Tripura High Court
Smt. Jatna Sinha vs Sri Kajal Mani Sinha on 26 September, 2024
Page 1 of 7
HIGH COURT OF TRIPURA
AGARTALA
CRP No.91 of 2024
1. Smt. Jatna Sinha, D/o Lt. Haripada Sinha, W/o Sri Jay Kumar Sinha,
resident of Choudhurypara, P.O.-Goldharpur, P.S.- Kailashahar, District-
Unakoti Tripura.
2. Smt. Mina Sinha, W/o Lt. Tridip Sinha @ Ranjan Sinha.
3. Sri Pankaj Sinha, S/o Lt. Tridip Sinha @ Ranjan Sinha.
4. Sri Polit Sinha, Lt. Tridip Sinha @ Ranjan Sinha.
5. Smt. Priyanka Sinha, D/o Lt. Tridip Sinha @ Ranjan Sinha,
All are resident of Kirtantali, P.S.- Kailashahar, District- Unakoti
Tripura.
6. Smt. Rina Sinha, D/o Lt. Haripad Sinha, W/o Apu Sinha, of Mohanpur,
P.S.- Kamalpur, District-Dhalai.
......... Petitioner(s).
Versus
Sri Kajal Mani Sinha, S/o Late Kamala Kanta Singha, resident of Kirtantali,
P.S. Kailashahar, District - Unakoti Tripura.
....... Respondent(s).
For Petitioner (s) : Mr. D. Bhattacharya, Sr. Advocate,
Mr. Samar Das, Advocate,
Mr. S. Saha, Advocate,
Ms. Sibangi Purkayastha, Advocate.
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
26/09//2024
Heard Mr. D. Bhattacharya, learned senior counsel assisted by
Mr. Samar Das, learned counsel for the petitioners.
[2] Petitioners are the judgment debtors in T.S. No. 01(CC)/2016
which was a counter claim by the decree holder in TS No.26/2015. The title
suit [TS No.26/2015] was dismissed vide judgment dated 02.12.2016 and the
counter claim [T.S. No. 01(CC)/2016] was allowed. Both Title Appeal
No.1/2017 and Title Appeal No.2/2017 preferred by the plaintiffs and the
defendants i.e. is the counter claimants stood dismissed vide judgment dated
17.04.2018 by the Court of learned Additional District Judge, Unakoti
Judicial District, Kailashahar (Annexure-2). The second appeal RSA
No.17/2018 along with RSA No.18/2018 were also dismissed vide judgment
dated 11.02.2022 (Annexure-3). As such, the judgment & decree of the trial
Court stood affirmed up to the second appellate Court. The decree dated
05.12.2016 is extracted hereunder:
"It is order and decreed that, "In the result, TS-26 of
2015 is dismissed with cost.
On the other hand cross suit i.e. counter-claim No. TS-
01(CC) of 2016 is decreed with cost.
Right, title and interest of counter-claimant/defendant
No.1 over the suit land measuring 0.03 acres under R.S. Plot
Nos.69 & 70 of Mouja-Gouranagar covered under registered
sale deed No.1-779 dt. 16.03.1982 is hereby declared and
made as absolute. He is entitled to recover the khash
possession of suit land by evicting the plaintiff/defendant in
due execution, if the possession is not handed over
voluntarily by two months from the date of delivery of this
judgment, Counter-claimant/ defendant No.1 is also entitled
to receive land compensation (Award) from competent
authority in L.A. Case No.03/Kai/2012 against the
acquisition of land for public purpose covering under
registered sale deed No.1-779, dt.16.03-1982.
Decree be prepared accordingly"
Announced.
Sd/-02-12-2016
(S. Bhattacharjee)
Civil Judge (Sr. Division)
Unakoti Judicial District, Kailashahar
and that the sum of Rs.7,006.50/- (Rupees Seven
thousand Six & fifty paise) only be paid by Plaintiffs to the
Defendants on account of the costs of this suit.
The Date of the Judgment
On 02-12-2016
Plaintiffs Rs. P. Defendants Rs. P
1. Stamp for 20 00 1. Stamp for 01 00
Plaint Power.
2. Stamp for 02 00 2. Stamp for 05 50
Power petition and
3. Stamp for affidavits.
petition and 1 50 3. Cost of
affidavits. exhibits
4. Cost of exhibits - including
including copies made
copies made under the
under the Banker's
Banker's Books"
Books" Evidence
Evidence Act, Act, 1891 7,000 00
1891 5. Pleaders Fee
5. Pleaders Fee of 7,000 of
Rs.2,00,000/- Rs.2,00,000/
6. Subsistence and -
travelling 6. Subsistence
allowances of and
witnesses travelling
(Including those allowances
of party, if of witnesses
allowed by (including
Judge) those of
7. Process fees 02 00 party, if
allowed by
8. Commissioner' Judge)
s Fee 7. Process fees
9. Demi/ Paper 8. Commission
10. Cost of er's Fee
Transmission of 9. Demi/ Paper
records 10. Cost of
11. Other costs transmission
allowed under of records
the Code & 11. Other costs
Civil Rules & allowed
Orders. under the
12. Adjournment code &
costs not paid in Civil Rules
cash (to be & Orders.
added or 12. Adjournmen
deducted as the t costs not
case may be) paid in cash
(to be added
or deducted
as the case
may be)
DECLARA
TION.
Total 7,025 50 Total 7,006 50
1st Schedule (Related Land)
Mouja & Tehshil - Gournagar, Khatian No.293 (Old),
presently - 89, C.S. Plot Nos.-307 & 308, R.S. Plot Nos. 68,
69 & 70, Land Measuring - 0.05 acres. Bounded by North-
Kailashahar- Kumarghat Road, East & South - Plaintiff &
others and West - Kailashahar - Kamalpur Road.
2nd Schedule (Suit Deed)
Purported Registered Deed bearing No.-1-779, dated
16/03/1982 of Kailashahar Sub-Registry Office, Purported
Executed by the plaintiff in favour of Kamalakanta Sinha
predecessor of the defendant Nos.1 & 2 and purportedly
written by defendant No.3.
Sd/-
(S. Bhattacharjee)
Civil Judge (Sr. Div.)
Unakoti Judicial District: Kailashahar
Plaintiffs Rs. P. Defendants Rs. P
1. Stamp for 20 00 1. Stamp for 00 00
Plaint Power.
2. Stamp for 08 00 2. Stamp for
Power petition and 02 00
3. Stamp for affidavits.
petition and 1 50 3. Cost of exhibits
affidavits. including
4. Cost of exhibits copies made
including under the
copies made Banker's
under the Books"
Banker's Evidence Act,
Books" 1891
Evidence Act, 5. Pleaders Fee of 8,000
1891 Rs.2,00,000/-
5. Pleaders Fee of 8,000 00 6. Subsistence and
Rs.2,00,000/- travelling
6. Subsistence and allowances of
travelling witness
allowances of (including those
witnesses of party, if
(Including those allowed by
of party, if Judge)
allowed by 7. Process fees
Judge) 8. Commissioner'
7. Process fees 02 00 s Fee
8. Commissioner' 9. Demi/ Paper
s Fee 10. Cost of
9. Demi/ Paper transmission of
10. Cost of records
Transmission of 11. Other costs
records allowed under
11. Other costs the code &
allowed under Civil Rules &
the Code & Orders.
Civil Rules & 12. Adjournment
Orders. costs not paid in
12. Adjournment cash (to be
costs not paid in added or
cash (to be deducted as the
added or case may be)
deducted as the DECLARATIO
case may be) N.
Total 8,031 50 Total 8,002 50
SCHEDULE OF THE LAND
Mouja and TK - Gouranagar,
Khatian No.89, C.S. Plot No.307, 308 (Old)
Present C.S. Plot Nos.69, 70 Land Measuring - 0.03 Acres.
DESCRIPTION OF THE SALE DEED
Sale deed No.1-779, dt. 16-03-1982
Sd/-
(S. Bhattacharjee)
Civil Judge (Sr. Div.)
Unakoti Judicial District: Kailashahar
[3] Civil Misc. (Execution) No.02/2017 was thereafter preferred by
the decree holder. Petitioners/judgment debtors are aggrieved by the order
dated 06.05.2024 and 16.05.2024. Decree holder had, in the meantime, during
execution case filed an amendment application under Section 152 of the CPC
for correction of the decree. Objection to that was also filed by the decree
holder. An application under Section 47 of the CPC read with Section 151 of
CPC was also filed by the decree holder with a prayer that 0.02 acres of
remaining decretal land from plot No.69, under Khatian No.89 of Mouja and
Tehshil-Gouranagar be executed as 0.01 acres of land in RS Plot No.70 was
acquired in the year 2021 during pendency of the second appeal and 0.01
acres of land from the RS Plot No.69 was acquired by the Government for
which the decree holder has already got compensation. The learned executing
Court after consideration of the submissions of the learned counsel for the
parties on this application inter alia held as under:
"After hearing both sides, under the overall prevailing
circumstances, No land in RS plot number 70 is executable as
no land remained in RS plot number 70 due to acquisition of
land by the Government.
Therefore, .02 acre of land under RS plot number 69
under Khatian number 89 is to be executed.
Situated thus, there is no bar in filing a petition under
section 47 CPC in the status of the decree holder and
moreover in the case of AV Mohamed Ali Sahib versus
Naina Mohammed Maracair (1981)12 MAD CK 0052, it was
held that ....." a question relating to execution, discharge,
satisfaction of a decree may be raised by the decree holder or
by the JD in the execution department and the pendency of an
application for execution by the decree holder is not a
condition precedent fair the exercise of the Court's power
under section 47 CPC."
Under the present situation, the petition filed by the
decree holder under section 47 CPC stands allowed but the
application by the decree holder under section 152 CPC
stands rejected."
[4] Thereafter, necessary directions were issued upon the SDM,
Kailashahar for appointment of one independent survey knowing
commissioner for the purpose of execution works. The decree holder was
directed to file Writs to be issued on the bailiff and the survey commissioner
concerned towards execution of 0.02 acres of land in RS plot number 69
under Khatian number 89. The matter appeared on 09.05.2024 for filing
Writs by the decree holder. Thereafter the same was again adjourned on
09.05.2024 and 14.05.2024. On 16.05.2024 the office was directed to check
and verify the Writs filed by the decree holder and issue the same to the
bailiff and the appointed survey commissioner if the Writs filed by the decree
holder are found to be correct and proper. The bailiff was directed to remove
any person who refuses to vacate form the 0.02 acres of land under RS plot
No.69 appertaining to Khatian No.89 in accordance with the Writ and to do
all necessary lawful acts in accordance with Order 21 Rule 35 of CPC for
putting the decree holder in possession. Other directions were also passed for
ensuring execution of the decree upon the Superintendent of Police, Unakoti
District, Kailashahar.
[5] In this background, Mr. D. Bhattacharya, learned senior counsel
for the petitioner submits that the judgment debtor have the apprehension that
in the execution of 0.02 acres of land under RS plot No.69, the 0.01 acres of
land under RS plot No.70 of the judgment debtor could also be touched.
Learned senior counsel for the petitioner has taken this Court to the decree
dated 05.12.2016, the judgment passed in appeal by the first appellate Court
dated 17.04.2018 and also the judgment of the second appellate Court dated
11.02.2022. He has also drawn the attention of this Court to the amendment
application filed by the decree holder, the objection thereto and also the
application under Section 47 of the CPC by the decree holder. He submits that
the executing Court could not correct the decree. Therefore, application for
correction of the decree under Section 151 and 152 of CPC were
misconceived. However, learned senior counsel for the petitioner is not in a
position to dispute that in the execution case the learned executing Court
taking note of the admitted fact that some portion i.e. 0.01 acres of land of
plot No.69 out of 0.03 acres of land under plot No.69 has been acquired,
directed execution of the remaining 0.02 acres of land only under RS plot
No.69, Khatian No.89 which is evident from the extracted operative portion
of the order. The learned executing Court has also taken note that 0.01 acres
of land under plot number 70 was also already acquired.
[6] If that be so, this Court does not find any infirmity in the
impugned order dated 06.05.2024 as the executing Court has directed
execution of only remaining 0.02 acres out of 0.03 acres of land in RS plot
No.69 under Khatian No.89 of Mouja-Gouranagar. In those circumstances,
the apprehension of the petitioner is to be misplaced.
[7] Accordingly, the instant petition is disposed of without any
interference in the impugned orders. Pending application(s), if any, shall also
stand disposed of.
(APARESH KUMAR SINGH), CJ
Munna S DIPESH DEB Digitally signed by DIPESH DEB
Date: 2024.09.30 17:33:33 +05'30'
