Lakhi Chand Yadav & Ors vs Dayaram Gowala & Ors
2023 Latest Caselaw 2581 Cal

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               IN THE HIGH COURT AT CALCUTTA

                     (Civil Revisional Jurisdiction)

                             Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                           C.O. 288 of 2023
                      Lakhi Chand Yadav & Ors.
                                  Vs.
                        Dayaram Gowala & Ors.


For the Petitioner               : Mr. Ganesh Shrivastava, Adv.
                                 Mr. Sukanta Das, Adv.
For the Opposite parties         : Ms. Anyasha Das, Adv.




Heard on                         : March 28, 2023
Judgment on                      : April 17, 2023



Bibhas Ranjan De, J.

1. The order dated 19.12.2021 in connection with Misc Case No.

48/18 is under challenged. Both the learned advocate Mr.

Ganesh Shrivastava and Ms. Anyasha Das appeared on behalf

of the parties to this application.

2. Specific case of the petitioner is as follows:-

petitioners/plaintiffs filed a title suit no.22 of 2000 before the

Learned Civil Judge, Senior Division/Small Causes Court at

Sealdah with a prayer for declaration and partition of the

Premises no. 1/1, Kundu Lane, Kolkata 700037 against the

opposite parties/defendants. Preliminary decree was passed in

the suit declaring 2/3rd share in favour of the petitioners/

plaintiffs and 1/3rd in favour of the opposite

parties/defendants. Thereafter, Partition Commissioner was

appointed for effecting partition by metes and bounds. But

when commissioner visited the premises he was restrained by

the op/defendants and denied entry into the suit premises.

Partition Commissioner filed application for police assistance

and at the time of hearing opposite parties/defendants

undertook not to restrain Commissioner. Again Commissioner

visited the suit property for effecting partition metes and

bounds and submitted his final report along with the plan

before the Learned Trial Court. Accordingly, final decree was

passed on 05.09.2016 and petitioners/ plaintiffs filed an

application for execution of the final decree with the police

help, if required. Learned Judge issued a writ to the bailiff for

delivering possession of the suit property with the help of

survey passed Advocate Commissioner. On 06.07.2018 bailiff

visited the suit property but bailiff was obstructed by the

opposite parties/judgments debtors. The bailiff returned the

writ for delivery possession unexecuted apprehending serious

breach of peace and sought for assistance of police.

3. Further case of the, petitioners/decree holders is that an

application under Rule 208 of civil rules and orders was filed

against the opposite parties/judgement debtors in Title

Execution Case No. 3 of 2017and said application was

registered as Misc Case No. 48 of 2018. Opposite

parties/judgement debtors contested the said misc case by

filing written objection contending, inter alia, that bailiff did

not visit the suit premises on 06.07.2018 and also denied any

resistance. In course of hearing bailiff and learned advocate

Commissioner testified that without police assistance writ of

delivery of possession could not be executed. On the other

hand opposite party no. 1 and 2 deposed on behalf of the

judgment debtors that bailiff did not visit the suit property on

06.07.2018.

4. After hearing both sides and considering evidence Learned

Executing Court returned his findings as follows:-

" Having regard to the submission from both

sides and evidence on record and the final

decree and sketch map, I do not find any other

way of entrance into the suit premises except

the narrow common passage which ends in

blocking of concrete wall. It is also reflected from

the final report of Ld. Advocate Commissioner. It

has been seen from the said final report that the

said entrance was blocked by the defendant.

Now the question which comes before this court

is whether in Misc. Case of police help, can court

pass the sue moto order for destruction or

removing of the said concrete blockage. In my

opinion, the prayer for police help filed by the

DHR/petitioner is premature even if police order

is passed, police cannot enter into the suit

premises and can not break the said boundary

wall. So far, no such prayer made by the DHR in

this case. There is also ambiguity in the report

of the bailiff and other witnesses. In this

situation, allowing police help will serve no

purpose unless there is order for destruction of

the said entrance gate in the main execution

suit. So far no such prayer made by petitioner is

considered and rejected being premature. The

Misc. Case 48 of 2018 is thus disposed of. Both

parties are directed to take steps in the original

execution suit. To 17/12/22 for appearance

before ht execution suit. Parties to take proper

steps."

5. Learned Advocate, Mr. Ganesh Shrivastava, has contended

that opposite parties/defendants never raised any such plea of

wall in the written objection against the petition for police

help. Mr. Shrivastava relied on bailiff's report and site plan

prepared by the Commissioner where common passage is

shown. Parting with his argument Mr. Shrivastava contended

that Commissioners report was never challenged by the

judgment debtors and final decree was passed without any

objection.

6. In opposition to that, learned advocate, Ms. Anyasha Das,

referred to the Commissioner's report and submitted that

Commissioner entered into the premises through a cover

passage and referring to bailiff's report it is submitted that

bailiff never visited the suit property and report of bailiff is

confusive.

7. From the entire material on record particularly the

Commissioners report, it comes to my view that at the time of

Commission work Learned advocate for the plaintiff submitted

that the entry into the suit premises and premises no. 2C/1 is

the same and the passage mentioned above to the suit

premises blocked by the defendants. On being asked by the

Commissioner defendants/judgements debtors and their

learned advocate disclosed that there is only a side vacant

space now covered by a room and as such there was no entry

for the suit premises as the premises no. 2C/1 is owned by the

defendants and accordingly defendants resisted the

commissioner to go into the suit premises through their newly

constructed room and informed the Commissioner that the

passage of the suit property is in the northwestern side which

was blocked by the owner premises no. 1/A, Kundu Lane, who

resisted the learned Commissioner to enter into the suit

premises through that particular passage of premises no.

1/A(Page 2 of the Commissioners report).

8. Considering that situation learned Commissioner opined that

it was not possible to proceed with the Commissioner's work

without police assistance as the plan submitted to the

Commissioner showed that the passage to the suit premises is

the above North Western passage belonging to premises 1/1 &

1/B, Kundu Lane (page 3 of the Commissioners report).

9. Learned Commissioner further reported that he had drawn a

rough sketch map of the suit premises and measured a

passage in the west side leading to the suit property blocked

by Sri Baisak Kundu and Sri Anil Das Chowdhury being the

owners of the neighbouring premises (at the bottom of page

no. 3 & top of page no. 4 of the commissioners report).

10. Thereafter, learned Commissioner ultimately entered into

the suit premises through a cover space in the Eastern side of

the suit premises and at that time learned advocate on behalf

of the defendants drew the attention of the Commissioner

regarding ovens, utensils, water jar, ceiling fan, two cots with

bedding etc. and one portion used as kitchen and other as bed

room, which is a space belonged to premises no. 2C/1.

11. After careful scrutiny of the Commissioners report, I find

hardly any scope to hold that there is passage for entering into

the suit premises. From the Commission's report, it is found

that learned Commissioner entered into the suit premises

through a covered space (used as a room). Therefore, I am

unable to disagree with learned Judge on the issue of blocked

entrance. Thereby, learned Judged could not allow police help

with a suo moto direction for removal of the blockage with the

assistance of police. Accordingly, learned Judge gave the

liberty to the parties to the misc. case to take proper steps.

12. In the aforesaid view of the matter, I find no reason to

interfere with the order impugned passed on 19.11.2022 in

connection with Misc. Case No. 48 of 2018 invoking the

Provision of Article 227 of the Constitution of India.

13. Accordingly, the revision application no. CO 288 of 2023

stands dismissed without any order as to cost, with a liberty to

the petitioners/decree holders to take steps before the

Executing Court for removal of obstruction on the passage of

suit property, in terms of Commissioners final report.

14. Thus, let a copy of this order be communicated to the

Learned Civil Judge, Senior Division/Small Causes Court For

information.

15. Pending application, if any, stand disposed of as well.

16. All parties to this revisional application shall act on the

server copy of this order downloaded from the official website

of this Court.

17. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

[BIBHAS RANJAN DE, J.]