1961 and 227/1961. The appellate court again considered all evidence and rejected the appeals. The decree dated 02.01.1965 was confirmed.

19. Since the decree was for permanent injunction against the defendants in the suit from interfering in peaceful possession of the plaintiffs over certain part of the land in suit, on the basis of Commissioner's map which became part of the decree, the plaintiffs continued to enjoy the peaceful possession thereof.

20. The judgment debtors sold off such property as was in their possession to the predecessor in interest of the petitioners. When the petitioners tried to interfere in the peaceful possession of the opposite parties over the land in dispute, they filed an application for correction of map. They also filed a suit for partition.

21. It has been argued by the learned counsel for the opposite party no.3 that the petitioner has not filed a copy of the Commissioner's map paper no.121 C filed in R.S. No.55/1961 which was made a part of the decree of both the suit numbers 55/1961 and 227/1961.

22. It has been submitted on the basis of objections filed to the application under Section 47 moved by the petitioner, a copy of which has been filed as Annexure-9 to the petition, that the suit was filed for Gata No.440, the eastern part of which was in possession of the plaintiffs and it had their cattle shed and threshing floor etc constructed thereon. Since plot no.440 was a grove, it was kept outside the chakbandi operations but it was given the new no.415. The eastern portion of such gata was in exclusive possession of the decree holder as per the decree dated 02.01.1965. When the peaceful possession of such half portion of plot no.440, renumbered as plot no.415, was being disturbed, the execution case was filed.

23. The suit for partition has been filed not for eastern portion of plot no.440 renumbered as plot no.415 but for the western portion of the said plot by the vendee of the judgment debtor. After the death of judgment debtor Shiv Murat son of Uday Raj, his dependents Jai Jai Ram and Mohan, son of Jageshar and Raj Narain etc had sold off their part of the land to one Smt. Meera Srivastava daughter of Kamlesh Lal and Smt. Meera Srivastava stepped into the shoes of the judgment debtor, and filed a suit for partition only for that portion of land which she had bought, i.e, the western part, from the judgment debtors. The decree dated 02.01.1965 has been confirmed in Appeal and only because an application for correction of map as available in the Revenue Records was filed by such judgment debtor or Smt. Meera Srivastava, would not make the decree dated 02.01.1965 inexecutable against the judgment debtor.

24. This Court after hearing the learned counsel for the parties has gone through the order dated 11.01.2017 passed by the Civil Judge (Junior Division) Kadipur, Sultanpur and finds that the Civil Judge (Junior Division) has considered not only the application paper no.3 Ka (1) under Section 47 of the CPC filed by the petitioners, but also the objection paper no. 6 Ga (2) filed by the decree holder, the opposite parties nos. 3 to 6. After noting the contents of both the application and its objection the trial court has considered the two main objections raised with regard to the old gata no.440 renumbered as 415, alleging that there was no formal partition between the co-tenure holders and, therefore, the decree was not executable, and the second objection that the execution proceeding has been filed in year 2013 for a decree dated 02.01.1965 and was highly time barred. The trial court has come to the conclusion that the decree had been confirmed in appeal and it was only granted permanently inujuncting the judgment debtors from interfering in the peaceful possession of the decree holders. There was no declaration of title. In case the judgment debtors had filed any suit for partition, it would not go against the Commissioner's map paper no.121 C which was made part of the decree by the Munsif North dated 02.01.1965. With regard to objection regarding Execution case becoming time barred the trial court has found the decree holder's contention that the suit was for permanent injunction and against the decree injuncting the judgment debtor from interfering in peaceful possession of the plaintiff, no limitation is prescribed. As and when there is an interference, Execution case can be filed. The learned trial court has rejected the application under Section 47 of the CPC.

25. The petitioners approached the District Judge in Civil Revision No.19/2017 and argued their application under Section 47 afresh and took the very same ground as they had taken before the trial court. The revisional court after going through the paper book/ record has observed that since the map of the Commissioner paper no.121 C had been made part of the decree dated 02.01.1965 which clearly shows the eastern portion of old gata no.440, it could not be said that the decree was inexecutable only because a partition suit has been filed by subsequent purchasers of land in dispute from the judgment debtor. The revisional court has observed as follows :-

"ewy okn la[;k [email protected] ds izdj.k esa dfe'uj uD'ks dks fMdzh dk va'k cuk;k x;k gS A fookfnr Hkwfe esa [email protected] va'k fMdzhnkjku dk gS] og Hkh l{ke vf/kdkfjrk okys U;k;ky; }kjk fu.khZr fd;k tk pqdk gS A ;fn deh'ku uD'kk dkxt la0 121 x dks fMdzh dk va'k cuk;k x;k rks ,slh fLFkfr esa mDr uD'ks esa mfYyf[kr uki] pkSgn~nh bR;kfn Li"Vr of.kZr gS A mDr ds n`f"Vxr fookfnr Hkwfe esa f'kuk[r fd;k tkuk O;kogkfjd :i ls lEHko Hkh gS A nhokuh U;k;ky; esa fdlh ewy okn esa vkns'k rFkk blds fo:) nkf[ky vihy bR;kfn [kkfjt gks tkus ds i'pkr fdlh ekeys esa miftykf/kdkjh ;k jktLo ds vU; vf/kdkjh ds le{k caVokjs bR;kfn dk ekeyk yfEcr gksus ds vk/kkj ij fu"iknu dh dk;Zokgh dks jksds tkus dk dksbZ fof/kd vkSfpR; ugha gS A /kkjk & 47 fl0iz0 la0 dk eq[; mn~ns'; dsoy ;k gS fd fu"iknu dh dk;Zokgh ds nkSjku fMdzh dh fu"iknfu;rk (executability) ;k vfu"iknfu;rk (non-executability) ds rF; fMdzh dh 'kq+)rk & v'kq)rk dk ijh{k.k ugha fd;k tkuk gS A vr% fo+}ku flfoy tt v0 la0 dknhiqjj us fu"iknu ds izdj.k dh izkphurk rFkk vihyh; U;k;ky; }kjk vihy [kkfjt gksus o /kkjk & 47 fl0 iz0 la0 esa micaf/kr fof/kd izko/kkuu ds n`f"Vxr fuxjkuhdrkZ ds izkFkZuk i= 3 d dks fujLr djus ds lanHkZ esa tks vk/kkj mfYyf[kr fd;k gS og iw.kr% fof/klEer gS A

mijksDr leLr fo'ys"k.k ds vk/kkj ij eSa bl fu"d"kZ ij igqaprk gwa fd fo}ku flfoy tt voj [k.M dknhiqj }kjk ikfjr iz'uxr vkns'k esa dksbZ fof/kd =qfV ifjyf{kr ugha gksrh gS A vr% iz'uxr vkns'k esa gLr{ksi dh vko';drk ugha gS A rnuqlkj izLrqr fuxjkuh fujLr fd;s tkus ;ksX; gS A"

26. This Court finds from the reasons given by the trial court and by the revisional court that due consideration has been made of the Objections filed by the petitioners under Section 47 of the CPC. No good ground for showing interference in the orders impugned has been made out under Article 227 of the Constitution. This petition stands dismissed.

Date :- 27.5.2022

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