Allahabad High Court
Bhagelu Ram Maurya And 4 Others vs Prem Chandra Maurya And 5 Others on 17 July, 2019
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 54 Case :- WRIT - C No. - 22352 of 2014 Petitioner :- Bhagelu Ram Maurya And 4 Others Respondent :- Prem Chandra Maurya And 5 Others Counsel for Petitioner :- Satyendra Narayan Singh,P.N. Tripathi Counsel for Respondent :- Prasoon Mishra,Mahesh Kumar Dubey,S.C.,Vijay Kant Dwivedi Hon'ble Ajit Kumar,J.
1. Rejoinder affidavit filed today is taken on record.
2. By means of the present petition, the petitioner has questioned the correctness of the order passed by the Civil Judge (Junior Division) dated 4.5.2012 in Execution Case No. 53 of 1980 rejecting the application of the petitioner under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (for short C.P.C). The petitioner thereafter preferred revision before the court below and the court below concurred with the findings returned by the executing court rejecting the same vide order dated 14th March, 2014 which is also under challenge.
3. Briefly stated that facts are that the suit for recovery of possession filed by the defendants-contesting respondents bearing O.S. No. 44 of 1966, initially was dismissed by the Trial Court but in appeal preferred under Section 96 of the CPC, the Second Additional District Judge, Mirzapur had decreed the suit for recovery of damages of Rs. 200/- and recovery of possession of land in dispute after ejectment of the defendants in the said suit. It is worth noticing, at this stage, that the present petitioner was not party to the said suit proceedings and in also in second appeal arising out of the said suit bearing OS No. 441 of 1966.
4. Against the judgment and decree passed by the lower appellate court, the defendants' second appeal bearing No. 2050 of 1980 was dismissed by this Court vide judgment and order dated 8th September, 2006. The respondents decree holders thereafter filed the execution proceedings registered as Execution Case No. 53 of 1980.
5. It appears that during the execution proceedings orders were passed for ejectment of the respondents and restoring the possession in favour of the respondents, the present petitioner set up his claim of possession over the land in question in suit on the basis of a registered sale deed executed by one Brijnath on 31st March, 1982. The present petitioner accordingly instituted suit no. 9 of 2007 seeking a decree in the nature of permanent prohibitory injunction in respect of plot no. 125/1 of 8 biswas. It appears initially an order of status quo was passed in the said case, however, the 6-C application later on was rejected.
6. The present petitioner thereafter proceeded to move an application under Order XXI Rule 97 of the Code of Civil Procedure claiming valid possession over the land on the ground that he is in possession by virtue of sale deed which was never challenged and that he had no claim, insofar as, plot no. 125/2 was concerned but the decree holder confused the court regarding identification of the land on the spot. It is also submitted that the pleadings raised under Order XXI Rule 97 of the Code of Civil Procedure that the total land falling in plot no. 125 in the fasli year 1289 is shown to be only nine biswa and he having purchased eight biswa of land resulting in carving out of his plot no. 125/1, there could not be more than one biswa of land remaining in plot no. 125/2 and, therefore, according to his pleadings the decree was absolutely in-executable and he was liable to be continued in possession and his application deserved to be allowed.
7. The said application, however, was rejected by the executing court holding categorically that the land that was claimed by the present petitioner/applicant was not the same land as subject matter of the suit which has been decreed in favour of the respondents and in support of such findings boundary of the sale deed of the petitioner has been discussed and explained and thus, the court in its ultimate finding came to conclude that the land over which claim has been set up by the petitioner/applicant was misplaced factually and the decree holder cannot be denied the benefit of his decree.
8. The revision has also been dismissed concurring with the findings returned by the executing court.
9. The argument advanced by the learned counsel for the petitioners is that the executing has virtually failed to adjudicate the issue raised before it in the miscellaneous application filed under Order XXI Rule 97 of the CPC and, therefore, this is manifest error of law committed by the executing court in dealing with the miscellaneous application and therefore, the order cannot be sustained in law. He submitted that various pleadings were raised in the application under Order XXI Rule 97 and the contents thereof stood confirmed by the Amean report submitted in the matter in which because of the confusion of the fixed points, the delivery of possession could not be made. This, according to him, is sufficient to demonstrate that the land over which claim had been set up by the decree holder was itself not identifiable and, therefore, the decree was not worth execution on the spot and he deserved to continue with his possession.
10. Countering the submissions advanced by the learned counsel for the petitioners, learned counsel for the respondents submits that the decree has been passed in respect of the land shown in the plaint map which stands corroborated fully. As far as the boundaries to the east of the land of the petitioner is concerned, he submits that convincing findings based on conclusive evidence has come to be returned by the executing court regarding identification of the land and because in the spot inspection some confusion has been shown and doubts have been expressed by the Amean Commissioner, the decree cannot be rendered as in executable.
11. He submits that while executing the decree, it is always open for the court to order for fresh report and that can be examined. Even otherwise he submits that the report is not conclusive so far as the disposal of miscellaneous application under Order XXI Rule 97 is concerned. He has further reiterated that the application under Order XXI Rule 97 are required to be re-adjudicated like suits and so party taking the plea has to lead evidence under Order XXI of Rule 97 of the Code of Civil Procedure and in absence of any document worth an evidence being lead, the court was helpless and rightly so the court concluded that the petitioners/ applicants failed to prove their claim as set up under Order XXI Rule 97.
12. Having heard learned counsels for the parties and their arguments across the bar and having perused the record I find that the suit stood decreed in respect of the land shown in the plaint map. The plaint map which is a part of the plaint shows that towards the east of the disputed land there is a kharanja road, a road made of bricks, whereas the sale deed which has been appended, and which has been said to have been placed before the executing court by the petitioner shows that the land falling towards the east of the land, is agricultural field and thus, what I find is that the Court below has recorded in its order a finding that the land which was being claimed by the petitioner, was the land subject-matter of decree, could not be accepted.
13. On a pointed query made by the learned counsel for the petitioner to demonstrate as to how the findings returned by the executing court is perverse, learned counsel for the petitioner/ applicant has drawn the attention of the Court towards the pleadings raised under Order XXI Rule 97 of the Code of Civil Procedure. From the reading of the pleadings that have come to be raised in the said application under Order XXI Rule 97, I find that in various paragraphs what has been claimed is that the land belongs to the petitioners/applicants by virtue of sale deed and the total area of land is nine biswas out of which eight biswas was subject matter of the sale, however, nowhere it has been stated as to whether there stood brick road or kharanja road when the land was purchased by the petitioner.
14. Yet another contention advanced by the learned counsel for the petitioner in support of the pleadings is that the land was purchased sometimes in the year 1983 and, therefore, nature of land might change, and it could have been converted later on as brick road.
15. The question then arises is two fold: firstly, whose land fell in the east of the land claimed by the petitioner and secondly, how the private land came to be converted into brick road. The pleadings are absolutely silent. Some traces like whisper can be claim to have occurred in Paragraph-15 of the application but it is still not clear from the pleadings as to whose land it was. The pleadings appears to be having some confusion regarding nature of land.
16. Be that as it may, the question still remains to be answered by the petitioners/applicants as to how the land can be claimed to be the land shown in the plaint map which according to the considered opinion of the Court is not traceable either in the pleadings or the documents brought on record. Further the argument advanced by the learned counsel for the respondent is convincing that if a person has moved an application under Order XXI Rule 97 of the Code of Civil Procedure, it is necessary for him to lead evidence in the form of documentary evidence to prove the case of possession. A decree holder cannot be kept waiting only by giving time and time to a person claiming possession if the person claiming possession under Order XXI Rule 97 and therefore, it failed to bring sufficient evidence, a decree holder deserves to have benefit of the decree and executing court cannot keep him waiting.
17. Even otherwise, I find that the petitioners/ applicants before this Court, have already instituted suit bearing O.S. No. 9 of 2007, the petitioner has arrayed the present respondents who are the decree holders as defendants in the said suit. It is always open for the petitioner to claim his rights in the said suit and bind the defendants who are the decree holders but in the present case I find that the application moved by the petitioner under Order XXI Rule 97 has been rightly dismissed by the executing court. I do not find any error, at least substantial one, to interfere with the orders passed by the executing court as well as the order passed in revision.
18. The writ petition lacks merits and is accordingly, dismissed.
19. Interim order, if any, stands discharged.
Order Date :- 17.7.2019 Nadeem Ahmad