Jharkhand High Court
Baldeo Prasad Gupta vs State Of Jharkhand Through Its Chief ... on 16 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.587 of 2018
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Baldeo Prasad Gupta, age 73 yr., son of late Shambhu
Prasad Gupta/Sah/Lal and grandson of late Ram Charan
Lal/Sah, formerly working as senior J M G 1 Officer in
Govt. of India undertaking Bank, resident of village and
P.S. and P.O. at Kamatar, District-Jamtara, Presently stay
at 106-B, Maha Laxmi Apartment, East Boring Canal Road,
Patna-800001, Mob. No.8084866810.
... ... Appellant
Versus
1. State of Jharkhand through its Chief Secretary to
Deputy Commissioner and Superintendent of Police,
Bokaro and Jamtara, P.O. & P.S. Bokaro & P.O. & P.S.
Jamtara.
2. Mr. Ramji Lal Rakhan, Mr. Arun Lal Rekhan, Mr.
Subhas Lal Rekhan, son of and Mrs. P. Devi wife of late
Janki Lal Rekhan resident of Jamtara, Near Patodiya
Dharmshala, Jamtara Dumka Road, P.O. and P.S.-
Jamtara (Jharkhand).
3. Mr. Durga Lal Rekhan and Mr. Chhangmal Lal Rekhan
son of late Gopi Ram Rekhan and their heirs.
4. Mr. Pradeep Kr./Pd. Gupta and Mr. Manoj Kr./Pd.
Gupta son of late Yugal Kishor Gupta and their heirs.
5. Mr. Manoj Kumar Mondal son of late Ganpati Mondal
and heirs.
6. Mr.Rameshwar Prasad Sah son of late Gouri Prasad Sah
and heirs.
7. Mr. Kanhaiya Prasad Gupta son of late Yamuna Prasad
Gupta and heirs
8. Mr. Chituka Mondal son of late Nunu Lal Mondal and
heirs.
9. Mr. Pramod Prasad Gupta son of late Kedar Prasad
Gupta and heirs.
10. Mr. Narayan Mahato son of late Moti Mahato and heirs.
11. Mr.Shantosh Prasad Sah son of late Jageshar Prasad
Sah and heirs.
12. Mr. Jhari Bhandari son of late Bhola Bhandari and
heirs.
13. Mr. Pyari Bhandari son of late Dhani Bhandari and
heirs.
14. Mr. Pawan Kumar Sah son of late Bajrang Prasad Sah.
L.P.A. No.587 of 2018
Page 1
15. Mr. Tetuwa Ansari/ Minya son of late Khedu Minya and
his heirs.
16. Mr. Gopal prasad Sah son of late Sita Ram Sahand heirs
relative.
17. Mr. Baijnath Prasad Sah son of late Muni Sah and his
heirs.
18. Mr. Munni Rawani son of late Chhotu Rawani and his
heirs.
19. Mr. Rameshwar Mondal son of late Moti Mondal.
20. Mr. Prabhu Mondal son of late Kodo Mondal and heirs.
Address of No. 3 to 20, Village -and P. O. and P. S. -
Karmatar - District- Jamtara (Jharkhand).
21. Mr Nand Lal Barnwal and S. K. Barnwal son of late
Kamala Devi (Mother)and late Arjun Lal Barnwal (Father)
and their heirs relatives.
22. Mrs. Geeta Devi wife of Mr. Chadra Bhusan Barnwal and
her heirs relatives.
23. Mr. Aatma Ram Singh son of late-not known and his
heirs. Address of No. 21 to 23, at- Chas, Jodhadih More,
Near Chas Gurudwara, P.O. And P. S. - CHAS. Dist.
Bokaro. (Jharkhand).
... ... Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : In Person
Ms. Varsha Ramsisaria, Advocate
For the Respondents : None
C.A.V. on 01.05.2024 Pronounced on 16/05/2024
Per Sujit Narayan Prasad, J.
1. The instant appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 31.08.2018 passed by learned Single Judge of this Court in C.M.P. No.440 of 2016 whereby and whereunder the order passed by the learned Senior Civil Judge 1st, Jamtara in L.P.A. No.587 of 2018 Page 2 Execution Case No.2/1997 and 4/1977 has been refused to be interfered with on the ground that against the said order civil revision being Civil Revision No. 49 of 2010 and Civil Review No. 59 of 2013 have been withdrawn and the grievance of the petitioner with respect to the adjudication of his right, title and interest over the property cannot be decided in the civil miscellaneous petition. However, liberty has been granted to the petitioner to raise the point before the appropriate court.
2. The brief facts of the case, which appear from the pleadings, read hereunder as :-
It is the case of the petitioner that some persons are in illegal possession of his property and Execution Case no.4/1977 was filed by the petitioner for recovery of his share but the learned court has dismissed the said petition.
3. The survey settlement map of 1929-32 did not reflect the correct and appropriate position with respect to the property situated at Karamtar over plot no.1168 and 2285 under Khata no.145 and portion of the land of neighbouring plots.
4. The father of the petitioner had acquired the land after the survey settlement which was decreed in Title Suit no.156/7/1969/1976. The report submitted by Amin is false and against the fact and the survey map is not valid. L.P.A. No.587 of 2018
Page 3
5. It is the further case of the petitioner that the learned court has also failed to appreciate that the opposite parties did not produce any evidence or documents regarding their possession and in fact they have usurped the share of the property of the petitioner.
6. The judgment debtor neither paid the amount of Rs.16,02,000/- with interest at the rate of 24% and the petitioner has been deprived from justice and his right, title and interest with respect to property in Karmatar.
7. In Civil Revision No.49/2010 and Civil Review No.59 of 2013 it was prayed that respondents had encroached upon the share of the property of the petitioner at Chas and the petitioner is the owner of the said property and is entitled to receive the share along with cost as mentioned in the application.
8. It has further been stated that since the petitioner has approached this Court for protection of his right, title and interest, appropriate writ be issued with respect to his right and interest and the Deputy Commissioner, Jamtara and Bokaro be directed to remove the persons who have encroached upon the property of the petitioner with a further direction upon the authorities to pay compensation amount of Rs.50,000/- per shop at village Karmatar and damages mentioned in the application as he has been deprived of his right, title and interest. L.P.A. No.587 of 2018
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9. It is evident that the petitioner in person had filed a civil miscellaneous petition before this Court under the provision of Section 151 of the C.P.C. praying therein that this Court is empowered to exercise its inherent power to protect the right, title and interest of the petitioner over the share in the property situated in village Karmatar and Chas within the District of Bokaro.
10. The case of the petitioner is that the ancestor of the petitioner had acquired 3 kathas of land and constructed shops which are situated at village Karmatar and neighbouring plot nos.1168 and 2285 under Khata no.145 and the right, title was confirmed in Title Suit no.156/7/1969/1976. The father of the writ petitioner had also purchased the plots as per the details as contained in para 4 of the aforesaid Civil Miscellaneous Petition.
11. The execution case was filed for execution of the decree passed in Title Suit No.156/7/1969/1976 being numbered as Execution Case No. 4 of 1977 for recovery of his share, but the same was dismissed on the ground that if the clear description of property sufficient to identify the same is not given then the application may be dismissed under Order 21 Rule 17(1A) of C.P.C.
12. The petitioner-in-person is present. However, Miss Varsha Ramsisaria, learned counsel, who since is in the L.P.A. No.587 of 2018 Page 5 panel of Jharkhand High Court Legal Services Committee, to appear in the present case on behalf of the appellant.
13. The party-in-person has submitted that he is being subjected to unnecessary harassment, since, the right of the appellant is not being adjudicated.
14. Miss Ramsisaria, learned counsel for the appellant, has submitted that the decree passed in favour of the petitioner was the subject-matter of execution case being Execution Case No. 02/1997 and 04/1977, but the objector had filed petition under Order 47 Rule 1 of the C.P.C. making an objection in execution of the said decree. The said petition filed under Order 47 Rule 1 of the C.P.C. was allowed vide order dated 24.02.2014.
15. One title suit being Title Suit No.12 of 1999 was filed by the respondents herein against the ex-parte judgment and order dated 03.02.2001. Against the aforesaid order dated 03.02.2001, Civil Revision No.49 of 2010 was filed before the High Court which was disposed of vide order dated 11.07.2013 giving liberty to the petitioners to prefer appropriate proceedings before the competent court having jurisdiction.
16. The order dated 11.07.2013 was challenged by filing Civil Review No.59 of 2013 which was allowed vide order dated 13.03.2015 recalling the order dated 11.07.2013. The L.P.A. No.587 of 2018 Page 6 Civil Revision No.49 of 2010 was directed to be listed for hearing the matter on merit.
17. However, both Civil Revision No.49 of 2010 and Civil Review No.59 of 2013 were withdrawn.
18. It has been submitted that against the withdrawal of civil revision being Civil Revision No.49 of 2010, a civil miscellaneous petition, being C.M.P. No.440 of 2016 was filed under Section 151 of the CPC before this Court.
19. This Court has passed order on 31.08.2018 dismissing the said miscellaneous petition, on the ground that the Civil Revision No.49 of 2010 and Civil Review No.59 of 2013 since have been withdrawn, hence the remedy lies elswhere.
20. Hence, while dismissing the Civil Miscellaneous Petition, the liberty was granted to search out the remedy.
21. The further submission has been made that although the instant Letters Patent Appeal was also withdrawn with the liberty for redressal of the grievance as per the order dated 02.03.2020 (Order No. 13 passed in Letters Patent Appeal). But subsequent thereto, the order dated 02.03.2020 has been recalled by allowing the restoration application being C.M.P. No.562 of 2022 and thereby the present appeal after its revival has been listed today.
L.P.A. No.587 of 2018
Page 7
22. This Court has heard the party-in-person as also the assisting counsel Ms. Varsha Ramsisaria.
23. It needs to refer herein that the appeal has been filed under Clause 10 of Letters Patent against the order passed in C.M.P. No.440 of 2016 which was filed under Section 151 of CPC.
24. The Letters Patent Appeal is maintainable against the order passed by the writ court under Article 226 of the Constitution of India or if an order has been passed under Section 100 A of the Code of Civil Procedure, if the maintainability to maintain the intra-court appeal has been made out.
25. But the Letters Patent Appeal will not be maintainable against the order passed by learned Single Judge in Civil Miscellaneous Petition filed under Section 151 of the C.P.C.
26. However, the learned Single Judge, while hearing the C.M.P., has dismissed the said petition on the ground that the adjudication of right, title and interest over the property cannot be decided in the Civil Miscellaneous Petition.
27. The learned Single Judge, in view of the withdrawal of the aforesaid Civil Revision/Review, has declined to interfere with the same in exercise of power conferred under Article 151 of the C.P.C. However, liberty was L.P.A. No.587 of 2018 Page 8 granted to the petitioner to search out the remedy before appropriate forum.
28. The said order was challenged by filing the intra- court appeal under Clause 10 of the Letters Patent being L.P.A. No.587 of 2018.
29. It is evident from the order dated 02.03.2020, the Co-Ordinate Bench of this Court, on the leave having been sought for by the party-in-person, namely, Baldeo Prasad Gupta, to withdraw the appeal so as to seek appropriate remedy as would be available to him under law for redressal of his grievances, the appeal was dismissed as withdrawn with the aforesaid liberty granted to the appellant, for ready reference, the order dated 02.03.2020 is being quoted hereunder as :-
"13/Dated: 02.03.2020 Mr. Dhananjay Kumar Pathak, learned G.A.-III appearing for the State has raised an objection regarding maintainability of this Letters Patent Appeal.
After some argument, Mr. Baldeo Prasad Gupta, who appears in person, seeks leave to withdraw this appeal to seek appropriate remedy which would be available to him under law for redressal of his grievances.
In the result, this appeal is dismissed as withdrawn with the aforesaid liberty granted to the appellant."
30. It further appears that after withdrawal of the said appeal and the appeal having been dismissed as L.P.A. No.587 of 2018 Page 9 withdrawn, one C.M.P. was filed for restoration of the said appeal being C.M.P. No. 562 of 2022. The said CMP was allowed vide order dated 28.02.2024 by restoring the appeal and in consequence thereof the instant appeal has been listed today on Board.
31. The argument has been advanced by the party-in- person that his right and interest is not being cared of by any of the courts of law and hence, it requires adjudication in the instant appeal.
32. It needs to refer herein that Letters Patent Appeal Court is having no original jurisdiction, rather, it is by way of intra-court appeal to look into the propriety of the order passed by the learned Single Judge, either in the order passed under Section 100 A of the C.P.C. or Article 226 of the Constitution of India as also other applications if found to be maintainable.
33. Herein, the admitted case is that after having the decree, the father of the appellant filed Execution Case No.2/1997 and 4/1977. The objector has filed application under Order 47 Rule 1 which was adjudicated as per the legal premise, the order which was passed in the petition filed under Order 47 Rule 1 has replaced the original decree.
34. Thereafter, the party-in-person has filed Civil Miscellaneous Petition under Section 151 C.P.C. but the L.P.A. No.587 of 2018 Page 10 same has also been dismissed giving liberty to the petitioner to search out the remedy before appropriate forum. Thereafter, the present appeal has been filed.
35. The Coordinate Bench of this Court, as it appears from the order dated 02.03.2020, has allowed the party-in- person to withdraw the appeal with the liberty to search out the remedy for redressal of his grievances as the remedy for redressal of the grievance lies elsewhere.
36. But after its restoration vide order dated 28.02.2024 passed by Co-Ordinate Bench of this Court, again the argument has been advanced to go into the merit of this case.
37. The question herein is that when the order has been passed by the learned Executing Court in a petition filed under Order 47 Rule 1 of the C.P.C., the same has replaced the decree passed in the title suit against which revision was filed which has also been dismissed, then where is the question to entertain the instant appeal.
38. That is a reason, this Court vide order dated 02.03.2020 has granted leave to the petitioner to withdraw and search out the appropriate remedy, but instead of availing the said liberty, as per the order dated 02.03.2020, again petition for restoration was filed.
39. This Court, therefore, is of the view that the remedy for redressal of the grievance is not the intra-court appeal, L.P.A. No.587 of 2018 Page 11 rather, the remedy lies elsewhere which is to be searched out by the petitioner for redressal of his grievance.
40. Accordingly, the instant appeal is not maintainable and hence, dismissed.
41. However, reserving the liberty to the petitioner to search out the remedy for redressal of his grievance.
42. The instant appeal stands dismissed and accordingly, disposed of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Birendra/ N.A.F.R.
L.P.A. No.587 of 2018
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