Gauhati High Court

Bhupendra Nath Bora vs Kamal Chandra Hazarika And 10 Ors on 19 December, 2022

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GAHC010234692016




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

                         Case No. : CRP/161/2016

         BHUPENDRA NATH BORA
         S/O- LT. UMAI BORA, VILL.- CHAKAI BORGAON, MOUZA-
         GAKHIRKHOWA, TEOK, DIST.- JORHAT, ASSAM.



         VERSUS

         KAMAL CHANDRA HAZARIKA and 10 ORS
         S/O- LT. GENDHAI HAZARIKA, TINGKHONG, RATANPUR GAON,
         DIBRUGARH, ASSAM.

         2:SARUSOWALI HAZARIKA
         W/O- LT. GENDHAI HAZARIKA
         TINGKHONG
          RATANPUR GAON
          DIBRUGARH
         ASSAM.

         3:DIGANTA DAS


         4:PROMOD DAS


         5:KHUMADAR DAS


         6:PHATIK DAS


         7:MISS KAMALASWARI DAS
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            8:DHARMESWAR DAS
            ALL FROM SL. NO. 3 TO 8 ARE THE SONS AND DAUGHTERS OF LT.
            HEMORAM DAS
             R/O VILL/TOWN- TEOK TALEA GAON
             P.O.- TEOK
            TEOK TOWN
            WARD NO. 4
             DIST.- JORHAT
            ASSAM.

            9:MOLESWAR DAS
            TEOK TALEA GAON
             P.O.- TEOK
            TEOK TOWN
            WARD NO. 4
             DIST.- JORHAT
            ASSAM.

            10:ANIL GOGOI
             LAT MANDAL OF REVENUE VILLAGE NAOBOISHA GAON
             MOUZA- GAKHIRKHOWA
             UNDER TEOK REVENUE CIRCLE
             JORHAT

Advocate for the Petitioner   : MS. A CHOUDHURY

Advocate for the Respondent : MS. P BHATTACHARYA R-3-9

BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

Date of Order pronounce : 19.12.2022 JUDGMENT AND ORDER(CAV)

Heard Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr.

K. Bhattacharjee, learned counsel for the respondents.

2. The present petitioner filed a suit being Title Suit No. 54 of 1980 Page No.# 3/9

against the present respondent Nos.1 to 9 for specific performance of contract for sale and for decree of execution of a sale deed in favour of the plaintiff. The said suit was contested by the present respondent nos. 1 to 9 and finally it was decreed vide judgment and decree dated 16.6.1981.The said decree was challenged by one Hemoram Das and Maleswar Das by way of another suit being Title Suit No. 76/ 1987 praying for a declaration that decree dated 16.6.1981 passed in Title Suit No. 54 of 1980 is void and inoperative in law on the ground that that the said decree was obtained by fraud and misrepresentation. Further, declaration was sought for right, title and interest and confirmation of possession of the suit land described in Title Suit No. 76 of 1987. The said suit was contested by present petitioner and finally the learned Civil Judge, (Jr.Division) No.1 by its judgment and decree dated 15.12.2003 dismissed the said suit. The schedule-A land of Title Suit No. 54/2018 and Schedule-B land of Title Suit No. 76 /1987 is same and one.

3. Being aggrieved, the plaintiff in Title Suit No. 76 of 1987 preferred an appeal which was registered as Title Appeal No. 3 of 2004 and the said appeal was also dismissed by the learned Appellate court by its judgment dated 30.6.2005.

4. The petitioner had filed an execution case for execution of judgment and decree dated 16.6.1981 passed in Title Suit No. 54 of 1980 and same was registered as Title Execution Case no. 18/2006.

5. The plaintiff in Title Suit No.76/1987 preferred a petition under Order 21 Rule 97 in Title Execution Case no. 18/2006, which was registered as Misc Case No.40/2007. The said petition was also dismissed by the learned Executing court below under its order dated 2.2.2009.

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Thereafter, the decree in Title Suit no. 54/1980 was partly executed by execution of a sale deed in respect of a suit land bearing sale deed No. 256 of 2011 on 22.2.2011. However possession was not handed over.

6. It is the further case of the petitioner that the Executing court under its order dated 3.4.2013 directed the Nazir to execute the decree completely with the help of police and pursuant to such order on 19.4.2013 the Lat mandal of village Naobaisha handed over a plot of land measuring 1 bigha 2 katha 15 lessas out of the decreetal land and the petitioner had taken possession of the same. However, it is the further claim of the petitioner that the remaining decreetal land of 2 bigha 4 kathas of same patta has not been handed over to the petitioner by the Lat Mandal by making necessary measurement.

7. Thereafter the Nazir submitted report on 9.4.2013 intimating the Executing Court that decreetal land of 2 bighas 4 kathas under Dag Nos. 587, 589 and 592 of the same Patta No. 23 could not be handed over to the petitioner by the Lat Mandal by making necessary measurement as Patta Holder of Dag Nos. 587,589 and 592 are found different , they were not parties to the said suit and also the boundaries are different and therefore the decreetal land could not be identified.

8. Being aggrieved by the above reports of Lat Mandal as well as Nazir and having no alternative way the petitioner filed an application being Misc (J) Case No. 80/13 before the Executing Court u/s 47 read with Section 151 of the Code of Civil Procedure with a prayer to call for the entire case records including T.S. No.76/87, T. A. No. 3/2004 and Misc (J) No.40/07 and prayed for reopen the execution proceeding and to execute the decree according to the law.

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9. After hearing the aforesaid application and going through the materials on record, the Executing Court held that the identity of the decreetal land of T. S.No. 54/80 never come into question and the learned court further observed after going through the records that steps for possessory warrant was taken for several times but the execution could not be made for the threat of breach of public peace.

10. Thereafter, the petitioner filed the Review petition being Review Application No. 3/2015 before the Court. As such Review petition was dismissed by Executing court by its order dated 5.8.2015. Accordingly, the present application is filed with a prayer to set aside the order dated 5.8.2015 and with a further direction to the Executing Court to pass appropriate order to execute the decree as per schedule of the decree.

11. The learned counsel for the petitioner submits that from the records it is apparent that decreetal land is easily identifiable. However, the respondent Hemoram Das in collusion with the Nazir of the Court and Lat Mandal had made an attempt to resist the Executing Court to Execute the decree and learned Executing court could not have dismissed the application of the petitioner. The counsel further submits that the application of Hemoram Das filed under Order 21 Rule 97 CPC had already been dismissed. Therefore the learned court ought not to have accepted the report of the Nazir and ought to have directed the authority to execute the decree.

12. Per contra learned counsel for the respondents submits that the learned Executing court had no option but to dismiss the application inasmuch as the Executing court cannot go beyond the report of the Nazir, which is based on the field verification of the Lat Mandal and therefore, the Page No.# 6/9

present petition is liable to be dismissed.

13. Law is by now well settled that Executing Court would be in discretion to take such steps as may be necessary for fixing identity of the property and thereafter to hand over the possession. In this regard, this court can very well rely on the judgment of Hon'ble Apex Court in Pratibha Singh and another Vs. Shanti Devi Prasad and another reported in (2003) 2 SCC 330.

14. It is equally well settled that a successful plaintiff cannot be informed after long years of protected litigation that he is not entitled to the benefit of the decree, he earned in all this years. Therefore in the aforesaid backdrop the learned executing court below could not have straight way relied on the report of the Nazir and closed the execution inasmuch as, no dispute has ever been raised regarding identity of the decreetal land in question, no Pattadar has also raised any objection after resistance from the pre-decessor in interest of the respondent Nos.3,4,5,6,7 and 8 and such resistance was also rejected by the Executing Court itself. In the said petition similar objections were also raised as that of reported in Mandal's Report. However, unfortunately the Executing Court has not considered the aforesaid materials and the determination earlier made by the court and passed the order mechanically, which resulted in failure and miscarriage of justice. The Executing court instead of executing the decree as per law, had given overweight to the Lat Mandal's report, which is contrary to the findings of Trial Court as well as appellate Court. The learned Executing Court instead of taking recourse of law execute the decree, rejected the prayer made by the petitioner by order dated 16.9.2014 and as a result of which the decree holder failed to get the fruit Page No.# 7/9

of the decree.

15. The boundary of suit land has specifically been described in the plaint and part of the decree has already been executed. The pre-decessor-in- interest of the respondent Nos. 3,4,5,6,7 and 8, namely Hemoram Das unsuccessfully resisted such execution of decree exactly on the similar ground of identity of the land and not being a party to the suit. Presently nobody has come before the Executing court claiming ownership over the dag Nos. 587, 589 and 592 on the ground that they are owners of the said dag or that they are not parties to the original suit. A new case has been made out by the Lat Mandal which is not his job. Neither the Lat Mandal can refuse to identify the decreetal land on the ground that those persons were not parties to the suit nor on the ground that boundaries are not identifiable inasmuch the Executing court is not powerless to get the land identified so that decree of a court is properly executed.

16. When even the boundaries are not identifiable then also a duty is cast upon the Executing court to get the decreetal land identified for the purpose of execution. In the case of Pratibha Singh (supra) the Hon'ble Apex Court at para 17 held as under:

"17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case-which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, Page No.# 8/9

it may be corrected under Section 152 of the CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the CPC."

17 However, the learned court below has ignored such settled proposition of law and refused further execution of decree in total ignorance of law. This court in the case of Monoranjan Dutta vs. Narayan Dhar reported in 2006 (4) GLT 160 even held that failure to give description of suit property by giving boundaries etc. in plaint is not fatal and can be cured at later stage. It has been held that providing those descriptions are only optional to the plaintiff and not obligatory one and in the present case, the boundary has duly been given, sale deed has been executed in terms of the decree, possession of a portion of decreetal land has already been delivered in execution of the decree.Therefore,the Executing Court could not have any problem in identifying the land and/or dealing with the report of the Lat Mandal regarding non identification of the decreetal land.

18.Therefore, in view of the above, this revision petition is allowed with the following directions:

(i) Order dated 16.09.2014 passed in Misc.(J) Case No. 80/2013 and order dated 5.8.2015 passed in Misc (J) 3/2015 are set aside.

(ii) The Executing court shall consider the Misc (J) Case No. Page No.# 9/9

80/2013 afresh and after going through the record of the case and after affording the parties an opportunity of hearing decide the case and do the necessary exercise for execution of the decree.

(iii) If necessary the learned trial court shall obtain the Map from the Revenue authorities and take assistance of the higher Revenue Authority and thereafter pass necessary order.

(iii) While passing such order, the learned trial court below shall take note of settled proposition of law, also take note of the decree, and schedule of the decreetal land, as given in the plaint and the decree.