Allahabad High Court
Akanchha Mishra vs Sumitra Devi And 10 Others on 3 August, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:155487
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 6067 of 2023
Petitioner :- Akanchha Mishra
Respondent :- Sumitra Devi And 10 Others
Counsel for Petitioner :- Rahul Sahai
Counsel for Respondent :- Shri Krishna Mishra,Ashish Kumar Mishra
Hon'ble Jayant Banerji,J.
1. Heard Shri Rahul Sahai, learned counsel for the petitioner and Shri S.K. Mishra, learned counsel appearing for the decree-holder, respondent no.1.
2. This petition has been filed seeking the following relief:-
"I. Issue a suitable order, or direction for setting aside the judgment/order dated 29.4.2023 passed by the District Judge, Chitrakoot in Civil Revision No. Nil of 2023 (Akanchha Mishra Vs. Sumitra Devi and others). and judgment/order dated 18.4.2023 passed by the Civil Judge (Junior Division) Mau- Chitrakoot in Execution Case No.2 of 2018 (Sumitra Devi Vs. Raj Narain) (Annexure-1 & 2 to the petition) respectively."
3. At the outset, Shri S.K. Mishra, learned counsel for the respondent-decree holder, has stated that the decree has been satisfied inasmuch as possession of the property in dispute has been given to the decree holder on 11.07.2023 through the Court Amin.
4. Learned counsel for the petitioner, though has not disputed that the decree has been satisfied, however, states that this petition would not be rendered infructuous. It is stated by him that the petitioner is the owner of the Plot No.1271 which is adjacent to Plot No.1270/1. It is stated that the suit property is a part of Plot No.1270/1. It is stated that repeated steps were taken for getting the Plot No.1271 demarcated but all those reports were not considered by the executing court in passing the order impugned. It is stated that the petitioner would be entitled to restitution of the suit property from which she has been illegally dispossessed.
5. Shri S.K. Mishra, learned counsel for the decree-holder, on the other hand, referred to the impugned order dated 18.04.2023 to contend that the petitioner-third party had filed objections in the execution proceedings which were rejected by the executing court on 08.09.2021 due to her repeated absence. Thereafter, the petitioner-third party filed an application on 11.02.2022 under Order XXI, Rule 99 CPC which was registered as Misc. Case No.1 of 2022 and thereafter was rejected on 19.04.2022 as being not maintainable. Thereafter, again on 25.04.2022, an application paper no.57-Ga2 was filed by the petitioner for getting the plot in dispute demarcated and if the construction made by the petitioner is found to be existing over the plot no.1270/1 then the petitioner would remove the same on her own expenses. It is contended by the learned counsel that the executing court partly allowed the application filed by the petitioner observing that if the construction of the petitioner is found to be over the Plot No.1270/1, then she would herself remove the construction on her own expenses, and ordered for temporary injunction. It is stated that the trial court observed that before the demarcation report could be placed before the court by the Court Amin and a combined revenue team, the petitioner on 28.03.2023 sold the property in decree to two other persons by means of a sale-deed mentioning the boundaries of the property in decree.
6. I have perused the order of the executing court dated 18.04.2023 and I find the submission made by the learned counsel for the respondent-decree holder to be correct. The executing court has observed that the sale-deed in respect of the plot in decree would be a voidable document under the provisions of Section 52 of the Transfer of Property Act and which comes under the category of a fraudulent transaction within the meaning of Section 53 of the Transfer of Property Act, and which has been made to frustrate the decree of the court. The executing court, after referring to the report of the Court Amin dated 15.04.2023, has observed that despite having full knowledge that the land in respect of which she is executing the sale-deed is the property in decree, the petitioner, for frustrating the decree of the court, has fraudulently sold the land that is shown in the decree dated 28.03.2011 as '?' '?' '?' '?' and to delay the delivery of possession to the decree holder the property has been transferred.
7. The executing court also dealt with the contention of the learned counsel appearing for the third-party petitioner that the land that has been transferred was not the decreed land but in respect of her own Plot No.1271. It was stated by the executing court that evidently the third-party petitioner executed a fraudulent sale-deed in favour of Vijay Laxmi and Shobha Devi showing the boundaries of the same land decreed and marked in the decree with alphabets '?' '?' '?' '?' which is part of Plot No.1270, as of Plot No.1271. The court held that the action and conduct of Akanksha Mishra were directed to frustrate the decree and with malafide intention of delaying the possession to the decree holder, Sumitra Devi. Therefore, under the circumstances, the Court, while cancelling the demarcation proceedings ordered earlier, directed that with the help of police force, on the basis of the boundaries and measurements mentioned in the decree dated 28.03.2011 and in accordance with the report of the Court Amin dated 15.04.2023, which have been shown in the decree as '?' '?' '?' '?', the decree holder, Sumitra Devi, be given possession after demolishing the two rooms.
8. The revisional court, in its order dated 29.04.2023, has considered the matter in its entirety as well as the order passed by the executing court and has observed that against the order dated 18.04.2023, the civil revision is not maintainable and, therefore, the civil revision was dismissed.
9. The vehement contentions of learned counsel for the petitioner that several survey reports submitted by the petitioner were not considered by the executing court, and that only the Amin report was considered, cannot have any bearing in the present case in view of the facts and circumstances of the case and given the conduct of the petitioner as is reflected in the order of the executing court dated 18.04.2023. As has already been stated hereinabove and is admitted by the learned counsel for the petitioner that the decree has been satisfied in view of the possession given to the decree holder on 11.07.2023, no cause for interference is made out in this petition.
10. This petition is, accordingly, dismissed.
Order Date :- 3.8.2023
SK
(Jayant Banerji, J.)
