Jharkhand High Court
Narendra Kumar Pandey vs The State Of Jharkhand Through Its Home ... on 5 September, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P. (Cr.) No. 209 of 2023
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1. Narendra Kumar Pandey, aged about 59 years
2. Satyendra Narayan Pandey, aged about 53 years
3. Jitendra Kumar Pandey, aged about 49 years
All sons of Shri Sidhi Nath Pandey
4. Anand Kumar Pandey, aged about 50 years son of Dharm
Dev Pandey
All residents of Village Pandu, P.0. & P.S. Pandu, District-
Palamau at Medni Nagar .....Petitioners
-- Versus --
1. The State of Jharkhand through its Home Secretary,
Government of Jharkhand, Project Bhawan, P.O. - Dhurwa, P.S.
- Jagarnathpur, District - Ranchi
2. Director General of Police-cum-Inspector General of Police,
Government of Jharkhand, Project Bhawan, P.O.-Dhurwa, P.S.
Jagarnathpur, District-Ranchi
3. Deputy Commissioner, Palamau at Medni Nagar, P.O. & P.S.
Medni Nagar, District- Palamau
4. Dy. Inspector General of Police, Palamau Division, at Medni
Nagar, P.O. & P.S.- Medni Nagar, District- Palamau;
5. Sub Divisional Officer, Sadar, Medni Nagar, Palamau at Medni
Nagar, P.O. & P.S. Medni Nagar, District- Palamau;
6. Superintendent of Police, Palamau at Medni Nagar, P.O. &
P.S. Medni Nagar, District- Palamau;
7. Circle Officer, Pandu, P.O. & PS-Pandu, District- Palamau
8. Officer in Charge, Pandu Police Station, Pandu P.O. and P.S. -
Pandu, District Palamau
9. Prem Ram
10. Ramjee Ram
11. Laljee Ram
--1-- W.P. (Cr.) No. 209 of 2023
Respondent Nos. 9 to 11, all sons of Late Mahangu Ram
12. Most. Jhubhi Kuer, wife of Late Mahanga Ram
13. Shri Anil Kumar Ram
14. Bishu Ram
Both sons of Prem Ram
15. Shri Lalan Ram
16. Vijay Ram
17. Bindu Ram;
Respondent Nos. 15 to 17, sons of Late Kalpu Ram;
18. Sukhadi Ram
19. Gama Ram
20. Lakshmi Ram
All sons of Late Chutur Ram
All respondent Nos.9 to 20, residents of Village- Kajaru Kallan,
P.O.-Karju kurd, New Kajaru Kalan, P.S. Pandu, District-
Palamau ..... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Mahesh Tewari, Advocate
:- Mr. Sanjay Kumar Pandey
For the State :- Mr. P.C. Sinha, AC to GA III
For Private respondents :- Mr. S.K. Sharma, Advocate
:- Ms. Anushka Jha, Advocate
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09/05.09.2024 Heard learned counsel appearing for the petitioners,
learned counsel appearing for the respondent State and learned
counsel appearing for the Respondent Nos.9 to 20.
2. The prayer in the writ petition is made for direction upon
the respondent Nos. 2 to 8 to take appropriate steps against the
respondent Nos.9 to 20 restraining them from interfering with the
lands appertaining to Plot No. 754A having an area of 0.08 Acres
--2-- W.P. (Cr.) No. 209 of 2023
and Plot No.756 having an area of 0.42 acres under Khata No.1 and
Plot No.865/1367 having an area of 1.92 decimals under Khata
No.184, Mouza - Kajaru Kalan within Pandu Police Station
measuring total area of 2.42 acres, the land in question and to
ensure safe enjoyment of the right of the petitioners as declared by
competent court of law and to provide police protection to the
petitioners for unfettered enjoyment over the said property in any
manner and within a specified period. Further prayer is made for
direction upon the respondents to demolish part of the illegal
construction raised on a portion of the lands in question by the
private respondents in violation of the decree of permanent
injunction against the private respondents or their ancestors by the
competent court of law.
3. Mr. Mahesh Tewari, learned counsel appearing for the
petitioners submits that Binod Kumar Pandey and Anil Kumar
Pandey both son of late Radhikesh Pandey, were in possession of
the lands in question on the basis of inheritance from their
ancestors who got the same in Partition Suit No.8 of 1928. After
vesting of Jamindari Interest, they got rent assessed for the said
land on the basis of their peaceful possession and return in 'K-Form'
was submitted. The ancestors of Binod Kumar Pandey and Anil
Kumar Pandey had already settled in village - Churmari in the
district of Satna in the State of Madhya Pradesh. He further submits
that Binod Kumar Pandey and Anil Kumar Pandey executed a
--3-- W.P. (Cr.) No. 209 of 2023
registered Deed of Gift dated 03.01.1994 in favour of Narendra
Kumar Pandey, Satyendra Narayan Pandey, Jitendra Kumar Pandey
all sons of Sidhi Nath Pandey and Anand Kumar Pandey, son of
Dharm Dev Pandey and they are in possession of 2.42 acres of land
appertaining of plots as disclosed in the prayer portion of the writ
petition. He then submits that the name of the above donees were
mutated by an order dated 02.06.1994 passed by the Circle Officer,
Bishrampur in Mutation Case No.78 of 1994-95 and they were
paying the rent to the State of Bihar and now to the State of
Jharkhand. He submits that in recent survey records of right has
been prepared in the name of the petitioners. According to him, the
Civil Suit for declaring their indefeasible right and title over the said
lands acquired by them on the basis of a registered deed of gift
against Manangu Ram and Others which was registered as Title Suit
No.122 of 1996 and by judgment dated 31.05.1997, the Munsif,
Palamau at Medni Nagar, decreed the aforesaid Title Suit No.122 of
1996 declaring the right, title and interest of the petitioners over the
said land and also confirmed possession of the petitioners. He
submits that in the said suit, the permanent injunction was passed
against the private respondents. He submits a decree was sealed
and signed on 07.06.1997. He submits against the said judgment,
the respondents have preferred Original Misc. Case No.15 of 1997
invoking provisions of order-IX Rule 13 of the Code of Civil
Procedure which was dismissed on 21.02.1998. He further submits
--4-- W.P. (Cr.) No. 209 of 2023
that again a Misc. Petition under order-IX Rule 13 of the Code of
Civil Procedure was filed on 20.12.2001 by the original defendant
vide Misc. Case No.12 of 2001 which was also dismissed on
22.03.2003. In this background, he submits the dismissal of two
petitions clearly suggests that permanent injunction has attained
finality and in spite of that the private respondents are interfering
with the right, title interest of the petitioners and for that the
petitioners have already moved before the competent authority of
the district in spite of that no action has been taken by way of
Annexure-10, 11 and 12. He further draws the attention of the
Court to paragraph No.2 of the judgment passed by this Court in
Cr.M.P. No.221 of 2004 and Cr.M.P. No.2168 of 2021 and submits
that in false allegation, the criminal cases are being instituted
against the petitioners and out of them two of the criminal
proceedings have been quashed by this Court. He submits that
maliciously the private respondents are harassing the petitioners
and in spite of the decree passed by the competent court, the
district administration is not helping the petitioners, as such the
proper direction may kindly be issued. To buttress this argument,
learned counsel appearing for the petitioners relied in the judgment
of Hon'ble Supreme Court in the case of P.R. Murlidharan and
Others versus Swami Dharmananda Theertha Padar and
Others reported in (2006) 4 SCC 501 and he refers to
paragraph No.17 of the said judgment which stipulates as under:
--5-- W.P. (Cr.) No. 209 of 2023
17. A writ petition under the guise of seeking
a writ of mandamus directing the police authorities
to give protection to a writ petitioner, cannot be
made a forum for adjudicating on civil rights. It is
one thing to approach the High Court, for issuance
of such a writ on a plea that a particular party has
not obeyed a decree or an order of injunction
passed in favour of the writ petitioner, was
deliberately flouting that decree or order and in
spite of the petitioner applying for it, or that the
police authorities are not giving him the needed
protection in terms of the decree or order passed by
a court with jurisdiction. But, it is quite another
thing to seek a writ of mandamus directing
protection in respect of property, status or right
which remains to be adjudicated upon and when
such an adjudication can only be got done in a
properly instituted civil suit. It would be an abuse of
process for a writ petitioner to approach the High
Court under Article 226 of the Constitution seeking a
writ of mandamus directing the police authorities to
protect his claimed possession of a property without
first establishing his possession in an appropriate
civil court. The temptation to grant relief in cases of
this nature should be resisted by the High Court.
The wide jurisdiction under Article 226 of the
Constitution would remain effective and meaningful
only when it is exercised prudently and in
appropriate situations.
4. Relying on the above judgment, Mr. Tewari, learned counsel
appearing for the petitioners submits that once a decree is there
--6-- W.P. (Cr.) No. 209 of 2023
and it is not being executed, the High Court can pass appropriate
order under writ jurisdiction under Article 226 of the Constitution of
India and in view of that appropriate order may kindly be passed.
5. On the same line, Mr. Tewari further relied in the case of
Uma Devi versus State of Bihar and Others reported in 2007
(3) East Cr C 18 (Pat) : 2007 (2) PLJR 475.
6. Relying on the above judgment, he submits that the High
Court has issued the direction to execute the deed. He further relied
in the case of Prithwi Chand Gupta versus State of Bihar and
Ors. reported in 2008 (3) East Cr C 10 (Pat).
7. Relying on the above judgment, he submits that a person
whose right to property has finally been decided by a Court of law is
entitled to its unfettered enjoyment and the District Administration
is obliged to ensure it's enjoyment and in view of that he submits
that this Court is competent to pass appropriate order in view of the
dispute in question and the District Administration of Palamau may
kindly be directed to provide police protection.
8. Per contra, Mr. Sharma, learned counsel appearing for the
respondent Nos.9 to 20 oppose the prayer on the ground that the
decree is already there in favour of the petitioners and if it is not
being implemented, the petitioners are required to move before that
Court for execution. He draws the attention of the Court to Article
136 of the Limitation Act and submits that so far the permanent
injunction is concerned, there is no limitation of execution and for
--7-- W.P. (Cr.) No. 209 of 2023
other decree, there is limitation of 12 years of execution and in view
of that the petitioners are required to move before that Court. He
further submits that the private respondents are in possession and
that specific statement is made in paragraph No.13 of counter
affidavit. He further draws the attention of the Court that the land in
question is in possession of the petitioners in view of the registered
sale deed Nos.751, 752, 753 and 754 registered on 16th February,
1995 respectively and he submits that the rent receipt is also issued
in favour of the private respondents with regard to the land in
question and the Register-II in the name of the private respondents
is also brought in the counter affidavit. He submits that if such a
fact is there, the High Court may not exercise his power under
Article 226 of the Constitution of India. He further submits that the
suit was defective and in the suit the prayer was not made of
handing over the possession in favour of the petitioners and the
decree is only passed of permanent injunction wherein the private
respondents are in possession. He further submits that the said
permanent decree was ex-parte. He relied in the case of
Prabhakara Adiga versus Gowri and Others reported in
(2017) 4 SCC 97 and he refers to paragraph No.25 of the said
judgment which has been held as under:-
25. In our considered opinion the right which
had been adjudicated in the suit in the present
matter and the findings which have been recorded
as basis for grant of injunction as to the disputed
--8-- W.P. (Cr.) No. 209 of 2023
property which is heritable and partible would enure
not only to the benefit of the legal heir of decree-
holders but also would bind the legal
representatives of the judgment-debtor. It is
apparent from section 50 CPC that when a
judgment- debtor dies before the decree has been
satisfied, it can be executed against legal
representatives. Section 50 is not confined to a
particular kind of decree. Decree for injunction can
also be executed against legal representatives of the
deceased judgment-debtor. The maxim "actio
personalis moritur cum persona" is limited to certain
class of cases as indicated by this Court in
Girijanandini Devi v. Bijendra Narain Choudhary
(supra) and when the right litigated upon is
heritable, the decree would not normally abate and
can be enforced by LRs. of decree-holder and
against the judgment-debtor or his legal
representatives. It would be against the public
policy to ask the decree-holder to litigate once over
again against the legal representatives of the
judgment-debtor when the cause and injunction
survives. No doubt, it is true that a decree for
injunction normally does not run with the land. In
the absence of statutory provisions, it cannot be
enforced. However, in view of the specific provisions
contained in section 50 CPC, such a decree can be
executed against legal representatives.
9. Relying on the above judgment, he submits that even if the
permanent injunction and decree is there that can be executed
through the Court which has passed the said decree by way of
--9-- W.P. (Cr.) No. 209 of 2023
execution case. He submits in view of that the said petition is fit to
be dismissed. He further submits that so far judgment relied by the
learned counsel appearing for the petitioners in the case of P.R.
Murlidharan and Others (supra) is concerned that is
distinguishable in the light of observation made in paragraph No.12,
13 and 17. He submits that the facts of the present case are
disputed one and in view of that this Court may not exercise the
power under Article 226 of the Constitution of India.
10. Mr. Tewari in reply of Mr. Sharma submits that the fact is not
correct, petitioners are in possession and the mutation in favour of
the respondents has already been turned down by Annexure-17 and
17/1.
11. In view of the above, learned counsel appearing for the
State submits that a counter affidavit has been filed wherein
paragraph No.4 and 12 it is disclosed that the dispute in question is
civil in nature and for that the petitioner is having the alternative
remedy. He submits in view of that the District Administration is not
able to execute the said decree in absence of any order of a
competent court who has passed the judgment or decree.
12. In view of the above submission of learned counsel
appearing for the parties, the Court has gone through the materials
on record and finds that admittedly there are dispute between the
petitioners and respondent Nos.9 to 20. A title suit being Original
Title Suit No.122 of 1996 was instituted by the petitioners and in
--10-- W.P. (Cr.) No. 209 of 2023
the judgment/decree was passed ex-parte against the private
respondents of permanent injunction and the private respondents
were restrained to go in the land in question. Two miscellaneous
cases have been filed by the private respondents have been
rejected by order dated 21.02.1998 and 22.03.2003. It is further
admitted position that in two Cr.M.Ps. the criminal cases instituted
against the petitioners have been quashed by this Court by
judgment dated 10.01.2006 and 27.06.2022 respectively. Thus, it is
crystal clear that there is dispute between both the sides with
regard to the property and for that the case and counter case are
going on. It is admitted position that the decree of permanent
injunction is there in favour of the petitioners in light of the
judgment dated 31.05.1997. Article 136 of the Limitation Act
provides limitation with regard to the decree of other nature for the
period of 12 years, however, for permanent injunction there is no
limitation of execution of the said decree.
13. Heavy reliance was placed by the learned counsel appearing
for the petitioners in the case of P.R. Murlidharan and Others
(supra) and in the same judgment in paragraph No.11, it was
observed as under:-
The question is a contentious one.
Construction of the said trust and the rights and
obligations thereunder were in question. The first
respondent filed a suit in that behalf. The said suit
was dismissed. In terms of Order 9 Rule 9 of the
Code of Civil Procedure another suit would not be
--11-- W.P. (Cr.) No. 209 of 2023
maintainable at his instance. We have noticed
herein before that another suit being O.S. No. 30
of 2002 is pending in the court of the Munsif. The
High Court, despite noticing the said fact, sought
to usurp the jurisdiction of the civil court. It, as
noticed hereinbefore, determined the contentious
issues which were required to be proved in terms
of the provisions of the Indian Evidence Act.
14. Further coming to the facts of the present case what has
been discussed here-in-above, it is crystal clear that there is serious
dispute between the parties, there is no judgment with regard to
handing over the physical possession of either of the parties and
only decree is there of permanent injunction against the private
respondents and the question remains that when such a disputed
fact is there whether the High Court can pass the order relying on
the judgment of Hon'ble Supreme Court in the case of P.R.
Murlidharan and Others (supra), the answer is simply no in
view of the fact that can be decided by the executing court as the
decree of permanent injunction is already there in favour of the
petitioners. The reference may be made to the case of Moran M.
Baselios Marthoma Mathews II and Others versus State of
Kerala and Others reported in (2007) 6 SCC 517 wherein
paragraph No.12, 13 and 15 which has been observed as under:-
12. Such might have been the contentions of
the appellants before the High Court or before us in
the special leave petitions, but we have no doubt in
our mind that such disputed questions in regard to
--12-- W.P. (Cr.) No. 209 of 2023
title of the properties or the right of one group
against the other in respect of the management of
such a large number of Churches could not have
been the subject matter for determination by a Writ
Court under Article 226 of the Constitution of India
in the garb of grant of police protection to one or
the other appellants.
13. We, therefore, are of the opinion that despite
the fact that the appellants had insisted upon before
the High Court for issuance of a writ or in the nature
of mandamus upon the State or its officers for the
purpose of grant of police protection as this Court
has exercised its appellate jurisdiction under Article
136 of the Constitution of India, it can and should
go into that question as well, viz. as to whether the
writ petitioner itself could have been entertained or
not, particularly, when the appeal is a continuation
of the original proceedings.
15. For the reasons stated hereinbefore, we are of
the opinion that the High Court committed a
manifest error in going into the disputed questions
of title as also the disputed questions in regard to
the rights of a particular group to manage the
Churches, in exercise of its writ jurisdiction,
particularly, when such questions are pending
consideration before competent Civil Courts. We,
therefore, are of the opinion that any observation
made by the High Court should not influence the
Courts concerned in arriving at their independent
decisions and in respect thereof, all contentions of
the parties shall remain open.
--13-- W.P. (Cr.) No. 209 of 2023
15. In view of the above factual matrix and legal precedents,
the relief sought by the petitioners even assuming that there was a
decree of a Civil Court as laid down in the case of P.R.
Murlidharan and Others (supra), it is for the parties to execute
such a decree in the manner known to law. The argument of
learned counsel appearing for the petitioners of passing appropriate
order under Article 226 of the Constitution of India to the effect that
only this Court can direct the District Administration for police
protection sound attractive but this Court is not inclined to accept
the same and this Court is unable to see of the matter, it is for the
parties to approach the Civil Court including the execution of its
order.
16. In view of the above, the judgment relied by the learned
counsel appearing for the petitioners in the case of P.R.
Murlidharan's case (cited supra) is distinguishable.
17. In the case of Prithwi Chand Gupta (supra) relied by Mr.
Tewari, the High Court interfered as there was already execution
decree in favour of the petitioners in the case in hand, the
execution decree is still not there and the petitioner is required to
move for execution of the sale decree before the competent court.
18. In the case of Uma Devi versus the State of Bihar and
Ors. (supra) relied by Mr. Tewari, the District Administration has
conceded that they will take steps for execution of the decree and
in that background that order has been passed.
--14-- W.P. (Cr.) No. 209 of 2023
19. In the case of Prabhakar Adiga (supra) relied by learned
counsel appearing for the private respondents, Hon'ble the Supreme
Court has clearly held that applying the principle of maxim 'actio
personalis moritur cum persona' that is required to be executed
through the execution case that case is helping the private
respondents.
20. If the person against whom such a decree is passed causes
further obstructions that can be brought to the notice of the Civil
Court and the Civil Court has got every power to issue direction to
the police to afford protection in executing the decree. There may
be cases in which a person obtains a decree for declaration and
injunction. In such cases, the petitioners cannot be allowed to
contain that the petitioner not in a possession of the property but
where exactly the dividing line of property from the neighbouring
property is an issue which can be decided only by a competent
court, so even if a person obtains decree declaring his title and
possession no police protection can be a granted to him to put up
the boundary of that decree civil property without the dividing line
fixed by the competent court first even if there is an order of
injunction restraining a party from entering into the property, this
Court shall not invoke the power under Article 226 of the
Constitution of India of the police protection, the party obtains such
decree can approach the civil court for enforcement of that decree.
The statutory power given to the Court is required to be followed.
--15-- W.P. (Cr.) No. 209 of 2023
21. The High Court is not an executing Court, there is no hard
and fast rule that once a writ petition is entertained, counter
affidavit has been called upon thereafter it cannot be dismissed on
the ground of alternative remedy, it all depends on the facts of each
case. The High Court cannot encourage this kind of practice of filing
writ petition, when equally alternative remedy is available under the
provisions of the CPC.
22. In view of the above facts, reasons and analysis, no case of
interference is made out, as such this writ petition is dismissed with
liberty to the petitioners to move before the competent court who
had passed the decree of permanent injunction and for execution of
the said decree.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
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