Anjali Das vs Nurun Nissa
2021 Latest Caselaw 33 Gua

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GAHC010003372020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : I.A.(Civil)/68/2020

            ANJALI DAS
            D/O LATE KUMAR SINGH AND LATE PUTALI DAS AND THE WIFE OF SRI
            BIJAY MISHRA, R/O NALIAPOOL, NEAR NAINA CINEMA HALL, P.O., P.S.
            AND DIST. DIBRUGARH, ASSAM, PIN 786001



            VERSUS

            NURUN NISSA
            W/O MD. HASSAN ALI, R/O A.T. ROAD, NALIAPOOL, NEAR NAINA CINEMA
            HALL, P.O., P.S. AND DIST. DIBRUGARH, ASSAM.



Advocate for the Petitioner   : MR S DUTTA

Advocate for the Respondent : MR. P J SAIKIA




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 06-01-2021

Heard Mr. S. Dutta, learned senior counsel, assisted by Ms. M. Borchetia, learned counsel for the applicant and Mr. P.J. Saikia, learned counsel for the opposite party.

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2) The plaintiff in T.S. No. 102/2007 is the applicant in I.A. (C) 68/2020. The applicant in I.A. (C) 2606/17 is the defendant in the said suit. The suit was for declaration, eviction from the suit premises. In the said suit, the defendant had filed her written statement- cum- counter- claim, inter-alia, seeking declaration that the plaintiff had no right, title and interest over the suit land described in Schedule-A of the written statement, and, as such, she had no right to dispossess the defendant from her landed property; for declaration that the plaintiff is duty bound to refund the sum of Rs.80,000/- to the defendant along with interest @ 22% p.m. as she took it from the defendant as the value of land described in Schedule-B of the written statement; and alternatively, if the Court deems it fit and the plaintiff is the owner of the said landed property, she may be directed to execute and register the formal sale deed in favour of the defendant within the date fixed by the Court; perpetual injunction restraining the plaintiff, her men, etc., from trespassing into the land property of the defendant described in Schedule-A and/or dispossessing her from her landed property and/or harassing her in any way; and for other reliefs.

3) The applicant in I.A. (C) 2606/17 is the appellant in the connected RSA 64/2018 and the applicant in I.A. (C) 68/2020 is the respondent therein, as such, the parties are referred to as the appellant and respondent for the sake of convenience.

4) As per the plaint, the suit premises is consisting of two rooms measuring 25' X 15' made of kutcha floor, bamboo wall, CI sheet roof standing on a plot of land measuring

131/48 lessas covered by Dag No. 150 of Periodic Patta No. 362 of Gabharupathar Ward (2 nd

Part), Dibrugarh Town Mouza, in the district of Dibrugarh. However, in the written statement two schedules has been mentioned. Schedule-A is a plot of land measuring more or less 70' in length and 14' in breadth, covered by Dag No. 150/152/203/204 under P.P. No. 55/362 situated at A.T. Road, Naliapool, Gabharupathar Ward, Dibrugarh Town Mouza and the house premises standing thereon which is roofing with CI sheet, bamboo made posts and wall, together with facilities of latrine, tubewell, etc. Schedule-B land is the same land as described by the plaintiff in the plaint.

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5) By judgment and decree dated 24.05.2010, the learned Munsiff No.2, Dibrugarh had decreed the TS 102/2007 and dismissed the counter-claim. The appellant preferred an appeal against the judgment and decree passed by the learned trial Court, which was registered as T.A. No. 19/2020. The learned Civil Judge, Dibrugarh by its first appellate judgment and decree dated 10.02.2012, held that the respondent herein did not produce any document to show that the appellant was a tenant and so the appellant was not a tenant under the respondent and so there is no question of default in payment of rent. Accordingly, the decree passed by the learned trial Court was reversed by dismissing the suit by holding that the appellant herein was not a tenant under the respondent herein.

6) The aggrieved respondent had preferred a revision against the first appellate judgment and decree, which was registered and numbered as CRP 95/2012. Against the dismissal of the dismissal of the counter-claim, the appellant had preferred a revision, which was registered and numbered as CRP 207/2012. This Court heard both the revision together and by a common judgment and order dated 31.05.2016, the CRP 207/2012 was dismissed as not maintainable as the decree for dismissal of counter-claim was appealable. However, the CRP 95/2012 was allowed by restoring the decree passed by the learned trial Court.

7) Thereafter, on 14.06.2016, the appellant had filed a second appeal under section 100 CPC, which was accompanied with a separate application for condonation of 1506 days delay, and was registered as I.A. (C) 756/2017. The said interlocutory application was allowed by order dated 23.02.2018 and thereupon the second appeal was registered.

8) On 01.08.2017, the appellant had filed I.A. (C) 2606/2017 for stay of execution of the decree dated 24.05.2010, which is the subject matter of T.Ex. Case No. 9/2016, pending before the learned Court of Munsiff No.2, Dibrugarh. On 11.07.2018, this Court had passed the following order:-

"11.07.2018 Page No.# 4/9

Heard Mr. P.J. Saikia, learned counsel for the applicant as well as Mr. S. Dutta, learned Senior Counsel, assisted by Mr. C. Sarma, learned counsel for the opposite party.

This is an application for stay of execution of the decree dated 24.05.2010, which is the subject matter of the T. Ex. Case No. 9/2016 pending before the Court of learned Munsiff No.2, Dibrugarh.

The learned counsel for the applicant submits that the connected appeal has been preferred against the refusal of the learned first appellate Court to decide the appeal against the rejection of counter claim. It is submitted that the counter claim was filed by the applicant, who was the defendant in T.S. No. 102/2007, that was filed for specific performance of contract in respect of land described in Schedule B to the counter claim.

Per-contra, the learned Senior Counsel for the opposite party has submitted that as per instruction received, the decree passed in the suit was put to execution in the said T. Ex. Case No. 9/2016 and that the decree has been executed by evicting the tenants.

In view of the submissions made by the learned counsel/ Senior Counsel for both sides, this Court is inclined to pass an order on conditional stay to the effect that in the even the applicant has not been evicted on the strength of decree dated 24.05.2010 passed by the learned trial court in T.S. No. 102/2007, in that event the applicant shall not be evicted till03.09.2018 and/ or till the next date of listing whichever is later.

Issue formal notice returnable on 03.09.2018.

No steps is required to be taken as the opposite party has already entered appearance through her learned counsel.

List the matter on 03.09.2018.

9) By filing I.A.(C) 68/2020, the respondent has prayed to clarify and/or to vacate the order dated 11.07.2017 in I.A. (C) 2606/2017 so that the executing Court may execute the decree so passed by directing the Civil Nazir to hand over khas possession of the suit property described in the schedule.

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10) Both sides have been extensively heard at length. While the learned senior counsel for the respondent has submitted that the decree was executed on 03.07.2018 at about 3.30 p.m. when the Civil Nazir had delivered actual physical possession of the decreetal property to the respondent. However, at about 7.00 p.m. on same day, the appellant had made her first attempt to dispossess the respondent- decree holder and then on 04.07.2018 at about 8.00 a.m., the appellant had forcibly broke the boundary/ fencing and dispossessed the respondent from the property. In support of such statement, the learned senior counsel has referred to the following, viz., (1) Report dated 17.07.2017 by the Civil Nazir to the learned executing Court; (2) order dated 18.07.2019, passed by the learned executing Court; (3) order dated 08.08.2019, passed by the learned executing Court; (4) order dated 30.10.2019, passed by the learned executing Court.

11) Per contra, the learned counsel for the appellant has referred to the FIR lodged by her before the Superintendent of Police, Dibrugarh, alleging that she possessing her house situated in a different land and that her belongings had been taken away, further stating that the Court officials did not allow the respondent to dismantle the house as the boundary of her house did not match with the boundary of alleged house of the respondent. It is submitted that the second appeal was otherwise ready for hearing and as the stand of the appellant all throughout that she is in possession of a different land and not the decreetal land, the appellant ought not to be dispossessed from her own residence during the pendency of the appeal.

12) It would be relevant to quote the order dated 18.07.2018 passed by the learned executing Court, which also contains the extract of report dated 17.07.2018 by the Civil Nazir to the learned executing Court, which is as follows:-

"18.07.2018

Both sides are represented.

Nazir's report is received which read as, "on 3.7.18, when they went to execute the decree, the J.D. objected that the decreetal land does not tally with the schedule.

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The D.H. stated not to break the house and also stated that, she does not want the decreetal amount. The D.H. was given the possession of the land and the goods of the J.D. are given in the custody of Sri Pun Deo Kumar Sahu."

However, the D.H. has filed a petition under Order XXI Rule 95 read with Section 151 of CPC stating that, though the Civil Nazir handed over the possession of the decreetal premise to the D.H. on 3.7.18 at around 3:30 p.m., the J.D. later on at around 7.00 p.m. illegally tried to dispossess the D.H. and on 4.7.18 at around 8.00 a.m., the J.D. forcefully broke the boundary/ fencing and dispossessed the D.H. from the property.

Furnish a copy of the petition to the J.D. who is present in the court.

The J.D. has also filed a petition without mentioning any provision under which it has been filed stating that, an advocate commissioner is to be appointed who ascertain whether the house premise as described in the schedule of the plaint is at all existing or not and to ascertain that whether the house of the D.H. wherein she has been residing is having a separate boundary.

Further, the petition is accompanied with the copy of the order wherein it has been stated that, in the event the J.D. is not evicted on the strength of decree dated 24.5.10, passed by the learned trial Court in T.S. No.102/07, in that event, the applicant shall not be evicted till 3.9.18/ till the next date of listing whichever is later.

Fixing 13.08.18 for objection/ objection hearing on both the petitions."

13) Therefore, while the appellant claims that she was sought to be dispossessed from her own land, the stand of the respondent, supported by the report dated 17.07.2018 by the Civil Nazir is that the decree was executed on 03.07.2018 at about 3.30 p.m. when the Civil Nazir had delivered actual physical possession of the decreetal property to the respondent. The conditional interim stay order dated 11.07.2018 passed by this Court in I.A. (C) 2606/2017, as quoted herein before, was to the effect that in the event the appellant has not been evicted on the strength of decree dated 24.05.2010 passed by the learned trial Page No.# 7/9

Court in TS No. 102/2007, in that event she shall not be evicted till 03.09.2018 and/or till the next date of listing whichever is later.

14) From the discussions above, it is seen that while the suit of the respondent- plaintiff was decreed for eviction of the appellant- defendant, the counter-claim of the appellant was dismissed by the learned Courts below. Therefore, in terms of the prayers made in the counter-claim, there is no decree of declaration that the respondent- plaintiff had no right, title and interest over the suit land described in Schedule-A of the written statement, and, as such, she had no right to dispossess the appellant- defendant from her landed property.

15) The categorical assertion of the respondent is that the decree was executed on 03.07.2018 at about 3.30 p.m. when the Civil Nazir had delivered actual physical possession of the decreetal property to the respondent. However, at about 7.00 p.m. on same day, the appellant had made her first attempt to dispossess the respondent- decree holder and then on 04.07.2018 at about 8.00 a.m., the appellant had forcibly broke the boundary/ fencing and dispossessed the respondent from the property. Under such a situation, if a decree- holder is dispossessed from the decreetal land after getting possession of the decreetal land in execution, the provisions of Rule 35 of Order XXI CPC and other related provisions could be validly pressed for second execution with police force for restoration of possession by ousting the judgment debtor. In this regard, the Court may refer with profit to the case of Chameli Debi & Ors. Vs. Dipak Nath & Ors., (2006) 2 GLR 512 . The relevant passage of paragraph 6 (at pp 515-516) thereof is quoted below:-

"It is the arrogance and sheer physical might of Jagabandhu or his legal heirs, the appellant herein, which compelled the respondents to knock the doors of the court again and again and it would be a mockery of justice delivery system if such utter disregard to the decree of a court is allowed to go with impunity. Can it be a sound legal proposition that every time a decree holder is dispossessed after getting possession of lands in execution of a decree for declaration of title and Page No.# 8/9

recovery of possession he is required to file another suit for similar relief Order XXI of the Civil Procedure Code has the elaborate answer rule 35 and other related provisions of which could be pressed into service of second execution with police force for restoration of possession by ousting the imposter. The law of criminal trespass is an another and for protection in appropriate criminal proceeding against the defendant-appellants instead of filing a suit again for declaration of title, which was already earlier declared."

16) It would be relevant to now quote paragraph 9 of the common judgment and order dated 31.05.2016 passed by this Court in CRP No. 95/2012 and CRP 207/12, which is as follows:-

"9. Mr. PJ Saikia, learned counsel for the opposite party submits at this stage that defendant claimed to be in possession of the suit premises described in the Schedule to the plaint. The defendant all along claimed her right, title and interest with respect to the Schedule-A land described in the counter claim which is distinct and different from the land described in schedule to the plaint. He submits that he has no objection if the trial court in respect of the two rooms strictly described in the schedule to the plaint if restored. The finding of the learned first appellate court that the plaintiff could not establish tenancy is hereby is set aside. The trial court decree with respect to the eviction from the suit premises described in the Schedule to the plaint is hereby restored."

17) From the above, it is seen that this Court had restored trial Court decree with respect to the eviction from the suit premises described in the Schedule to the plaint had been restored.

18) There is nothing on record to show that the report of the Civil Nazir dated 11.07.2018 is false, fabricated or manufactured. Therefore, it is not believable that the decree passed in the suit was not executed, as such, preponderance of probability tilts in favour of the respondent that after the decree was successfully executed on 03.07.2018, she was Page No.# 9/9

dispossessed on 04.07.2018. In such an eventuality, the respondent is found to have a right to have the decree executed again as per the ratio laid down by this Court in the herein before referred case of Chameli Debi (supra).

19) Moreover, the eviction suit of the respondent has been decreed, which was reversed in first appeal and the first appellate judgment and decree was reversed by this Court by exercising revisional jurisdiction, which had attained finality upon passing of the judgment and order dated 31.05.2016 in CRP No. 95/2012. Therefore, there appears to be no scope for this Court to stay execution of the decree dated 24.05.2010 passed by the learned Munsiff No.2, Dibrugarh in T.S. No. 102/2007, as affirmed in CRP No. 95/2012. Resultantly, I.A.(C) 2606/2017 stands dismissed and the order dated 11.07.2018 stands vacated. Consequently, there is no requirement of passing any further order in I.A.(C) 64/2018, as such, the same stands closed on dismissal of I.A.(C) 2606/2017.

20) Before parting with the records, it would not be out of place to mention that if the execution of decree is proceeded with, the learned executing Court would execute the same strictly in accordance with the decree.

JUDGE

Comparing Assistant