Calcutta High Court (Appellete Side)
Smt. Tara Sinha & Ors vs Smt. Ava Rani Paul & Ors on 21 August, 2023
21.08.2023
Item No.15
CP/SB
C.O. 892 of 2023
Smt. Tara Sinha & ors.
Vs.
Smt. Ava Rani Paul & ors.
Mr. Subhrendu Halder
Mr. Abhirup Halder
...for the petitioners.
The revisional application has been filed
challenging an order dated January 17, 2023, passed
in Misc. Appeal No. 245 of 2022, by the learned
Additional District Judge, Fast Track, 5th Court at
Alipore. The Misc. Appeal was filed against an order
dated July 22, 2022, passed by the learned Civil
Judge (Junior Division), 1st Court, Alipore in Misc.
Case No. 23 of 2022. Misc. Case No. 23 of 2022 was
an application under Section 47 of the Code of Civil
Procedure which was rejected by the executing court.
The Misc appeal was preferred.
The plaintiffs had instituted Title Suit No. 360
of 2003 before the learned Civil Judge (Junior
Division), 1st Court, Alipore. The suit was for
declaration and recovery of possession of an
encroached area measuring about 120 sq. ft. A
learned commissioner was appointed and the learned
commissioner found encroachment. The
encroachment was over 103 sq. ft. delineated in red
border in the map prepared by the commissioner.
The learned Civil Judge decreed the suit on contest
granting recovery of possession from the entire 120
sq. ft. The first appeal was dismissed by the learned
District Judge at Alipore on contest. The second
appeal preferred before the High Court was also
dismissed. The decree attained finality.
The decree holder put the decree into execution
by filing Title Execution Case No. 67 of 2018. In
connection with the said Execution Case, an
application under Section 47 of the Code of Civil
Procedure was filed which was registered as Misc.
Case No. 23 of 2022. In the Misc. Case, the judgment
debtor contended that the trial court did not adhere
to the report of the commissioner and decreed the
suit in respect of 120 sq. ft. instead of 103 sq. ft. as
depicted in the learned commissioner's report.
The learned Additional District Judge held that
although Commissioner's report indicated
encroachment of 103 square feet, the Commissioner
was examined on oath and the trial court accepted
the plaint case, instead of totally relying on the
Commissioner's report.
The misc. case was dismissed on the ground
that the executing court could not alter, verify or
correct the terms and conditions of the decree.
The decree of the trial court had attained finality
as the appeal preferred by the petitioner was
dismissed up to the High Court.
The direction upon the defendant to demolish
the illegal structure on Schedule B property by
decreeing the suit and granting the plaintiff recovery
possession from the entire Schedule B property had
been affirmed in the first appeal as also in the second
appeal.
At the stage of execution, the judgment debtor
could not take a plea that the demolition should be
directed only in respect of the 103 sq. ft. as per the
Commissioner's report and not over the entire B
Schedule property which comprised of 120 sq. ft.
The trial court had accepted the plaint case
upon evidence. The Commissioner also was
examined, but the learned trial court found on
evidence that the plaintiffs were successful in proving
encroachment over the entire B Schedule property.
Such finding of the fact was upheld at every stage of
the suit.
Hence, the executing court could not go behind
the decree and modify the decree by directing
demolition from a part of the B Schedule property.
The learned executing court rightly rejected the misc.
case and the learned lower appellate court also
committed no mistake. The revisional application
fails.
The decision of the Hon'ble Apex Court of
Madras in A. Rajnish. Vs. T. P... reported in 2021
Supreme (Mad) 1991 does not apply in the facts of
this case, although emphasis has been placed on
paragraph 21 of the said decision.
The decision was rendered in completely
different facts and circumstances. It was held that in
case of violation of an order of injunction, the
inherent power could be invoked to set aside the
wrong and do the right, as it was the duty of the
court as a policy not to perpetuate a wrong doing.
Such an order applies to cases where an order of
injunction is violated by a party or a party does not
comply with certain directions passed in the ad
interim stages of the suit.
In the case in hand, the suit was decreed in its
final form directing demolition of the structures on B
Schedule property, upon the court coming to the
finding on evidence before it, that the encroachment
was in respect of the entire B Schedule property.
Such finding of the trial court was upheld in the first
appeal as also in the second appeal.
Thus, the facts are distinguishable and the
executing court, under no circumstances, could
reappreciate the evidence and hold that the trial
court was wrong in directing recovery of possession
from the entire B Schedule property.
The revisional application is thus dismissed.
There shall be no order as to costs.
Parties are to act on the server copy of this
order.
(Shampa Sarkar, J.)
