Rupkunwar And Ors vs Prabhudayal Keshawarwani And Ors

Rajendra Chandra Singh Samant, J

This petition under Article 227 of the Constitution of India has been brought seeking indulgence of this Court to quash the orders dated 13-01- 2020,

17-01-2020 and 24-01-2020 passed in Execution Case no.55A/2002 by the Court of Civil Judge Class-I Kasdol, District- Balodabazar.

The petitioners are LRs. of the judgment debtors in the execution case mentioned hereinabove. One application was filed under Section 47 of the

CPC objecting on the maintainability of decree, which was dismissed vide order dated 13-01-2020 and one warrant for possession was issued by the

Court. One report was received unserved on 17-01-2020, in which it was reported that the Revenue Inspector and Patwari made demarcation of the

land on the spot and found that the petitioners are in possession of only 0.01 acre of land in Khasra No.961. Learned Executing Court then passed the

order dated 17-01-2020 that whatever may be the condition the petitioners/judgment debtors be evicted from the land and building in their possession

and the same be delivered to the respondent-decree holder and warrant of possession was issued again. On 24-01-2020 the process were not

returned, therefore, another date was fixed for report on the process, that is, the warrant of possession.

It is submitted by learned counsel for the petitioners that the suit property was Khasra No.961 measuring 0.045 hectares regarding which the

respondent had decree for possession against the petitioners. In the order sheet dated 15-01-2018 learned executing Court has mentioned that

according to the report of bailiff, the Patwari and the R.I. had measured the spot and found that the petitioners are in possession of 0.01 acre of land

and they have also released their possession from the same. The learned executing Court then ordered that as the remaining land of the suit land is not

available on the spot, therefore, the decree has become inexecutable and the execution proceeding was closed. This order was challenged in WP227

No.736 of 2018 which has been disposed off by order dated 14-10-2019, in which this Court allowed the petition and restored the execution case and

directed the executing Court to proceed with the execution case.

It is submitted that consequent to the order of the High Court, the trial Court got the land demarcated. The report was submitted by the Tahsildar,

Kasdol again, according to which, the petitioners were found in possession of only one decimal land of the suit property. The Patwari and the Revenue

Inspector and respondent-decree holder were examined, but nowhere established that the petitioners are in possession of any additional land of

Khasra No.961 apart from one decimal of land which has been reported to be in their possession. Hence, the execution of the decree is inexecutable.

The petition be allowed and the relief be granted to the petitioners.

It is submitted by respondent No.1 in person opposing the submission made by the petitioners' counsel that the petitioners are adopting dilatory

tactics because of which respondent No.1/decree holder is getting harassed. The petitioners have manipulated in the revenue records. The order in

WP227 No.736 of 2018 had been clearly in favour of the respondent and it is this order which has to be taken into consideration and respondent

No.1/decree holder be granted relief of possession. The report on which the petitioners are relying is incorrect report. The Revenue Inspector has

admitted in his statement before the executing court that the demarcation made was not proper. The demarcation is incorrect for the reason that the

measurement has been made from south to north which should have been made from north to south. Hence, the demarcation report is not reliable and

respondent No.1 is entitled for relief of possession according to the decree in his favour. Therefore, the petition be dismissed.

Learned counsel for the petitioners submits in reply that the revenue Inspector has not made any such statement, that the demarcation made was

incorrect. The report of the Tahsildar dated 19-12-2019 is very much clear according to which the decree against the petitioners is inexecutable.

Hence, the objection of the petitioners under Section 47 of the CPC was sustainable. Therefore, it is prayed that the petition be allowed.

Heard learned counsel for the parties and perused the documents.

There is no dispute that respondent No.1 and 2 have decree in their favour for possession of land Khasra No.961 measuing 0.045 hectares. The

executing Court had pursuant to the order of this Court in WP227 No.736 of 2018 for the purpose of clarifying the possession on the spot, directed for

demarcation regarding which the report was submitted on 19-12-2019. It is mentioned in this report that the petitioners are in possession only 1

decimal land in Khasra No.961, however, they are in illegal possession in Khasra No.960/2 in area of 05 decimal on which their house is constructed.

In making total measurement of Khasra No.961 measuring is 0.227 hectares, the report has been submitted as follows:-

. 961 -0.227 . :-

. . 961 0.004 .

.961 0.032 .

. . 961 0.017 . . .

962/2 0.017 . . . 961

..961 0.016 .

 . .961 -0.158 .

On making addition of the land in possession of various persons out of the area 0.227 hectare, the respondent No.1 is in possession of 0.158 hactare +

0.016 hectare, that is, total of 0.174 hectare, there is clear report that on 0.032 + 0.017 hectare that is total 0.049 hectare is in possession of other

persons namely Govind S/o Ramprasad and Setram S/o Phiru Dhobi, therefore, remainder land is only 0.004 hectare which was found in possession of

the petitioners. This is the factual position on the spot where the suit land is situated.

Learned trial Court has examined the Patwari, Revenue Inspector and the decree holder, respondent No.1. These statements were considered in

the order dated 13-01-2020, in which the report of Tahsildar has been disbelieved and again the order has been passed by issuing warrant of

possession.

The fact position which has been presented before the Court in the shape of a report by the revenue officers if found unsatisfactory, in that case

the executing Court had option to direct re-demarcation of the suit property. In this case the learned executing Court in a manner rejected the report

submitted by the Tahsildar and disbelieved the same, but instead of taking the right approach for ordering re-demarcation, the warrant for possession

has been issued. Unless and until there is clear finding that the petitioners are in possession of the suit property as described in the decree, the decree

cannot be executed in a fair manner. Therefore, this petition is allowed and the impugned order dated 13-01-2020 is set aside, the finding of the trial

Court regarding issuance of warrant of possession is set aside. Finding of the executing Court regarding the demarcation report of the Tahsildar is not

interfered with. The learned executing Court is directed to order fresh demarcation of the suit property and after receiving the report of the same

proceed with the execution in accordance with law.

The petition stands disposed off.