Madhya Pradesh High Court
Abdul Bashir (Deceased) Through Lrs ... vs Sohan Lal Bammi (Dead) Through Lrs Smt. ... on 5 May, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 5 th OF MAY, 2025
WRIT PETITION No. 17194 of 2015
ABDUL BASHIR (DECEASED) THROUGH LRS SMT. KANEEJA
BANO AND OTHERS
Versus
SOHAN LAL BAMMI (DEAD) THROUGH LRS SMT. SUSHILA
BAMMI AND OTHERS
Appearance:
Ms. Sanjana Sahni - Advocate for the petitioners.
Shri Divesh Jain - Advocate for respondent No.3.
ORDER
This petition under Article 227 of the Constitution of India has been
filed by the original petitioner/defendant No.1/judgment debtor namely
Abdul Bashir (since deceased) being aggrieved by order dated 16.6.2015
(Annexure P-13) passed by Twelfth Additional District Judge, District
Jabalpur in Execution Case No. 111-A/2002 by which the Executing Court
has rejected the objection preferred by the petitioners/judgment debtors
against the report submitted by the Commissioner appointed by the Court
and has directed delivery of possession of a part of the suit house to the
decree holder as recommended by the Commissioner.
2 . The original petitioner also challenged the order dated 4.9.2015
(Annexure P-15) passed by Twelfth Additional District Judge, District
Jabalpur in Execution Case No. 111-A/2002 by which the application filed
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by the original petitioner under Order 47 Rule 1 of the Code of Civil
Procedure, 1908 seeking review of the order dated 16.6.2015 has been
dismissed.
3 . The facts of the case, as detailed in the petition, are that original
plaintiff/decree holder namely Sohan Lal (since deceased) had filed a civil
suit seeking partition and possession of his 1/5th share in the suit house
bearing Nos. 285, 286 and 286A situated at Sadar Bazar, Jabalpur
(hereinafter referred to as the suit property). It was pleaded in the suit that
one Sardar Bhagat Singh had purchased the suit property from Gurudwara
Guru Singh Sabha vide registered sale-deed dated 17.9.1957 (Annexure P-2)
and had become the absolute owner of the said property till his death in the
year 1973. He died intestate. Original defendant no. 2 namely Smt. Hukum
Kaur was his widow and defendant Nos. 2 and 6 were his daughters.
Defendant No. 2 sold the suit property in favour of defendant No. 1 (the
original petitioner) vide registered sale deed dated 17.4.1984 (Annexure P-
3). Original plaintiff Sohan Lal purchased 1/5th share of defendant No. 3 in
the suit house. He filed the aforesaid suit claiming partition of his 1/5th share
in the suit house and also separate possession. The legal heirs of defendant
No. 1 filed written statement inter alia stating that defendant Nos. 3 to 6 had
admitted that they did not have any share in the suit house and defendant
No. 2 was the sole owner thereof and the sale deed dated 17.4.1984 executed
by defendant No.2 in favour of original defendant No. 1 was totally forged
and fabricated and did not confer any title upon him.
4 . The trial Court vide judgment and decree dated 1.11.2002
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(Annexure P-6) decreed the suit and held the plaintiff entitled for partition
and delivery of separate possession of 1/5th share in the suit property. It was
held by the trial Court that defendant Nos. 2 to 6 have 1/5th share each in the
suit property and plaintiff had purchased 1/5th share of defendant No. 3 vide
registered sale deed dated 15.2.1993 and defendant Nos. 3 to 6 had not
relinquished their share in the suit house in favour of defendant No. 2 hence
sale deed executed by her in favour of defendant No. 1 is illegal to that
extent.
5 . Being aggrieved by the judgment and decree dated 1.11.2002
(Annexure P-6), the legal representatives of defendant No.1/petitioners have
preferred First Appeal No. 507 of 2002 before this Court.
6 . During pendency of the aforesaid First Appeal, the sold plaintiff
died on 19.11.2006. The appeal has been dismissed as abated. The
petitioners, who are the legal heirs of the plaintiff, filed an application under
Order 22 Rule 4 of the Code of Civil Procedure for bringing his legal heirs
on record along with an application under Order 22 Rule 9 of the Code of
Civil Procedure for setting aside the abatement and an application under
Section 5 of the Limitation Act for condonation of delay. The said
application has been dismissed by this Court and the appeal was declared
having been abated. The said order has also been affirmed by the Supreme
Court vide order dated 13.9.2013 in SLP (Civil No. 5796 of 2011).
Thereafter the decree holder filed an application under Order 20 Rule 18(2)
of the CPC before the Executing Court for passing final decree. The
Executing Court appointed a Commissioner for effecting partition of the suit
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house. The Commission carried out the proceedings for partition of the suit
house and submitted his report dated 19.11.2014 (Annexure P-10) before the
Executing Court. Being unsatisfied with the Commissioner's report, the
petitioners' filed an objection (Annexure P-11) stating that the Commissioner
had not carried out the partition proceedings as directed and had only stated
regarding possession of the parties over the suit house and has recommended
action on that basis. It was also stated in the objection that the Commissioner
carried out measurement of adjoining property making the total measurement
as 906.40 sq. ft. which was in excess of the measurement of the suit house
and beyond the decree.
7. The Executing Court rejected the objection filed by the petitioners
vide order dated 16.6.2015 (Annexure P-13). Being aggrieved thereby the
petitioners filed an application under Order 47 Rule 1 of the CPC, which has
also been rejected vide order dated 4.9.2015 (Annexure P-15). Hence, this
petition has been filed by the petitioners challenging the orders Annexure P-
13 and Annexure P-15.
8. It is contended by the counsel for the petitioners that the Executing
Court has illegally and arbitrarily rejected the petitioners' objection. The
Executing Court fell in error while accepting the report of the Commissioner
and directing for delivery of possession of 180 sq. ft. on the first floor. It is
contended that the Executing Court has illegally held that there is no
necessity for execution of the decree by partitioning the suit house by metes
and bounds. The decree itself directed for partition and delivery of
possession of 1/5th share in the suit house. It is also contended that the
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Commissioner has committed gross illegality in carrying out the
measurement of the suit house in such a manner so as to include in it the
properties constructed adjoining to the suit house and thereby enhancing the
area of the suit house to 906.40 sq. ft. instead of the original area which is
admittedly 610.sq. ft. Thus, it is prayed that the impugned orders be set aside.
The counsel for the petitioners has placed reliance on the decision of this
Court in Ahamad Khan and others Vs. Bhaskar Ddatt Pandey and others -
2024 SCC OnLine MP 5157 and also on the decision of the Madras High
Court in Ananta Ramappa and another Vs. Subraya and another - 1915 The
Law Weekly 430.
9. Per contra, the counsel for defendant No. 3 has supported the orders
passed by the Executing Court and submitted that the Executing Court has
rightly observed that the decree holders have purchased 1/5" share in the suit
house vide sale deed dated 15-12-1993 in which it was stated that 180 sq.ft.
on the ground floor and similar area on the first floor has been sold, their suit
has been decreed on the basis of their sale deed hence they have to deliver
possession of that area and in such circumstances there is no necessity for
delivering possession to them by metes and bounds and that there is no
dispute with respect to the area of the suit house. The Executing Court on
the review application has also rightly observed that the decree did not
contain the specification or area of the disputed property hence it was
required to go beyond the decree and it was its duty to interpret the decree
properly. It was further observed that the plaint and judgment do not contain
any specification or area of the suit house and the sale deed, which was the
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basis of the suit, was also silent about the specification or area of the whole
house and specified only sold properties hence the suit house cannot be
partitioned when total area of this property was not the subject matter of the
trial and that the order dated 16-06-2015 need not be reviewed. Hence, no
interference is required in this petition and the present petition is liable to be
dismissed. The counsel for the respondent further submits in the present
case, undisputedly the sale-deed dated 17.9.1957 (Annexure P-2) has neither
been exhibited nor it was filed in the suit upto the Supreme Court. The
counsel has placed reliance on decision of the Orissa High Court Panchanan
Rout and others Vs. Kailash Mohanty and others (Second Appeal No. 185 of
1992) decided on 12.2.2018 and submitted that the pleading is not a proof
and absence of exhibited documents render the case unproven.
10. The counsel has also placed reliance on the decision of this Court
in Anil Kumar Vs. Afzal Anees - 2011 (4) MPLJ 656, decision of Rajasthan
High Court in Shriram General Insurance Company Ltd. Vs. Manoj Kumar
and others - 2022(8) WLC 468 and in Thakkar Vasudev Kanaiyalal Vs.
Amendment as per order dated 3.8.2022 - 2023 NCGUJHC 39857.
11 . Heard the submissions advanced on behalf of the parties and
perused the record.
12. On perusal of the record, it reflects that the judgment and decree
dated 1.11.2002 (Annexure P-6) was placed before the Executing Court
along with an application under Order 20 Rule 18 of the Code of Civil
Procedure for drawing final decree. Upon receipt of the application, a writ of
commission was issued by the Executing Court on 8.10.2012 (Annexure P-
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9). The said order of issuance of writ was not assailed by the original
petitioner. Pursuant to order of issuance of commission, the Commissioner
submitted a report dated 19.11.2014. The said report was disputed by the
petitioners by filing objection vide Annexure P-11. The Executing Court
rejected the said objection.
13. A perusal of the order passed by the Executing Court reflects that
the Court after taking into consideration the petitioners' objection concluded
that as per the decree, decree holder was held entitled for 1/5th share in the
suit property. The Court further observed that the decree holder has
purchased 1/5th share in the suit property vide sale deed dated 15.2.1993
(Annexure P-4) and in the Commissioner's report, it was clearly mentioned
that the decree holder was already in possession of 180 sq. feet of the land on
the ground floor of the property in question. The Court also concluded that in
such cases, there was no requirement to carry out demarcation by metes and
bounds. The Court further observed that the Commissioner with the
assistance of an Engineer carried out measurement and came to a conclusion
that on the ground floor the plaintiff/decree holder was in possession of 180
sq. feet i.e. 1/5th share of the property in question and also concluded that
just above the said floor, the present petitioner/judgment debtor was in
possession of 180 sq. feet of the land.
14. As per the decree the possession of 180 sq feet which is in first
floor was to be handed over to the decree holder and undisputedly there was
no challenge to sale-deed dated 15.2.1993 contained in Annexure P-4
purchased by the plaintiff/decree holder. It was also not the case of the
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judgment debtor that the decree holder was in possession of the land in
excess than he was already possessed of. It is evident from the record that
claiming 1/5th share in the suit property and separate possession thereof, the
suit in question was filed. The said suit was decreed, first appeal against the
same was also dismissed as abated and later on SLP was also dismissed. It is
further evident from the report of the Commissioner that total constructed
area of the property in question was 906.40 sq. ft. and as per the said
Commissioner's report, 1/5th share becomes 180 sq.feet only, possession of
which was to be handed over to the decree holder.
15. In the present case, undisputedly the sale-deed dated 17.9.1957
(Annexure P-2) has neither been exhibited nor it was filed in the suit. The
sale-deed dated 17.4.1984 was found to be valid upto 1/5th share of Smt.
Hukum Kaur only as decided by the trial Court.
16. Thus, The Executing Court in the considered view of this Court
did not commit any error in rejecting the objection submitted by the
judgment debtor and the review thereof has also rightly been dismissed by
the Executing Court.
17. The judgments relied upon by the counsel for the petitioner in the
case of Ahamad Khan and others Vs. Bhaskar Ddatt Pandey and others -
2024 SCC OnLine MP 5157 has no applicability in the present case,
inasmuch as, in the present case there was no challenge by the
petitioner/defendant to the sale-deed, on the strength of which the decree
holder/plaintiff claimed his right. Simultaneously, the reliance on the
decision of the Madras High Court in Ananta Ramappa and another Vs.
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Subraya and another - 1915 The Law Weekly 430 is also misplaced,
inasmuch as, undisputedly 180 sq. feet of house in question is 1/5th share of
the total property and the decree holder was already in possession of 180 sq.
feet on the ground floor and above ground floor, 180 sq. feet is in possession
of the judgment debtor, which is to be handed over to the decree
holder/plaintiff.
18. Resultantly, this Court does not find any ground to interfere in the
impugned orders. The petition, being devoid of merits, is hereby dismissed.
(MANINDER S. BHATTI)
JUDGE
PB
