Dismissed

Dwijen Nath and 8 Ors. v. Debeswar Nath

Gauhati HC14 Nov 2019CRP/341/2012

Case brief

AI extract

What is this about?

The High Court of Gauhati reviewed a revision petition challenging the dismissal of an application under Order XXI Rule 101 CPC seeking measurement of land. The court held that without specific pleading on entitlement and actual possession, judgment debtors cannot claim measurement of decreetal land, even if decree holder possesses excess land. The revision was dismissed.

What did the court decide?

Revision petition dismissed without cost; interim order vacated.

Dwijen Nath and 8 Ors. Vs Debeswar Nath — Execution and Attachment | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010182832012

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 341/2012

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1:DWIJEN NATH and 8 ORS

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2: SUNIL NATH

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3: MUNINDRA NATH ALL S/O- SRI BHOGMAN NATH.

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4: SUBODH NATH

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5: KHARGADHAR NATH BOTH ARE S/O- LT. GOKUL NATH.

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6: INDRA MOHAN NATH

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7: ABHON NATH BOTH ARE S/O- SRI LAL MOHAN NATH.

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8: MATHURA NATH S/O- LT. HARI NATH.

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9: RAJEN KUMAR S/O- LT. BANGSHI KUMAR ALL ARE R/O VILL.- RAJAPUKHURI MOUZA- RAMPUR P.S.- PALASHBARI DIST.- KAMRUP ASSAM

VERSUS

1:DEBESWAR NATH

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S/O- LT. SIB CHARAN NATH, R/O VILL.- RAJAPUKHURI, MOUZA- RAMPUR, P.S.- PALASHBARI, DIST.- KAMRUP, ASSAM.

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Advocate for the Petitioner : MR.S P ROY Advocate for the Respondent : MR.P K DAS

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:: BEFORE ::

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HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA

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14.11.2019

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Heard Mr. SP Roy, learned counsel for the petitioners and Mr. BK Sarma, learned counsel for the respondent.

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Order dated 19.05.2012 passed in Misc. (J) Case No. 413/2007 in Execution Case No. 47/2006 by the court of learned Munsiff No. 1, Kamrup (M) at Guwahati is under challenge in this revision petition. A decree in respect of recovery of 15 L of land along with the relief of declaration of right, title and interest and permanent injunction was passed in favour of the decree holder/ respondent wherein the present petitioners were the judgment debtors. The said decree was passed in Title Suit No. 137/2001 by the court of learned Munsiff No. 1, Kamrup (M) at Guwahati. On the basis of the writ issued by the Executing court the concerned Lat Mandal submitted a report dated 25.04.2007 stating that land measuring 15 L of NK Patta No. 1 under Dag No. 513 from the western side was measured and shown to the Nazir and thereafter the Nazir delivered possession of the said land measuring 15 L to the decree holder and submitted a report dated 25.04.2007. The decree was accordingly satisfied. In the month of July, 2007 the petitioners filed an application under Order XXI Rule 101 of the CPC seeking for delivery of the land described in the schedule of the said petition.

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The factual matrix pleaded in the said petition was that the Civil Nazir while executing decree on 25.04.2007 delivered excess land measuring 15 L being part of Dag No. 513 to the decree holder as Lat Mandal on 25.04.2007 did not measure the entire land of Dag No. 513 while demarcating the land of the decree holder measuring 3 K 11 Ls which is the claim of the decree holder. The said 3K 11Ls of land includes the 15 Ls of land decreed for recovery of possession. But the Lat Mandal measured only 15 Ls of land from the eastern boundary of

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the land measuring 3K 11Ls following which the decree holder got excess land which comes to 4K 9Ls. The said excess 15 Ls of land belonged to the judgment debtors/petitioners. In the said proceeding evidence of the decree holder, the Lat Mandal and the Civil Nazir were recorded and the petition is fixed for argument.

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The petitioners filed Petition No. 5067/2011 praying for measuring the suit land and the entire land covered by Dag No. 513. The reason for filing the said petition was due to the reply given by the decree holder in his cross examination that he does not have any objection if his land is measured again. The learned court below vide the impugned order dismissed the said petition by holding as follows:-

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“ The petitioner/ opposite party has failed to show any reason as to why the measurement of land is required. Further the plaintiff may be in possession of land measuring more than the decreetal land, but the same would not mean that the defendant was the owner or possessor of the said excess land.

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It is for the petitioner/judgment debtor to show that the possession of the land in excess of the decreetal land was delivered and that the said excess land was in possession of the petitioner/ judgment, but the said fact cannot be ascertained by measurement of land in actual possession of the opposite party/decree holder.

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In view of the above the petition is rejected.

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Fixing 15/6/2012 for hearing/argument.”

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Mr. Roy submits that the court below could not have passed the judgment and decree declaring the right, title and interest of the decree holder/ respondent inasmuch as the said land though initially was covered under NK Patta No. 1 but subsequently the Government took back as the ceiling surplus land. So the decree is a nullity. Referring to the cross examination of the decree holder in the proceeding under Order XXI Rule 101 of the CPC Mr. Roy submits that in his cross examination he admitted that he is not entitled beyond the land measuring 3K 11Ls which is under his possession. For the said reason the court below ought to have allowed the said application seeking for measurement of the decreetal land.

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Mr. Sarma, on the other hand, countered the submission of Mr. Roy on the ground that even if there is any excess land under the possession of the decree holder/respondent, the

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petitioners cannot claim that the said excess land belonged to them. They not even pleaded in the petition as to what extent of area of land they are entitled. Until and unless the petitioners establish that they are supposed to possess a definite area and the said 15L forms a part thereof, there is no point in measuring the decreetal land or the land under possession of the decree holder. It is further submitted that the petitioners cannot invoke the jurisdiction under Order XXI Rule 99/101 of the CPC inasmuch as they failed to establish their independent right other than the one what they pleaded in T.S. No. 137/2001 wherein decree already executed was passed against the petitioners/judgment debtors. Accordingly, the revision petition is not at all maintainable.

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I have given due consideration to the submissions made by the learned counsel appearing for the parties. A decree was executed and as per the decree 15Ls of land was recovered from the possession of the petitioners/judgment debtors and delivered possession of the said decreetal land to the decree holder/ respondent. The said execution process was carried out in presence of the petitioners/ judgment debtors if the report of the Civil Nazir is taken into consideration annexed to this revision petition. The petitioners without pleading in the said petition under Order XXI Rule 101 of the CPC as to the actual land under the possession and the manner in which they are entitled to their land purportedly out of which 15 Ls of land is under the possession of the decree holder cannot claim for measuring the decreetal land. Moreover, keeping in view the factual matrix even if there is any excess land under possession of the decree holder the court cannot deliver possession of the said excess land to the petitioners without any such pleading in the application. It is the burden on the petitioners to show as to what extent of land ought to have been under their possession and then only the court can invoke the jurisdiction for measuring the land of the petitioners. Without the said exercise and any pleading in the said application under Order XXI Rule 101 of the CPC which the learned court below has rightly observed, in my considered view, I do not find any merit in this revision petition and the same is dismissed without cost.

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Interim order, if any, passed earlier stands vacated.

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JUDGE

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Comparing Assistant

Dwijen Nath and 8 Ors. v. Debeswar Nath

Case brief

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Dwijen Nath and 8 Ors. v. Debeswar Nath

Case brief

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