Gauhati High Court
Lalbabu Sah vs Pradip Bhattacharjee And 2 Ors on 29 November, 2021
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/7
GAHC010202092019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/118/2019
LALBABU SAH
S/O- LATE LAKHI SAH, R/O- TEZPUR TOWN, WARD NO. 6, ASEB ROAD, P.O
AND P.S- TEZPUR, DIST- SONITPUR, ASSAM
VERSUS
PRADIP BHATTACHARJEE AND 2 ORS
S/O- LATE RAMESH CHANDRA BHATTACHARJEE, R/O- TEZPUR TOWN,
WARD NO.6, ASEB ROAD, P.O AND P.S- TEZPUR- 784001, DIST- SONITPUR,
ASSAM, PIN- 784001
2:MRINAL KANTI BHATTACHARJEE
S/O- LATE RAMESH CH BHATTACHARJEE
R/O- TEZPUR TOWN
WARD NO.6
ASEB ROAD
P.O AND P.S- TEZPUR- 784001
DIST- SONITPUR
ASSAM
PIN- 784001
3:KALPANA BHATTACHARJEE
D/O- LATE RAMESH CHANDRA BHATTACHARJEE
R/O- TEZPUR TOWN
WARD NO.6
ASEB ROAD
P.O AND P.S- TEZPUR- 784001
DIST- SONITPUR
ASSAM
PIN- 78400
Advocate for the Petitioner : MR. S P ROY
Page No.# 2/7
Advocate for the Respondent : MR. P SUNDI
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT AND ORDER(ORAL) Date : 29-11-2021 Heard Mr. S.P. Roy, the learned counsel appearing for the petitioner and Mr. B.C. Das,the learned senior counsel appearing on behalf of all the respondents.
2. The petitioner is before this Court under Article 227 of the Constitution of India challenging an order dated 23/7/2019 passed in Title Execution Case No. 8/2011 by the Munsiff No. 1, Tezpur thereby directing the Civil Nazir to demolish the portion of the building constructed by the petitioner, which is in violation to the compromise decree dated 30/9/2005.
3. The brief facts of the instant case is that the Respondent Nos. 1, 2 & 3 along with one Prabeen Ch. Bhattacharjee and Ratna Bhattacharjee filed a suit against the petitioner herein who was the defendant No. 1 in the suit along with two others seeking declaration that the pucca construction raised by the defendants without leaving space from the boundary wall of the plaintiffs is illegal and liable for demolition; and for permanent and perpetual injunction restraining and prohibiting the defendants from raising any construction without leaving prescribed space from the pucca boundary wall of the plaintiffs. The said suit was registered and numbered as Title Suit No. 82/2005. Pursuant to service of summons, the parties to the suit amicably arrived at a settlement and in pursuance thereof filed a joint application under Order XXIII Rule 3 of the Code of Civil Procedure for passing a decree in terms with the amicable settlement which was incorporated in the said compromise petition.
4. For the purpose of elucidating the dispute in controversy, it would be relevant to quote the terms as it appears in the translated copy of the petition enclosed as Annexure --2 to the instant petition and the same are quoted herein below:-
"1. That if the defendant raise any construction upon his land should be constructed by Page No.# 3/7 leaving 3 feet margine from boundary wall and if construction raised should be at the margine of 3 ft. from the 3 ft. depth of his land to above correction from the boundary wall.
2. That no water from tin roof or R.C.C. roof top will be poured into the wall of the plaintiff.
3. Defendants meanwhile removal his constructed structure by keeping 3 ft. margine on received of notice of the case.
4. Defendant agreed to raise construction in near future by keeping 3 ft. margin from the boundary wall and dependents shall not have raise water tank or plastic tank or water storage material or shall not dig land within 3ft. of boundary wall. Be mentioned that the defendant shall remove his existing structure within 10 days from the date of Compromise failing which the plaintiff shall have the right to file execution case for clearing 3ft. land from the boundary wall.
5. That the defendant side agreed to obey compromise terms and conditions and shall not violate the terms and conditions. If defendants make any construction by violating this compromise in that event the plaintiff has the right to remove those construction as per Compromise Decree.
6. This compromise petition shall be part of the decree and prayed for decree the suit.
7. That the party shall bear the cause of the suit."
5. After the filing of the said application praying for passing of a decree of compromise, the Trial Court vide an order dated 30/9/2005 allowed the said application thereby decreed the suit on compromise with a direction that the terms and conditions of the compromise petition shall be a part of the decree.
6. Subsequent thereto, the respondent being aggrieved by the actions of the petitioner for raising construction in violation of the compromise decree filed an application for execution of the said compromise decree in the year 2011, which was registered and numbered as Title Execution Case No. 8/2011. The petitioner filed an objection to the said application denying construction of any permanent structures near the boundary wall of the respondent. Further to that, the petitioner raised the issue that after a lapse of 5 years the respondents herein have raised the issue of non-compliance with the decree. At this stage it may also be relevant herein to mention that apart from the written objection filed by the petitioner, he also filed an application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 praying for appointing a Survey Commission for proper identification of the Schedule property belonging to the decree holder and for determination as to whether Page No.# 4/7 the western portion of the pucca boundary wall is situated over the plot of land measuring 18½ lechas covered by P.P. No. 32/50(old)/682(new) under Dag No.795 (old)/1792(new). The said application under Section 47 of the CPC was registered and numbered as Misc. (J) Case No. 297/2012.
7. The Executing Court, after hearing both the parties vide an order dated 7/9/2012 passed in Misc. (J) Case No. 297/2012 rejected the prayer for issuance of Commission on the ground that admittedly a compromise decree is passed in the suit and identification of the decreetal land is not necessary in the proceedings because the parties admit the fact of the existence of a boundary wall which is taken to be a boundary wall in the decree on the basis of the compromise petition. It was also observed that the boundary wall was in existence even before passing the compromise decree and as it transpires from the compromise decree, the western boundary wall has been identified as the boundary wall and as such, the petitioner cannot raise the dispute regarding the location of the boundary wall. The said order had attained finality as there was no challenge to the said order. It is also relevant herein to mention vide another order dated 7/9/2012 passed in Title Execution Case No. 8/2011, the Executing Court issued a commission by appointing the Tezpur Development Authority to ascertain as to whether the petitioner had raised any construction on his land in violation to the decree of the Court passed in Title Suit No. 82/2005 and if so, to ascertain as to how and to what extent the Defendant/Judgment Debtor(the petitioner herein) violated the decree. The Tezpur Development Authority was directed to inspect the suit land locally with the help of Lat Mandal or other Revenue Authority as it thinks necessary and submit a report of compliance along with the factual position therein to the Executing Court.
8. Pursuant to the said order dated 7/9/2012, the Survey Commission submitted a report to the effect that the Petitioner/Judgment Debtor had constructed the building leaving 1.5 ft setbacks from the boundary wall and has constructed a temporary structure with wood and G.I. sheet leaving zero setback from the boundary wall. The Executing Court thereupon after taking into consideration the orders passed, the arguments placed by the parties and the report of the Survey Commission, vide an order dated 23/7/2019 allowed the petition preferred by the decree holder/the respondent herein for removing or demolishing the illegal construction erected by the Judgment Debtor (the petitioner herein) over the suit land for Page No.# 5/7 proper execution of the decree and thereby directed the Civil Nazir to demolish the building constructed by the Judgment Debtor(the petitioner herein) in so far it violates the compromise decree dated 30/9/2005 as pointed out by the Report of the Survey Commission and also to submit a report on or before the date fixed. It is against the said order dated 23/7/2019 that the petitioner is before this Court under Article 227 of the Constitution of India.
9. I have heard the learned counsel for the petitioner, Mr. S.P. Roy, who submits that a perusal of the decree which was based on the compromise application would go to show that there was no executable decree and in spite of that, the execution has been directed to be carried out by the Court below. He further submits that vide the order dated 30/9/2005, it was an admitted fact that the contents of the decree were duly complied with but then also after a lapse of 5 years the said decree has been put to execution. The cause of action is a fresh cause of action and on the basis of which the compromise decree cannot be put to execution. Mr. Roy submits that the boundary wall which is in question is not reflected in the Schedule to the plaint and under such circumstances, the question of execution as regards not maintaining setbacks do not arise in the facts and circumstances of the case. He further submits that there was no suit land and as such, the question of execution as directed by the Executing Court was erroneous and liable to be interfered with.
10. On the other hand, Mr. B.C. Das, learned senior counsel submits that the decree on the face of it, more particularly, paragraph 4 of the compromise application would categorically show that it was agreed to between the parties that the defendant shall not raise any construction in near future without keeping 3ft. margin from the boundary wall. The defendant also agreed that he shall not store water tank or plastic tank or water storage materials or shall not dig land within 3 ft. of the boundary wall. It was also agreed upon that the defendant shall remove the existing structures within 10 days from the date of compromise, failing which, the decree holder shall have the right to file execution case for clearing the 3ft land from the boundary wall. Mr. Das further submits that vide order dated 07/09/2012 the Executing Court had in Misc. (J) Case No. 297/2012 categorically held which is the boundary wall in question and the question of identification of the boundary wall does not arise. Further to that, he also submitted that the Executing Court even prior to passing a Page No.# 6/7 writ, had ascertained as to whether there was any violation to the compromise decree by appointing a Commission as could be seen from the order dated 7/9/2012 and the impugned order and it is on the basis of the Commission's report which is an expert body in respect to the instant case, the order impugned in the instant proceedings has been passed. Consequently, no question arises for the purpose of interference with the impugned order is the submission of the learned senior counsel.
11. I have heard the learned counsel for both the parties at length. I have also perused the terms and conditions of the compromise decree and more particularly Clause No. 4 whereby there was a specific arrangement between the parties to the effect that the petitioner/the Judgment Debtor/the Defendant agreed not to raise any construction in near future without keeping 3 ft from the boundary wall and also to keep the said area of 3 ft. vacant from the boundary wall. The said undertaking between the parties as mentioned in Clause 4 of the Compromise Decree is in the form of a perpetual injunction and taking into consideration the proviso to Article 136 of the Limitation Act, 1963 there being no period of limitation, the said execution application has been filed within time and consequently, the objection which has been raised by the counsel appearing for the petitioner that it has been filed after a period of 5 years does not hold any merit. The second objection which has been raised as regards the identification of the wall, the same had already been settled vide Order dated 7/9/2012 as passed in Misc. (J) Case No. 297/2012 and the same had attained finality, wherein it has been categorically held that the wall in question is the western wall. The third objection which has been taken to the effect that the decree was not executable, inasmuch as it is an admitted fact that it has been duly complied with, does not hold water in view of the fact that a perusal of Clause 4 of the Compromise Decree categorically shows about the compliance to be made by the defendant in respect to future construction which is in the nature of a perpetual injunction. The last objection which has been raised out here as regards that there is no suit land on the fact of it, cannot be accepted pursuant to the order of compromise decree whereby the parties have amicably agreed to recognize the particular boundary wall. In the compromise decree, it being specifically spelt out that there shall not be any construction or anything put 3 ft from the boundary wall which is on the western side of the suit land, the said contention as raised by the counsel for the petitioner does not hold Page No.# 7/7 any water.
12. In view of the above, I do not find any merit in the instant petition. Consequently the same stands dismissed.
13. At the time of passing of the above order, Mr. SP Roy, the learned counsel appearing on behalf of the petitioner upon instruction submits that demolition of the existing structures by the Civil Nazir may cause further damage to the existing structures and as such, he gives an undertaking before this Court that within a period of 45 days from today he shall demolish the structures and remove all temporary structures or anything within the area of 3ft from the western boundary wall of the plaintiff i.e. the offending constructions and temporary structures as specified in the Report of the Survey Commission. In view of the undertaking being given out here the petitioner is permitted to demolish the offending constructions as well as remove all the temporary structures which have been stated in the Survey Commission's report to be in violation of the compromise decree within a period of 45 days from today. Failing which, the Executing Court shall go ahead with demolition as directed in the impugned order. Further to that the Respondent shall also be entitled to initiate proceedings for contempt before this Court for violation of the undertaking given herein.
14. With the above observations, the instant petition stands disposed of. No costs.
JUDGE Comparing Assistant