Jharkhand High Court
Asha Devi vs Gautam Kumari Gorai on 15 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.322 of 2022
With
I.A. No.5697 of 2022
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1. Asha Devi
2. Amit Kumar Burman
3. Sumit Kumar Burman
4. Simpi Kumari @ Shimpi Kumari .......... Petitioners.
-Versus-
1. Gautam Kumari Gorai
2. Rajiv Ranjan Gorai
3. Sanjiv Kumar Gorai
4. Usha Rani Gorai .......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. J. K. Pasari, Advocate
For the Respondents:
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Order No.03 Date: 15.07.2022
1. The present civil miscellaneous petition has been filed for quashing the
order dated 10th June, 2022 passed by the learned Civil Judge (Sr.
Division)-III, Dhanbad in Execution Case no.02 of 2005, whereby the
objection filed by the judgment debtors/petitioners against the report
of the Survey Knowing Pleader Commissioner dated 29th April, 2019
has been rejected.
2. Mr. J. K. Pasari, learned counsel for the petitioners, submits that a
Bench of this Court vide order dated 25th January, 2017 passed in the
second appeal being S.A. No.530 of 2015, while dismissing the same,
had given liberty to the petitioners (appellants of the second appeal)
to file an application before the Executing Court for proper
identification and demarcation of the suit property, on which the
Executing Court was directed to exercise its discretion and pass
necessary order after providing proper opportunity of hearing to the
parties. Pursuant to the said liberty given to the petitioners, an
application was filed before the said Court for appointment of Survey
Knowing Pleader Commissioner for which the consent of decree
holders was also there so as to carve out the suit property, however,
the Pleader Commissioner without properly carving out the same has
submitted erroneous report before the Executing Court, as a result of
which the suit property cannot be properly separated from the
property owned by the petitioners.
3. It is further submitted that the report of the Survey Knowing Pleader
Commissioner dated 29th April, 2019 submitted before the Executing
Court is not correct and the same contains various mistakes with
regard to location of the suit property. There is no "Gali" towards
northern side of the suit property as has been mentioned in the report.
In fact, on the northern side of the suit property there is a shop, which
is in occupation of the judgment debtors along with other shop
premises in the southern side. The alleged "Gali" which has been
mentioned in the report of the Pleader Commissioner as also shown in
the map drawn by him, there is a shop in eastern side, facing G.T.
Road and the same is in occupation of one Raju Sao, whereas in
western side there is a shop of judgment debtors, adjacent to the
boundary of which (towards west) there situates Baliapur Road. There
cannot be any dispute that there is no Gali towards northern side of
the suit property and the said finding given in the report of the Pleader
Commissioner is influenced by the decree holders. It is further
submitted that Schedule-A property is not situated over plot nos.1959
and 1960, rather the same is situated over C.S. plot nos.1956 and
1957, which is the property of the judgment debtors/petitioners.
4. In support of the said submission, learned counsel for the petitioners
puts reliance on the judgment of the Hon'ble Supreme Court rendered
in the case of M.P. Rajya Tilhan Utpadak Sahakari Sangh
Maryadit, Pachama, District Sehore & Ors. Vs. M/s. Modi
Transport Service, reported in 2022 LiveLaw (SC)471, wherein
in paragraph no.32 it has been held as under:-
"32. There is also a distinction between the scope and functions of an arbitral tribunal and
a commissioner appointed under Order XXVI Rules 9 and 11 26 of the Code. For submission
to arbitration, there must be an arbitration agreement or an agreement in terms of Section
21 of the Act that the difference or dispute between the parties for which they intend to be
determined in a quasi-judicial manner. Commissioners are appointed by the court.
Appointment may be with consent of the parties, or even when there is objection to the
appointment. Preexisting agreement or the requirement that the parties agree before the
court, as is mandatory in case of arbitration, is not necessary when a court directs
appointment of a commissioner. In the case of a reference to a commissioner, all that the
parties expect from the commissioner is a valuation/examination of the subject matter
referred, which he would do according to his skill, knowledge and experience, which may
be without taking any evidence or hearing argument. 27 In light of the aforesaid decisions,
we would like to introduce the principle of a 'facilitator' which a court may appoint, be it a
commissioner or an expert, for a specific purpose and cause for ascertainment of a fact
which may be even disputed. In some cases, the commissioner may even hear the parties
and give his expert opinion based on the material or evidence produced by the parties
before the commissioner, as in this case when the court appointed a Chartered Account
who as an expert was required to give his opinion on the statement on accounts to facilitate
and help the court arrive at a fair and just decision. It was to save the court's time and cut
delay in the decision by the court."
5. Heard learned counsel for the petitioners and perused the contents of
the present CMP including the impugned order dated 10th June, 2022.
6. On perusal of the copy of the plaint annexed with the present CMP it
appears that the shop premises consisting of two rooms with asbestos
sheet roof and a veranda with Khaparposh roof situated over about
one decimal of land, being portion of plot nos.1959 and 1960 under
Khata no.245 as well as the boundary of the suit/shop premises have
clearly been mentioned in the Schedule-A to the plaint. Title (Eviction)
Suit no.2 of 1995 was decreed against the petitioners. Thereafter, they
filed first appeal and the same was dismissed. Subsequent thereto,
they also preferred second appeal, being S.A. No.530 of 2015, as
mentioned herein above, which was also dismissed by a Bench of this
Court vide order dated 25th January, 2017. Paragraph no.10 of the said
order passed in the second appeal contains the petitioners' argument
that the suit property detailed in Schedule-A is not situated over plot
nos.1959 and 1960, rather the same is situated over plot nos.1956 and
1957, which belong to the petitioners and, therefore, the Executing
Court should be directed to demarcate and identify the suit property
for proper execution of the decree. However, on the said submission,
it was observed in the said order that when the decree is put into
execution, it is to be executed with respect to the premises as detailed
in the schedule of the plaint and incorporated in the decree.
7. As has been mentioned herein above, there is no confusion in the
description of the suit property mentioned in Schedule-A of the plaint,
which is part of the decree and hence I do not find any substance in
the submission of learned counsel for the petitioners that there is a
difficulty in properly demarcating the suit property. Under the said
situation, the judgment rendered in the case of M.P. Rajya Tilhan
Utpadak Sahakari Sangh Maryadit, Pachama (Supra.) cannot
be applied in the facts of the present case.
8. So far as the contention of the learned counsel for the petitioners that
Schedule-A property is not situated over plot nos.1959 and 1960 rather
the same is situated over plot nos.1956 and 1957 is also not worth
consideration at this stage, particularly when Schedule-A of the plaint
clearly mentions that it is situated over plot nos.1959 and 1960 under
Khata no.245.
9. Hence, I see no reason to interfere with the impugned order dated 10th
June, 2022 passed by the learned Civil Judge (Sr. Division)-III,
Dhanbad.
10. This CMP being devoid of merit is, accordingly, dismissed.
11. I.A. No.5697 of 2022 is also dismissed.
(Rajesh Shankar, J.)
Sanjay/
