Somnath Lohar @ Lohra & Others vs Nageshwar Singh & Others
2022 Latest Caselaw 3183 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Civil Writ Jurisdiction)
              W.P. (C) No. 5382 of 2019
                       ........

Somnath Lohar @ Lohra & Others .... ..... Petitioners Versus Nageshwar Singh & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Petitioners : Mr. Sambit Nayak, Advocate.

For the Respondents            :
                            ........
07/16.08.2022.

Heard, learned counsel for the petitioners, Mr. Sambit Nayak. Learned counsel for the petitioners has submitted, that under the Chotanagpur Tenancy Act, Appendix-IX, the Bihar Scheduled Areas Regulation, 1969 has been amended in the manner and to the extent mentioned therein in their application to the Scheduled Areas of the State of Bihar, whereby Order I Rule 3 of the C.P.C. has been amended by Central Act, incorporating the followings:-

Provided that in suits for declaration of title or for possession relating to immovable properties, of member of the scheduled Tribes as specified in Part-III to the Schedule to the Constitution (Schedule Tribe) Order, 1950", the Deputy Commissioner concerned shall also be joined as defendant.

Learned counsel for the petitioners has further submitted, that he has not appended the plaint nor the judgment passed by the learned trial court and the order passed in its appeal up to the Judicial Commissioner. Thereafter no second appeal / revision has been preferred, though this point has been raised before the executing court in Misc. Civil Application No. 489/2019, whereby this issue has been taken note of by the learned court below and rejected the same on the ground that in the present case, land is not found to be of member of Scheduled Tribe. It is held to be of non- Scheduled Tribe land. The objection regarding non-maintainability of suit has been raised for the first time before the executing court and thus, the court has opined that the decision cited by the Objector is not applicable to the fact of the present case, rather the decision

relied by both the sides, relating to the power and jurisdiction of the executing court and scope of interference under Section 47 of the C.P.C. is relevant and thus, the learned trial court has wrongly rejected the issue raised by the petitioners.

It appears that no judgment has been relied upon by the learned counsel for the petitioners, Mr. Sambit Nayak.

Considering the submissions made on behalf of the petitioners and after going through the provisions cited by the petitioners, this Court is of the opinion that there is no illegality and irregularity in the impugned order passed by the Executing Court. As such, under Article 227 of the Constitution of India, writ cannot be issued in favour of the petitioners.

Accordingly, the writ petition is hereby dismissed. Pending I.As. stand closed.

However, learned trial court is directed to proceed in execution case without any unnecessary delay.

Let a copy of order be communicated to the learned trial court.

(Kailash Prasad Deo, J.) Sunil/-