Chattisgarh High Court
Smt. Sumitra Devi Saraf vs Smt. Vidyawati Saraf on 18 July, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP227 No. 163 of 2021
1. Smt. Sumitra Devi Saraf Widow Of Motilal Aged About 74 Years Reisdent Of
Mahima Niwas, Behind Motilal Service Station, Link Road, Bilaspur, District-
Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh
2. Shivkumar Saraf Son Of Motilal Aged About 57 Years Reisdent Of Mahima
Niwas, Behind Motilal Service Station, Link Road, Bilaspur, District- Bilaspur
(Chhattisgarh), District : Bilaspur, Chhattisgarh
3. Deepak Kumar Saraf Son Of Motilal Aged About 54 Years Reisdent Of Mahima
Niwas, Behind Motilal Service Station, Link Road, Bilaspur, District- Bilaspur
(Chhattisgarh), District : Bilaspur, Chhattisgarh
4. Rashmi Singh Wife Of Shri Dharmendra Singh Aged About 51 Years Resident
Of 25 Bungalow, Maharana Pratap Chowk, Bilaspur (Chhattisgarh), District :
Bilaspur, Chhattisgarh ---- Petitioners
Versus
1. Smt. Vidyawati Saraf Wife Of Lakhanlal Saraf Aged About 82 Years Resident
Of Geetanjali Nagar Kashyap Colony, Gali No. 5, Bilaspur, Tahsil And District-
Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh
2. Radheshyam Saraf S/o Lakhanlal Saraf, Aged About 63 Years Resident Of
Geetanjali Nagar (Wrongly Mentioned As Gatanjali Nagar), Kashyap Colony,
Gali No. 5, Bilaspur, Tahsil And District- Bilaspur (Chhattisgarh), District :
Bilaspur, Chhattisgarh
3. Smt. Shivani Saraf D/o Lakhanlal Saraf Aged About 57 Years Resident Of
Geetanjali Nagar (Wrongly Mentioned As Gatanjali Nagar), Kashyap Colony,
Gali No. 5, Bilaspur, Tahsil And District- Bilaspur (Chhattisgarh), District :
Bilaspur, Chhattisgarh
4. Smt. Ramana Saraf D/o Lakhanlal Saraf Aged About 45 Years Resident Of
Geetanjali Nagar (Wrongly Mentioned As Gatanjali Nagar), Kashyap Colony,
Gali No. 5, Bilaspur, Tahsil And District- Bilaspur (Chhattisgarh), District :
Bilaspur, Chhattisgarh
5. Smt. Minakshi Saraf D/o Lakhanlal Saraf Aged About 42 Years Resident Of
Geetanjali Nagar (Wrongly Mentioned As Gatanjali Nagar), Kashyap Colony,
Gali No. 5, Bilaspur, Tahsil And District- Bilaspur (Chhattisgarh), District :
Bilaspur, Chhattisgarh
6. Purushottam Saraf S/o Lakhanlal Saraf Aged About 47 Years Resident Of
Geetanjali Nagar (Wrongly Mentioned As Gatanjali Nagar), Kashyap Colony,
Gali No. 5, Bilaspur, Tahsil And District- Bilaspur (Chhattisgarh), District :
Bilaspur, Chhattisgarh ---- Respondents
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For petitioners : Mr. Manoj Paranjpe, Advocate.
For respondent No. : Mr. Ravindra Agrawal, Advocate.
1, 3, 4 and 5.
For Respondent No.6 : Mr. T.K. Jha, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas.
Order on Board
(18-07-2022)
1. Learned counsel for the petitioners would submit that the learned trial
Court has committed illegality in dismissing the application filed under
Section 47 of the C.P.C., by recording a perverse finding as the
petitioners have categorically pleaded in their application that the
decree holder has filed an execution case before the trial court
wherein he has filed an application for taking possession of 94
decimal land which comes to 40,984 sq.feet whereas the decree has
been passed by the learned trial court is 0.94 decimal land ie.,., 410
sq.ft, as such he is claiming beyond the terms of decree, therefore,
the execution proceeding initiated by the decree holder deserves to
be rejected.
2. The aforesaid submission was vehemently opposed by the
respondents/ decree holder and have submitted reply mainly
contending that the petitioners are well aware of the facts of the case
that the decree was for 94 decimal land ie., 40,984 sq.ft and he is not
aware of the fact that the decree was granted for this area only.
3. Learned counsel for the respondents/decree holder would submit that
decree was assailed by before the First Appellate Court which was
dismissed, against that he has preferred SLP before the Hon'ble
Supreme Court which was also dismissed. The learned Executing
Court in MJC No. 253 of 2019 vide its order dated 27-2-201 has taken
a note of fact in its para 11 of the judgment and accordingly dismissed
the said application.
4. Learned counsel for the petitioners would submit that the finding
recorded by the Executing Court is perverse as there is no pleading
about 94 decimal land and no suit was filed for claiming for
possession of 94 decimal of land by the original plaintiff before the
trial court but he has tried to grab the land beyond the terms of
decree. This vital aspect has not been considered by the learned
trial court, therefore, the finding is perverse and contrary to the record
and same deserves to be set aside.
5. On the contrary, learned counsel for the respondents vehemently
opposed the submission made by learned counsel for the petitioners
and would submit that the order passed by the learned trial court in
MJC No. 253 of 2019 is legally justified and does not warrant any
interference and after perusing the judgment passed by the trial
court , the first appellate court affirmed the same and has passed
well reasoned order which does not call for any interference.
6. I have heard learned counsel for the parties and perused the record of
the court below.
7. From the facts of the case placed on record, it is not in dispute that
the original decree was passed regarding 94 decimal land for taking
possession of land and this decree was affirmed by this court and
also affirmed by the Hon'ble Supreme Court, therefore, no objection
whatsoever was raised with regard to area of the disputed by the
defendants, therefore, at this juncture, the petitioners cannot take
such plea, therefore, there is no perversity or illegality in the order
passed by the trial court warranting any interference by this court.
8. Accordingly, the instant writ petition is dismissed. Interim relief
granted earlier stands vacated.
9. However, it is expected that the trial court should make endeavour to
complete executing proceeding within outer limit of nine months from
the date of receipt of a copy of this order.
Sd/-
(Narendra Kumar Vyas)
JUDGE
Raju
