Page No.# 1/14 vs Kusharam Saharia And 4 Ors
2025 Latest Caselaw 4956 Gua

Gauhati High Court

Page No.# 1/14 vs Kusharam Saharia And 4 Ors on 26 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                          Page No.# 1/14

GAHC010069882024




                                                     2025:GAU-AS:6782

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

                            Case No. : CRP/43/2024

         TILAK DEKA
         SON OF LATE NATURAM DEKA @ NATU KOCH,
         RESIDENT OF VILLAGE- MAHALIAPARA,
         KHAIRABARI, MOUZA- SARABARI,
         P.O.- BURHINAGAR, P.S.- SIPAJHAR,
         DISTRICT- DARRANG, ASSAM,
         PIN- 784147.



         VERSUS

         KUSHARAM SAHARIA AND 4 ORS
         SON OF LATE SATRAM SAHARIA,
         RESIDENT OF VILLAGE- MAHALIAPARA,
         KHAIRABARI, MOUZA- SARABARI,
         P.O.- BURHINAGAR, P.S.- SIPAJHAR,
         DISTRICT- DARRANG, ASSAM,
         PIN- 784147.

         2:MOHAN SAHARIA
          SON OF LATE SATRAM SAHARIA

         RESIDENT OF VILLAGE- MAHALIAPARA

         KHAIRABARI
         MOUZA- SARABARI

         P.O.- BURHINAGAR
          P.S.- SIPAJHAR

         DISTRICT- DARRANG
         ASSAM
                                    Page No.# 2/14

PIN- 784147.

3:ALPANA BARUAH
 DAUGHTER OF SRI SHASHI BARUAH

RESIDENT OF BAGHARIBARI

MOUZA- KALAIGAON

P.O.- KALAIGAON SO

DISTRICT- DARRANG
ASSAM

PIN- 784525.

4:GANAPATI SAHARIA
 SON OF KHARGESWAR SAHARIA

RESIDENT OF RAMGAON

MOUZA- SARABARI
P.O.- PATHORIGHAT

P.S.- KHAIRABARI
 DISTRICT- DARRANG

ASSAM
PIN- 784147.

5:BAKUL SAHARIA
 SON OF LATE SARAT RAM SAHARIA

RESIDENT OF VILLAGE- MAHALIAPARA

KHAIRABARI
MOUZA- SARABARI

P.O.- BURHINAGAR
 P.S.- SIPAJHAR

DISTRICT- DARRANG
ASSAM

PIN- 784147
                                                                      Page No.# 3/14



                                  BEFORE
             HON'BLE MR. JUSTICE DEVASHIS BARUAH

Advocate for the petitioner(s): Mr. BK Bhagawati


Advocate for the respondent(s): Mr. M Hoque

Date of hearing & judgment     : 26.05.2025



                         JUDGMENT & ORDER(ORAL)

Heard Mr. BK Bhagawati, the learned counsel appearing on behalf of the petitioner. Mr. M Hoque, the learned counsel appears on behalf of the respondents.

2. The supervisory jurisdiction of this Court has been invoked challenging the order dated 12.01.2024 passed by the Court of the learned Civil Judge, (Junior Division) No.1, Darrang at Mangaldai (hereinafter to be referred to as the learned Executing Court), whereby the Title Execution Case No.1/2021 was dismissed on the ground that the decree dated 10.09.2018 is an unexecutable decree. The legality and validity of the said order dated 12.01.2024 has been challenged on the ground that the learned Executing Court had failed to exercise its jurisdiction in accordance with law inasmuch as, the learned Executing Court who has the jurisdiction under Section 47 of the Code of Civil Procedure, 1908 (for short, the Code) is empowered to decide all questions relating to execution, discharge or satisfaction of the decree. Taking into Page No.# 4/14

account the said submission so made by the learned counsel appearing on behalf of the petitioner, this Court finds it relevant to take note of the brief facts which led to the filing of the instant proceedings.

3. It is seen that the petitioner herein through the predecessor-in-interest had filed a suit before the Court of the learned Munsiff No.1, Mangaldai, which was registered and numbered as Title Suit No.29/2008 against the predecessor-in- interest of the respondents. The said suit was filed seeking declaration of the plaintiff's right, title and interest over the Schedule-I land as well as for ejectment of the defendants from the Schedule-2 land. It is relevant to take note of that during the pendency of the suit, both the original plaintiff and the original defendant expired.

4. It was the specific case of the plaintiff in the said suit that the plaintiff was the pattadar and possessor of the Schedule-I land. On 01.05.2005 the original defendant, approached the plaintiff to let out his plot of land which was specifically described in Schedule 2 to the plaint ad measuring 35" x 12"

situated at the Northwest corner of the Schedule-I land to the defendant on rent. The plaintiff rented out the Schedule-2 land to the defendant on a monthly rent of Rs.300/- w.e.f. 08.05.2005, under an agreement dated 08.05.2005. On 08.05.2008, the plaintiff requested the defendant to hand over the vacant possession of the Schedule-2 land, however, the defendant did not handover and it is under such circumstances, the plaintiff filed a suit seeking declaration of the plaintiff's right title and interest over the Schedule-I land, which includes the Schedule-2 land as well as for recovery of vacant possession of the Schedule-2 land within one week, from the decree.

Page No.# 5/14

5. It is seen that the Schedule-I and the Schedule-2 lands have been described in the plaint. It is apposite therein to mention that it is the categorical case of the plaintiff that the Schedule-2 land is a part of the Schedule-I land. The original defendant filed his written statement. In the said written statement, apart from taking various preliminary objections, it was categorically stated that the defendant has been in possession of the Schedule-2 land since 1997 by executing one after another lease agreement and paid the rent regularly to the plaintiff for the disputed land and no areas of rent have been left out.

6. It is further relevant to take note of that during the pendency of the suit, the original defendant expired and the respondents herein stepped into his shoes as legal representatives in the said suit. In the written statement filed by the legal representatives of the original defendant all averments made in the plaint were denied and the plaintiff was put to the strictest proof. However, at paragraph 9 of the said written statement, it was stated that the defendant Nos.1, 2 and 3 had jointly started a grocery shop at the corner place of the Khoirabari Mazikuchi-Mangaldai P.W.D Road and Mazikuchi to Borichowka Road constructing a permanent house with C.I sheet roof and wooden posts filling up the road side low land which was uncultivated and spending Rs.10,000/-. The house constructed was adjacent to both the roads and the land upon which the house was constructed was bounded by:

"North - Khairabari, Mazikuchi-Mangaldai P.W.D Road.

South - Plaintiff

East - Road side Sarkari land Page No.# 6/14

West - Mazikuchi - Borichowka PWD Road."

7. It was specifically mentioned that the alleged grocery shop belonging to the said defendants did not fall within the land of the plaintiff and the defendants had not occupied illegally the land belonging to the plaintiff which had been described in Schedule-2 to the plaintiff. It is seen that the learned Trial Court framed 7(seven) issues, of which, issue No.3 pertains to as to whether the defendant was possessing the suit land w.e.f. 08.05.2005 in pursuance to an Agreement dated 08.05.2005 for 3(three) years.

8. In addition to that, two additional issues were framed being Issue Nos. A and B. The additional Issue Nos. A and B being relevant are reproduced hereinunder:

"Additional Issues:

A. Whether the newly added defendants Ka, Kha and Ga, jointly started a grocery shop at the corner place of Khairabari-Mangaldai PWD Road by constructing a permanent house with CI sheet and wooden posts in an uncultivated area?

B. Whether the grocery shop belonging to the newly added defendants fall within the land of the plaintiff and whether they are liable to be ejected from Schedule-2 of the plaint?

9. The learned Trial Court vide the judgment and decree dated 29.08.2018 decreed the suit in favour of the plaintiff and thereby holding that the plaintiff has the right, title and interest with respect to the Schedule-I and Schedule-2 Page No.# 7/14

lands and is entitled to recover khas possession thereof and the defendants were directed to vacate the Schedule-2 land and handover possession thereof to the plaintiff. It is relevant to take note of the discussion of the learned Trial Court as regards Issue Nos. A and B. While deciding the said issues, the learned Trial Court held that the Issue No. A was decided in the affirmative in favour of the co-defendants and Issue No. B was decided in favour of the plaintiff. The resultant effect of the said decision in respect to the Issue Nos. A and B is that the learned Trial Court held that the newly added defendants Ka Kha and Ga jointly started a grocery shop at the corner place of the Khoirabari Mazikuchi- Mangaldai P.W.D Road and Mazikuchi to Borichowka Road constructing a permanent house with C.I Sheet roof and wooden posts in an uncultivated area and it was also decided that the grocery shop constructed by the newly added defendants fell within the land of the plaintiff and, as such, the said defendants were liable to be ejected from the Schedule-2 land.

10. Being aggrieved, an appeal was preferred by the respondents herein which was registered and numbered as Title Appeal No. 12/2018 and the Court of the learned Civil Judge, Darrang at Mangaldai, which was the learned First Appellate Court dismissed the said appeal by the judgment and decree dated 15.12.2020. It is also relevant to take note of the discussion of the learned First Appellate Court in respect to Issue Nos. A and B and confirmed that the construction of the grocery shop by the defendants Ka to Ga was in the land of the plaintiff.

11. Thereupon an execution proceedings was filed by the petitioner herein before the Court of the learned Munsiff No.1, Darrang, Mangaldai i.e. the learned Executing Court, which was registered and numbered as Title Execution Page No.# 8/14

Case No.1/2021.

12. The writ for delivery of possession was issued in respect to the Schedule-2 land. However at the time of execution, the Circle Officer Pathorighat Revenue Circle vide the Communication dated 29.06.2022 as well as the Lot Mandal concerned submitted a report that the boundaries so mentioned in Schedule-2 to the plaint, for which, there was a direction for a decree for execution there were certain differences.

13. It is under such circumstances, an application was filed under Section 151 read with Section 153 of the Code of Civil Procedure 1908 (for short, the Code) seeking amendment of the boundaries of the Schedule-2 land. The said application was duly objected to by filing the written objection by the respondents herein. The learned Executing Court vide the impugned order dated 12.01.2024 dismissed the execution proceedings and it is under such circumstances, the present proceedings has been initiated.

14. Mr. BK Bhagawati, the learned Counsel appearing on behalf of the petitioner submitted that the learned Executing Court in the impugned order appeared to be more concerned with the power under Section 151 and 153 of the Code, rather than taking into consideration that the learned Executing Court had the power under Section 47 of the Code to answer all questions in relation to execution, discharge or satisfaction of the decree. Referring to the judgment of the Supreme Court in the case of Pratibha Singh & Another Vs. Shanti Devi Prasad & Another reported in (2003) 2 SCC 330, the learned Page No.# 9/14

counsel appearing on behalf of the petitioner submitted that the learned Executing Court ought to have taken into consideration that the fruits of the decree could not have been denied on such technicality, inasmuch as, it was not only the duty of the plaintiff to properly mention the boundaries of the Schedule-2 land, but it was also incumbent upon the learned Trial Court in terms with Order VII, Rule 3 and Order XX Rule 6 to ascertain the exact boundary of the Schedule-2 land. He further submitted that this defect could have been cured in terms with Section 152 of the Code by the learned Executing Court as well as by exercising the powers under Section 47 as has been held by the Supreme Court.

15. The learned counsel further submitted that the decision in respect to Issue Nos. A and B have great relevance wherein the learned Trial Court as well as the learned First Appellate Court in spite of the boundary being duly mentioned in the written statement by the legal representatives of the original defendant had held that the said land fell within the Schedule-I land and, as such, it was the duty of the learned Executing Court to identify the exact area and thereupon execute the decree.

16. Mr. M Hoque, the learned counsel appearing on behalf of the respondents submitted that a perusal of the application filed under Section 151 and Section 153 does not mention anything as to what the learned counsel appearing on behalf of the petitioner has submitted today. It is totally a new case, which is being sought to be brought before this Court, that too, in exercise of power of supervisory jurisdiction of this Court. He, therefore, submitted that reasoning so assigned by the learned Trial Court in the impugned order dated 12.01.2024 for Page No.# 10/14

rejection of the application under Section 151 and Section 153 cannot be faulted with. He further submitted that as it is now an admitted fact that the decree for recovery of possession in respect to the Schedule-2 land cannot be identified, the learned Executing Court was justified in dismissing the execution proceedings.

17. The learned counsel appearing on behalf of the respondents further submitted that what the petitioners now seeks to execute is in respect to a different plot of land, which the petitioner could have very well taken appropriate steps at a time when a suit was pending or even when the appeal was pending. But no such steps was taken and, as such, the question of exercising the supervisory jurisdiction of this Court does not arise.

18. I have heard the learned counsels appearing on behalf of the parties and have given my anxious consideration.

19. From the judgment and decree so passed by the learned Trial Court which has been affirmed by the learned First Appellate Court, it appears that the learned Trial Court had declared the right, title, and interest in respect to Schedule-1 and Schedule-2 lands in favour of the plaintiff and further decreed that the plaintiff is entitled to recover Khas possession thereof. The defendants were further ordered to vacate the Scheduled-2 land and hand over the possession thereof to the plaintiff.

20. This Court further in the foregoing paragraphs of the instant judgment has Page No.# 11/14

also duly taken note of the discussion made by both the learned Trial court as well as the learned First Appellate Court in respect to the additional Issue Nos. A and B, wherein both the Courts have come to a concurrent finding of fact that the defendants/the respondents herein have started a grocery shop at the corner place of the Khoirabari Mazikuchi-Mangaldai P.W.D Road and Mazikuchi to Borichowka Road constructing a permanent house with C.I sheet roof and wooden posts in an uncultivated area and the grocery shop belonging to the newly added defendants fell within the land of the plaintiff.

21. It is further seen that during the course of execution of the decree, it came to light that the boundaries so mentioned in Schedule-2 do not match with the possession of the defendants/respondents herein and it is under such circumstances, the petitioners had filed the application under Section 151 and Section 153 of the Code seeking amendment to the boundaries of Schedule-2 so that the decree could be executed.

22. It is further relevant to take note of that Schedule-2 as per the plaintiff is a part of Schedule-1 land and the said application filed under Section 151 and Section 153 of the Code also states the same. What is sought to be corrected in the said application is the boundary inside the Schedule-I land, which has also been decreed in favour of the plaintiff. In this regard, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Pratibha Singh (supra) wherein the Supreme Court observed that it is not only the duty of the plaintiff, but it is also an obligation cast upon the learned Trial Court to ascertain the exact boundaries of the land in question, in terms with Order VII Rule 3 and Order XX Rule 6 of the Code. It is also mentioned in the said Page No.# 12/14

judgment that the Courts should ensure that a lawful decree which has been obtained by the party is not reduced to a paper decree. The learned Executing Court would have the powers under Section 152 or under Section 47 of the Code to pass appropriate orders thereby correcting the boundaries. Paragraph 17 of the said judgment being relevant is reproduced hereinunder:

"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 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 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, it may be corrected under Section 152 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 CPC."

23. However, it is seen that the learned Executing Court instead of taking appropriate steps in terms with Section 47 of the Code dismissed the entire execution proceedings on the ground that the decree cannot be executed that too, without considering that in respect to the Schedule-I land, there was a decree for right, title and interest and for recovery of possession and Schedule-2 land was a part thereof. It is also seen that the learned Executing Court in the impugned order had observed that any correction in the boundaries of the Schedule-2 land would amount to going behind the decree, which in the opinion of this Court would not be so taking into account the judgment and order so passed by both the learned Trial Court as well as the learned First Appellate Court in respect to the additional Issue Nos. A and B, more so, when it is a settled principle of law that the decree is the fallout of the reasons so assigned Page No.# 13/14

in the judgment.

24. Taking into account the above, this Court, therefore, interferes with the order dated 12.01.2024, by which, the Title Execution Case No.1/2021 was dismissed. Accordingly, the instant proceedings, therefore, stands disposed of with the following observation(s) and direction(s):

(i). The dismissal of the Title Execution Case No.1/2021 vide the impugned order dated 12.01.2024 is interfered with.

(ii). The Title Execution Case No.1/2021 is restored to the file of the Court of the learned Civil Judge (Junior Division) No.1, Darrang at Mangaldoi

(iii). The learned Executing Court, shall exercise the powers under Section 47 to identify as to whether the Schedule-2 land falls within the ambit of Schedule-I land and upon identification thereof, if it is found that the Schedule-2 land falls within the ambit of Schedule-1 land to proceed with the execution of the decree as per the mandate of law.

(iv). Taking into account that it is also the duty cast upon under Section 47 to the learned Executing Court, the learned Executing Court shall take appropriate steps for the purpose of execution, discharge or satisfaction of the decree.

(v). This Court further taking into account that both the parties are duly represented before this Court directs both the parties to appear before the Court of the learned Civil Judge (Junior Division) No.1, Darrang Mangaldoi on 10.06.2025 for further proceedings with the execution proceedings.

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25. With the above, the instant petition stands disposed of.

JUDGE Comparing Assistant