Chattisgarh High Court
Smt. Rupkunwar vs Prabhudayal Keshawarwani on 19 May, 2021
-1-
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for orders on :24/03/2021
Order passed on :19/05/2021
WP227 No. 185 of 2020
1. Smt. Rupkunwar W/o Late Shri Dhansai Kewat, Aged About 67 Years,
R/o Village Hasuwa, Thana Gidhouri, Tahsil Kasdol, Civil and Revenue
District Balodabajar-Bhatapara Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
2. Ravikiran S/o Late Shri Dhansai Kewat, Aged About 45 Years, R/o
Village Hasuwa, Thana Gidhouri, Tahsil Kasdol, Civil and Revenue
District Balodabajar-Bhatapara Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
3. Krishna Kumar S/o Late Shri Dhansai Kewat, Aged About 45 Years, R/o
Village Hasuwa, Thana Gidhouri, Tahsil Kasdol, Civil and Revenue
District Balodabajar-Bhatapara Chhattisgarh District : Balodabazar-
Bhathapara, Chhattisgarh (Defendants)
---- Petitioners
Versus
1. Prabhudayal Keshawarwani S/o Shri Indrajeet Prasad Kesharwani,
Aged About 71 Years, R/o Village Hasuwa, Thana Gidhouri, Tahsil
Kasdol, Civil and Revenue District Balodabajar-Bhatapara
Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh
2. Nawal Kishore S/o Shri Indrajeet Prasad Kesharwani, Aged About 58
Years, R/o Village Hasuwa, Thana Gidhouri, Tahsil Kasdol, Civil and
Revenue District Balodabajar-Bhatapara Chhattisgarh District :
Balodabazar-Bhathapara, Chhattisgarh (Plaintiffs)
3. State of Chhattisgarh through Collector Raipur Now Balodabajar
Chhattisgarh)., District : Balodabazar-Bhathapara, Chhattisgarh
(Defendant No.2)
4. Prakash Kumar S/o Late Shri Dhansai Kewat, Aged About 27 Years R/o
Village Hasuwa, Thana Gidhouri, Tahsil Kasdol, Civil and Revenue
District Balodabajar-Bhatapara Chhattisgarh (wrongly mentioned died in
order sheet), District : Balodabazar-Bhathapara, Chhattisgarh
(LRs. of Defendant)
----Respondents
For Petitioners - Shri Ravindra Sharma and Shri Sunil Sahu, Advocates.
For Respondent No.1 - Respondent No.1 Prabhudayal Keshawarwani in
person.
For State/Respondent No.3 - Shri Adil Minhaj, Govt. Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
CAV Order
19-05-2021
1. This petition under Article 227 of the Constitution of India has been
brought seeking indulgence of this Court to quash the orders dated 13-01-
2020, 17-01-2020 and 24-01-2020 passed in Execution Case no.55A/2002 by
the Court of Civil Judge Class-I Kasdol, District- Balodabazar.
2. The petitioners are LRs. of the judgment debtors in the execution case
mentioned hereinabove. One application was filed under Section 47 of the
CPC objecting on the maintainability of decree, which was dismissed vide
order dated 13-01-2020 and one warrant for possession was issued by the
Court. One report was received unserved on 17-01-2020, in which it was
reported that the Revenue Inspector and Patwari made demarcation of the
land on the spot and found that the petitioners are in possession of only 0.01
acre of land in Khasra No.961. Learned Executing Court then passed the order
dated 17-01-2020 that whatever may be the condition the petitioners/judgment
debtors be evicted from the land and building in their possession and the same
be delivered to the respondent-decree holder and warrant of possession was
issued again. On 24-01-2020 the process were not returned, therefore, another
date was fixed for report on the process, that is, the warrant of possession.
3. It is submitted by learned counsel for the petitioners that the suit
property was Khasra No.961 measuring 0.045 hectares regarding which the
respondent had decree for possession against the petitioners. In the order
sheet dated 15-01-2018 learned executing Court has mentioned that according
to the report of bailiff, the Patwari and the R.I. had measured the spot and
found that the petitioners are in possession of 0.01 acre of land and they have
also released their possession from the same. The learned executing Court
then ordered that as the remaining land of the suit land is not available on the
spot, therefore, the decree has become inexecutable and the execution
proceeding was closed. This order was challenged in WP227 No.736 of 2018
which has been disposed off by order dated 14-10-2019, in which this Court
allowed the petition and restored the execution case and directed the
executing Court to proceed with the execution case.
It is submitted that consequent to the order of the High Court, the trial
Court got the land demarcated. The report was submitted by the Tahsildar,
Kasdol again, according to which, the petitioners were found in possession of
only one decimal land of the suit property. The Patwari and the Revenue
Inspector and respondent-decree holder were examined, but nowhere
established that the petitioners are in possession of any additional land of
Khasra No.961 apart from one decimal of land which has been reported to be
in their possession. Hence, the execution of the decree is inexecutable. The
petition be allowed and the relief be granted to the petitioners.
4. It is submitted by respondent No.1 in person opposing the submission
made by the petitioners' counsel that the petitioners are adopting dilatory
tactics because of which respondent No.1/decree holder is getting harassed.
The petitioners have manipulated in the revenue records. The order in WP227
No.736 of 2018 had been clearly in favour of the respondent and it is this order
which has to be taken into consideration and respondent No.1/decree holder
be granted relief of possession. The report on which the petitioners are relying
is incorrect report. The Revenue Inspector has admitted in his statement before
the executing court that the demarcation made was not proper. The
demarcation is incorrect for the reason that the measurement has been made
from south to north which should have been made from north to south. Hence,
the demarcation report is not reliable and respondent No.1 is entitled for relief
of possession according to the decree in his favour. Therefore, the petition be
dismissed.
5. Learned counsel for the petitioners submits in reply that the revenue
Inspector has not made any such statement, that the demarcation made was
incorrect. The report of the Tahsildar dated 19-12-2019 is very much clear
according to which the decree against the petitioners is inexecutable. Hence,
the objection of the petitioners under Section 47 of the CPC was sustainable.
Therefore, it is prayed that the petition be allowed.
6. Heard learned counsel for the parties and perused the documents.
7. There is no dispute that respondent No.1 and 2 have decree in their
favour for possession of land Khasra No.961 measuing 0.045 hectares. The
executing Court had pursuant to the order of this Court in WP227 No.736 of
2018 for the purpose of clarifying the possession on the spot, directed for
demarcation regarding which the report was submitted on 19-12-2019. It is
mentioned in this report that the petitioners are in possession only 1 decimal
land in Khasra No.961, however, they are in illegal possession in Khasra
No.960/2 in area of 05 decimal on which their house is constructed. In making
total measurement of Khasra No.961 measuring is 0.227 hectares, the report
has been submitted as follows:-
"vfHkys[k esa [kljk ua- 961 dk dqy jdck&0-227 gs- gSA ftlesa %&
(1) [k- ua- 961 ds VqdM+k 0-004 gs- ij vkosnd dks dCtk fnykus dh dk;Zokgh le; vkosnd ekSds ls
pyk x;kA
(2) [kua-961 ds VqdM+k 0-032 gs- [kkyh Hkwfe ij orZeku es xksfoUn firk jkeizlkn dk dCtk gSA
(3) [k-ua- 961 ds VqdM+k 0-017 gs- ij lsrjke firk fQ# /kksch ds }kjk edku ckM+h cuk;k x;k gSA lsrjke
ds }kjk [k-ua- [email protected] ds jdck 0-017 gs- Hkwfe dk cqf} ckbZ ds uke ij dz; dh xbZ gS ysfdu ekSds ij dCtk
[k-ua- 961 ds varZxr gSA
(4) [k-ua-961 ds jdck 0-016 gs- dk fMxzh/kkjh dks iwoZ es vyx izdj.k esa xksfoUn jke firk jkeizlkn ls
dCtk fnyk;k x;k gSA
(5) [k-ua-961 ds 'ks"k Hkwfe jdck&0-158 gs- ij vkosnd dk dCtk gSA "
On making addition of the land in possession of various persons out of the
area 0.227 hectare, the respondent No.1 is in possession of 0.158 hactare +
0.016 hectare, that is, total of 0.174 hectare, there is clear report that on 0.032
+ 0.017 hectare that is total 0.049 hectare is in possession of other persons
namely Govind S/o Ramprasad and Setram S/o Phiru Dhobi, therefore,
remainder land is only 0.004 hectare which was found in possession of the
petitioners. This is the factual position on the spot where the suit land is
situated.
8. Learned trial Court has examined the Patwari, Revenue Inspector and
the decree holder, respondent No.1. These statements were considered in the
order dated 13-01-2020, in which the report of Tahsildar has been disbelieved
and again the order has been passed by issuing warrant of possession.
9. The fact position which has been presented before the Court in the
shape of a report by the revenue officers if found unsatisfactory, in that case
the executing Court had option to direct re-demarcation of the suit property. In
this case the learned executing Court in a manner rejected the report
submitted by the Tahsildar and disbelieved the same, but instead of taking the
right approach for ordering re-demarcation, the warrant for possession has
been issued. Unless and until there is clear finding that the petitioners are in
possession of the suit property as described in the decree, the decree cannot
be executed in a fair manner. Therefore, this petition is allowed and the
impugned order dated 13-01-2020 is set aside, the finding of the trial Court
regarding issuance of warrant of possession is set aside. Finding of the
executing Court regarding the demarcation report of the Tahsildar is not
interfered with. The learned executing Court is directed to order fresh
demarcation of the suit property and after receiving the report of the same
proceed with the execution in accordance with law.
10. The petition stands disposed off.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Aadil
