Partly allowed

Shankar Banik and 3 Ors. v. Baxi Brothers Ltd. and 2 Ors.

Gauhati HC20 Jul 2022CRP(IO)/58/2020

Case brief

AI extract

What is this about?

High Court under Article 226/227 observed that earlier decree covered specific land area. Directed executing court to proceed with possession recovery strictly within decreed limits of 1 powa 4 jasti 5 pons 5 gondas of land after locating boundaries as previously ordered.

What did the court decide?

Directed executing court to proceed with possession recovery strictly for the decreed area of 1 powa 4 jasti 5 pons 5 gondas after locating boundaries.

Shankar Banik and 3 Ors. Vs Baxi Brothers Ltd. and 2 Ors. — Property and Title | Gauhati HC (2022)

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GAHC010043002020

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

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Case No. : CRP(IO)/58/2020

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SHANKAR BANIK AND 3 ORS. S/O- LT. NANI GOPAL BANIK, R/O- MADAN MOHAN ROAD, P.O. KARIMGANJ- 788710, DIST.- KARIMGANJ, ASSAM.

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2: RAMANUJ BANIK S/O- LT. NANI GOPAL BANIK R/O- MADAN MOHAN ROAD P.O. KARIMGANJ- 788710 DIST.- KARIMGANJ ASSAM.

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3: SMTI. SUCHETA BANIK W/O- LT. SATYA GOPAL BANIK 47 JHOWATLA ROAD BECK BAGAN BALLYGONGE KOLKATA- 700017 WEST BENGAL.

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4: SMTI. NIBEDITA BANIK W/O- SRI SHAMBHU NATH BANIK OLD STATION ROAD P.O. KARIMGANJ- 788711 DIST.- KARIMGANJ ASSAM

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VERSUS

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BAXI BROTHERS LTD. AND 2 ORS. EAST BAZAR, P.O. KARIMGANJ- 788711, DIST.- KARIMGANJ, ASSAM.

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2:SMTI. SOVA DEVI BAXI W/O- SURENDRA BAXI

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EAST BAZAR P.O. KARIMGANJ- 788711 DIST.- KARIMGANJ ASSAM.

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3:SMTI. SHANTA DEVI BAXI W/O- SRI HARILAL BAXI EAST BAZAR P.O. KARIMGANJ- 788711 DIST.- KARIMGANJ ASSAM

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Advocate for the Petitioner : MR. N DHAR

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Advocate for the Respondent : MR G N SAHEWALLA

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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Date : 20.07.2022

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Heard Mr. N. Dhar, the learned counsel appearing on behalf of the Petitioners and Mr. G.N.Sahewalla, the learned Senior Counsel assisted by Ms. A. Bhattacharyya for the Respondents.

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This is an application under Article 227 of the Constitution challenging the orders dated 14/02/2016 passed in Title Execution Case No.2/2016 as well as in Misc. (J)Case No.164/2016.

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At this stage, before going into the impugned orders, this Court finds it appropriate to refer to the judgment passed by this Court on 17/5/2012 in RSA No.8/2001. Paragraph Nos. 15 to 17 of the said judgment is quoted herein below :

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“15. Section 107 of the Transfer of Property Act provides how the lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made. It provides that such lease can be made by a registered instrument. A property can be leased out only by the lessor. The lessee by executing a document cannot create any right over a property belonging to some other persons, namely, the lessor. In the instant case, as noticed above, Exhibits 1, 2 and 3

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are not executed by the lessor but by the lessee and as such the plaintiff No. 1 who claims to have stepped into the shoes of her husband, in whose favour according to the plaintiffs the lease was created vide Ext-3 dated 25.02.1948, cannot claim that she has the tenancy right over the land in question. Both the Courts below did not notice the said aspect of the matter. Hence the decree passed by the Courts below declaring the plaintiff No.1’s tenancy right in respect of the suit property cannot be sustained and therefore, is set aside.

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This leads to the consideration of the second substantial question of law. The plaintiffs could prove the transfer of the landholder’s right in favour of the plaintiff Nos. 2 to 4 by virtue of the registered deeds of sale being Exts-8 to 12. The defendants claim that they are the occupancy tenant in respect of the Schedule-1 land, by virtue of the transfer of the lease hold right in favour of their predecessors in interest vide Ext.-A deed dated 07.06.1941 and in respect of which the khatians being Exts. E, D and H were subsequently issued in the year 1968. No evidence, however could be laid by the defendants to demonstrate that the land mentioned in Ext. –A as well as Exts.C, D and H is the same land as described in Schedule-1 to the plaint. Both the Courts below have recorded the concurrent finding of fact that the land in Exts.-A, C, D and H is not the land described in Schedule-1 to the plaint. Such concurrent finding of fact cannot be disturbed by the Second Appellate Court, no perversity in recording such finding having been demonstrated.

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In view of the aforesaid discussion, both the Courts below have rightly decreed the suit of the plaintiff Nos. 2 to 4 declaring landholder’s right in respect of the part of the Schedule-1 land i.e. 1 powa 4 justi 5 gandas of land. The decree for recovery of khas possession in respect of the said land has also rightly been passed. Hence the judgments and decrees passed by the Courts below in that regard is affirmed. The judgments and decrees passed by the Courts below declaring the plaintiff No. 1’s tenancy right over the Schedule-1 land apart from the decree passed for recovery of khas possession in respect of the land other than the land measuring 1 powa 4 justi 5 gandas is set aside.”

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From a perusal of the above quoted paragraphs of the judgment would show that this Court had held that the decree passed by the Court below declaring the Plaintiff No. 1’s tenancy right in respect to the suit property cannot be sustained. Further taking into consideration the registered deeds of sale exhibited as Exhibits 8 to 12, this Court held that the Plaintiff Nos. 2 to 4 had acquired the landholders right in respect to 1 powa 4 jasti 5 pons 5 gondas of land which is a part of the Schedule-1 land from the original owner. It was also observed by this Court that the Defendants/the Judgment Debtors’ claim was of occupancy tenant in respect to Schedule -1 land by virtue of transfer of the lease hold right in their favour by the predecessors-in-interest vide Exhibit A dated 7/6/1941 and in respect to which the

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Khatians being Exhibits C, D and H were subsequently issued in the year 1968. This Court had categorically observed that no evidence has been laid by the Defendants to demonstrate that the land mentioned in Exhibit–A as well as in Exhibits C, D and H is the same land as described in Schedule-1 to the plaint. On the basis thereof, this Court declared the right, title and interest of the Plaintiff Nos. 2 to 4 in respect to the part of the Schedule-1 land i.e. 1 powa 4 jasti 5 pons 5 gondas of land and also held that the decree for recovery of khas possession of the said land had rightly been passed by the Courts below. Further to that, this Court had clarified that the judgment and decree passed by the Courts below declaring the Plaintiff No. 1’s tenancy right over the Schedule-1 land was set aside. It was further clarified that the decree passed for recovery of khas possession in respect to the land measuring 1 powa 4 jasti 5 pons and 5 gondas was rightly passed by the Courts below.

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On the basis of the said judgment and decree passed by this Court, an Execution Application being Title Execution Case No.2/2016 was filed wherein the decree holders sought for recovery of possession of Schedule-2 land which is a part of Schedule-1 land. While the said execution proceedings was pending, an application was filed under Section 47 of the Code of Civil Procedure, 1908 (in short “the Code”) by the decree holders seeking a dismissal of the execution case on the grounds and reasons stated therein. In pursuance to that, the said application under Section 47 of the Code was registered and numbered as Misc. Case (J) No. 164/2016. Written objections were filed to the said application under Section 47 of the Code by the decree holders.

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The Executing Court vide an order dated 14/2/2020 passed in Misc. Case (J) No.164/2016 rejected the said application under Section 47 of the CPC filed by the Judgment Debtors. On the same day, vide another order dated 14/2/2020 passed in Title Ex. Case No. 2/2016 a writ was issued for possession. It may be relevant herein to mention that the perusal of the order dated 14/2/2020 in Title Ex. Case No. 2/2016 would show that the Executing Court categorically observed that the measurement of

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the Schedule-2 land is given in feet with specific boundaries thereof and as such the Nazir was directed to first locate the Schedule-2 land with its boundaries and then measuring out in terms of the measurement so given in the execution petition or the decree before eviction of the Judgment Debtors thereof and giving possession thereof to the decree holders. It is against the orders dated 14/2/2020 passed in Misc. (J) Case No. 164/2016 as well as Title Execution Case No. 2/2016 the instant proceedings has been initiated under Article 227 of the Constitution.

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I have heard the learned counsel for the parties and also perused the materials on record.

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The above quoted portion of the judgment of this Court categorically shows that the decree holders’ rights have been declared by this Court in respect to a part of a Schedule-1 land i.e. 1 powa 4 jasti 5 pons 5 gondas of land and a decree for recovery of khas possession was also passed in respect to the said land.

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A perusal of the plaint categorically shows that the Schedule-2 land is situated in the southern portion of the Schedule-1 land. There are no material on record to show that any of the Courts below including this Court have held that the Schedule-2 land is not a part of the Schedule-1 land.

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Be that as it may, the decree passed by this Court has been specific to 1 powa 4 jasti 5 pons 5 gondas of land which is a part of the Schedule-1 land. Accordingly, this Court therefore directs the Executing Court to go ahead with the execution proceedings in Title Ex. Case No. 2/2016 strictly in terms to the decree passed by this Court i.e. in respect of 1 powa 4 jasti 5 pons 5 gondas which is a part of the Schedule1 land in terms with the order dated 14/2/2020 passed in Title Ex. Case No.2/2016 and locating the boundary as directed in the order dated 14/2/2020.

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It is made clear that if any excess land beyond the land which has been decreed by this Court is handed over, the Petitioners herein shall be at liberty to file appropriate application after the possession is delivered to the decree holders.

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The interim order passed on 30/6/2022 stands vacated. The parties are directed to appear before the Court below on 17/8/2022.

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The learned counsel for the Petitioners submits that the next date is on 23/9/2022. Taking into account that this is a long pending dispute, the Executing Court shall proceed with the execution proceedings by preponing the matter to 17/8/2022 on the basis of the instant order and dispose of the same in accordance with the observations made hereinabove.

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With the above observations and directions, the petition stands disposed off.

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Comparing Assistant

Shankar Banik and 3 Ors. v. Baxi Brothers Ltd. and 2 Ors.

Case brief

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Shankar Banik and 3 Ors. v. Baxi Brothers Ltd. and 2 Ors.

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