Mohini Palul Alias Mohini Kumar Paul Vs Satya Narayan Mishra

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2025:JHHC:11003

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 280 of 2023

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Mohini Palul @ Mohini Kumar Paul, aged about 71 years, Son of Late Suresh Chandra Paul, Resident of-Chhota Gamharia, P.O. & P.S. Gamharia, District-Seraikella-Kharsawan.

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Chaitali Paul, aged about 38 years, D/O Mohini Paul @ Mohini Kumar Paul and W/o Rajendra Kumar Chouhan, Resident of House No. 6, street, P.O. & P.S. Eisenhowerdaan City Delft, Post Code- 2625, GJ, Netharland.

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Puja Paul, aged about 35 years, D/o Mohini Paul @ Mohini Kumar Paul, W/O: Nilkant Das, Resident of – Chhota Gamharia, P.O. & P.S. Gamharia, District-Seraikella-Kharsawan.

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Ruchika Paul, aged about 32 years, D/o Mohini Paul @ Mohini Kumar Paul, W/O Debasish Maity, Resident of- Chhota Gamharia, P.O. & P.S. Gamharia, District-Seraikella-Kharsawan.

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… … Defendants/Appellants/Appellants Versus

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Satya Narayan Mishra, son of Sri Purna Chandra Mishra, R/o Chhota Gamharia, P.O. & P.S. Gamharia, District- SeraikellaKharsawan.

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… … Plaintiff/Respondent/Respondent

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Mr. Rahul Kr. Gupta, Advocate For the Respondent : Mr. Suraj Kumar, Advocate ---

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16 /08.04.2025

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1. Heard the learned counsel appearing on behalf of the parties. This appeal has been filed against judgment and decree dated 13.10.2023 (decree signed on 19.10.2023) by learned District JudgeII, Seraikella-Kharsawan in Civil Appeal No. 09 of 2022 whereby the appeal has been dismissed. The trial court judgment is dated 18^th July, 2022 (decree signed on 27.07.2022) passed by the learned Civil Judge (Sr. Division-II) Seraikella in Title Suit No. 14 of 2015 in terms of which the suit was decreed on contest and consequently the defendants are the appellants before this Court.

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2. The appeal was admitted by this Court vide order dated 01.10.2024 after formulating the following substantial question of law:-

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i. Whether in view of the specific pleading of the defendant in the written statement that the description of the suit land is vague without any boundary, trace map and other description, even though without any doubt, the same is a part plot and in absence of description sufficient to identify the suit plot, no decree as sought for can be passed, and, therefore, both the courts below have committed perversity by failing to consider the same and not framing any issue or point for determination respectively; in respect of the same?

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The Case of the plaintiff.

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3. The case of the plaintiff in brief is that the plaintiff had got Raiyati plots situated at Mouza Chhota Gamharia P.O./P.S.Gamharia, District-Seraikella-Kharswan within Khata No. 86, Plot No. 645/A, Don-III, area 2 ½ decimals [Schedule-A of the plaint]. The plaintiff claimed that he was the bona fide owner of the land in dispute purchased by his father by way of the registered Sale Deed 2290 dated 18.09.1962 and also mutated in the name of the plaintiff’s father and after his father, plaintiff was possessing the suit land paying the rent to the government regularly. The father of the plaintiff sold a portion of land Area 0.05 decimals Bounded on North: Simana Bara Gamharia (Samsan Ghat), South-Niz, East-Parti Khas, West-Niz to defendant No. 1 Ganga Rani Paul vide registered sale deed No. 3549 dated 16.12.1987 followed by delivery of possession of an area of 0.05 decimals. When the plaintiff’s father was not able to look after the affairs and the land in dispute was required to be demarcated and the plaintiff came to know that the demarcation was already done by the Anchal Amin Gamharia on 24.12.14. The plaintiff obtained the certified copy and came to know that an area of 0.02 ½ decimals of land has been encroached by the defendant No. 1 and 2 over which

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they have constructed a building for commercial purpose. It was asserted by the plaintiff that on 24.12.14 the plaintiff along with his father has requested the defendants for removal of the constructed building standing on the vacate side of the plaintiff’s land of 0.02 ½ decimals. The defendants refused to vacate the same and claimed it to be his own separately purchased area. Subsequently, the plaintiff gave a legal notice on 24.02.15 to which the defendant No. 1 and 2 vide reply dated 03.03.15 accepted that they had purchased land from the plaintiff’s father measuring an area 0.05 decimals only. The suit was brought by the plaintiff for demolition of illegal and unauthorized construction made by the defendants above No. 1 and 2 over the schedule property of the plaintiff and permanent injunction restraining the defendants from interfering with the plaintiff’s use of the land in dispute.

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The Case of the defendants.

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4. The defendants stated that the suit was not maintainable having no cause of action and the suit was also barred by limitation, Specific Relief Act, waiver and acquiescence. It was contended that the description of the suit land was totally vague, without any boundary, trace map and other description. Denying the entire contents of the plaint the defendants contended that the plaintiff was not the bona-fide owner of the schedule land by way of registered sale deed 2290 dated 18.09.1962.

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5. It was the case of the defendants that in fact, in 1961 revisional survey plot No. 645 of R.S. Khata No. 86, Chhota Gamharia, consisting of an area of 0.25 decimals which stood recorded in the name of Baikunth Nath Kabi who sold an area of 0.20 decimal in the said plot to Sri Purnachandra Mishra [the plaintiff’s father] by Regd. Sale deed No. 2270 dated 16.09.62 and delivered possession. Further Sri Purnachandra Mishra had sold 5 decimals of land in R.S. Plot No. 645/A, of Khata No. 86, Mouza Chhota Gamharia in favour of the

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defendant No. 2 vide Regd. Sale deed No. 3549 dated 16.12.87 and delivered possession. The aforesaid Purnachandra Mishra and his seller Baikuntha Nath Kabi on the same day, that is 16.12.87, had also transferred an area of 0.02 decimals in potion of the same plot and khata on receipt of Sale price in favour of the defendant No. 2 and had delivered possession and had executed an agreement admitting the defendant’s title, interest and possession over the entire area of 0.07 decimals and on said 7 decimals (5+2) the defendants have constructed residential house with Agan well within the knowledge of the plaintiff and his father raising no objection or interference and the possession of the defendant was never objected since 16.12.87 and the suit was brought after a gap of 28 years which was not maintainable. It was also asserted that when the plaintiff and his father got knowledge of transfer of the land on the basis of the executed documents in favour of the defendants, the plaintiff and his father never objected upon it and the defendants were possessing the land since 16.12.87 and the land in dispute never remained vacate. The plaintiff has got no cause of action for the suit in February 2015 or any point of time and the plaintiff is not entitled for the relief as prayed for and the suit was liable to be dismissed.

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Issue framed by the trial court.

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6. The learned trial court has framed altogether 11 points for determination which is follows: -

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“1. Is the suit maintainable in its present form?

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2. Has the plaintiff any right to sue?

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3. Is there any cause of action?

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4. Is the suit barred by limitation, specific Relief Act and under the provision of estoppel, waiver and acquiescence?

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5. Whether the valuation of the suit is improper too low and beyond the jurisdiction of this court?

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6. Whether the defendant is in illegal and unahthorized occupation of the suit land?

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7. Whether the plaintiff is owner and bona-fide Raiyat of

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the suit land?

8. Is the plaintiff entitled for reliefs claimed?

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9. Whether the defendants have encroached illegally in the suit land as claimed in the suit?

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10. Whether the plaintiff is entitled to the suit land to be vacated by restraining the defendants from entering into the plaintiff's use of land?

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11. Whether the plaintiff was given 0.5 decimals of land to the defendants by way of Regd. Sale deed No. 3549 dated 16.12.1987?

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7. Altogether seven witnesses have been examined on behalf of

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the plaintiff and some documentary evidence produced by the side of the plaintiff which is as follows:

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Oral evidences on behalf of plaintiff

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Satyanarayan Mishra	P.W.-1
Ashok Kumar Acharaya	P.W.-2
Dilip Kumar Modak	P.W.-3
Satrughan Prasad	P.W.-4
Prajapati Mahato	P.W.-5
Chaitan Singh Munda	P.W.-6
Satyakinkar Acharaya	P.W.-7

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Documentary evidences on behalf of plaintiff

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Rent receipts JH-13/A 041326, dated 27.07.18	Ext-1
Rent receipts JH-13A-041327 dated 27.07.15	Ext-1/1
Sale Deed No. 3549 dated 16.12.1987	Ext. 2
The certified copy of the report of	Ext-3
Karmachari that is produced by the plaintiff is the demarcation report
Sale deed No. 2270 dated 19.06.1962	Ext-4
The sale deed No. 260 dated 08.02.2014	Ext 5
The certified copy of correction slip	^Ext-6

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dated 02.04.14 related to mutation case No. 1577/13-14 The certified copy of the General Ext-7 Power of Attorney

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8. Altogether four witnesses have been examined on behalf of the defendants and some documentary evidences produced by the side of the defendants which is as follows:-

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Oral evidences on behalf of defendants

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Mohini Paul	D.W.1
Debbrath Prasad	D.W.2
Pramanand Singh	D.W.3
Gangarani Paul	D.W.4

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Documentary evidences on behalf of defendants

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The certified copy of the sale	Ext-A
deed No. 2270/1962, dated
18.09.1962.
Sale Deed No. 3549 dated	Ext-B
16.12.1987
The certified copy of the mutation	Ext-C
correction slip of Mutation Case
No. 127/192-93
The agreement was also recorded	Ext-D
on dated 16.07.1987

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Findings of the Trial Court

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9. The learned trial court has considered the issue No. 6, 7, 8, 9, 10 and 11 together and gave its findings in paragraph 18, 19 and 20 of its judgment which are as follows: -

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“18. Having regards to the entire materials brought on the record by the plaintiff’s and the defendants the court finds that the suit is brought for the decree of the recovery of the possession by getting the vacate possession over the suit land that is an area of 2 ½ decimals of the land that is been found to be in possession of the defendant's which is also been

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admitted by the defendant and at the same the claim of the defendant is only on the basis of agreement was also recorded on dated 16.07.1987 (Ext-D) entered into the name of the Defendant No 2 by the father of the plaintiff’s Purnachandra Mishra and Baikunth Nath Kabi along with the permanent injunction. In the case in hand the title of the plaintiff and his ancestors Purnachandra Mishra originally as the owner is not in dispute rather the same is been admitted that the Purnachandra Mishra had obtained title over the entire 20 decimals of the land by the sale from the Baikunth Nath Kabi and out of that 5 decimals of the land had been sold to the 5 decimals of land by registered sale deed 3549 dated 16.12.1987 of the land plot No. 645/A (ExtB) and when the Baikunth Nath Kabi had already sold his land to the Purnachandra Mishra, and further the plaintiff during the course of evidence had adduced the original sale deed No. 2270 dated 19.06.1962 (Ext-4) and (Ext-A) present deed is the bilateral document relying upon both the parties which is not in dispute is also filed on behalf of the defendant as per the contents of the sale deed, the same has been executed by Baikunthnath Kabi, son of late Binayak Kabi in favour of Purnachandra Mishra of the land situated at Chhota Gamharia P.S.- Adityapur, Thana No. 67, Khata No. 18, recent khata no. 86, Plot No. 385, recent Plot no. 645/Andar, 20 decimals of land, with specific boundary, in north, Bara Gamharia, South Radha Modak, the nature of the land Gora-III, that has been obtained by the seller through registered sale deed no. 930, dated 30.11.1956, from Narendra Mahato and possessing the land on the basis of the purchase and the area of 20 decimals has been sold by the sale deed no. 2270 in favour of Purnachandra Mishra, the father of the plaintiff along with the original sale deed no. 260 dated 08.02.14 which is executed by Sibaram Kabi, Umapado Kabi, both sons of Baikunthnath Kabi alias Baikunth Thakur, in favour of Satyanarayan Mishra son of Sri Purnachandra Mishra as per the schedule of the land described at schedule of the sale deed situated at Mouza Chhota Gamharia, P.S.- Gamharia, Thana no. 67, under khata No. 86, under Plot No. 645, has been recorded in the name of late Baikunth Thakur alias Baikunth Nath Kabi, father of sellers during the revision survey settlement operation of 1961 and whereas aforesaid recorded tenant

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namely Baikunth Thakur alias Baikunth Nath Kabi died leaving behind his two sons namely (1) Siba Ram Kabi and (2) Uma Pada Kabi i.e. seller No. 1 & 2 as his legal heirs and successors and the seller being the bonafide owner of the land sold land obtained from his father had sold at the consideration amount of six lakhs sixty four thousand as mentioned in the sale deed being an urgent need of money for that personal needs with the joint desire of both the sellers and area of 5 decimals pertaining to khata no. 86, plot No. 645/A, Gora-III, had acquired Title over the remained 5 decimals of the land and the defendant’s had got right title and interest upon his purchased area of the 5 decimals only and since the title is not in dispute to that extent.

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19. In the present proven fact of the case the court relying upon the authority of the honorable Apex court as held in its Judgment T.V. Ramakrishna Reddy Vs. M. Mallappa & Anr.[i], the Supreme Court has reiterated that suit for permanent injunction simpliciter shall not be maintainable if the title of the suit property is in dispute or under a cloud as reported in T.V. Ramakrishna Reddy v. M. Mallappa & Anr, (2021) LL SC 423, Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. In the case of Anathula Sudhakar vs P.Buchi Reddy (Dead) By Lrs & Ors; Appeal (civil) 6191 of 2001; decided on 25 March, 2008, The Hon'ble Supreme Court has held as follows:" para (11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of

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possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. In Para 13 In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally." It has also been held that in the above authority that if the plaintiff is not in possession of the suit property or seeking possession from a trespasser then suit for possession is the correct remedy and simpliciter injunction shall not be maintainable. In the present case, plaintiff has failed to prove that she was in possession of the suit property at the time of filing of the present suit. There are contradictions in her version as stated in the plaint and in the evidence.

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20. The Hon'ble Apex Court in the above referred cases had clarified that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient relying upon the above authority in light of the fact and circumstance of the case the court had incidentally looked into the document of the Title and finding that the title is not

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in dispute the , suit is in proper format and the relief as stated above can effectively be decided in the present form as the relief for the recovery of the possession is also sought with the decree of the permanent injunction and coming back to the question of the possession with respect to possession of the defendant beside that on the basis of the agreement is not a valid mode of the transfer of the land as prescribed by the law of transfer of the immovable property guided by the Transfer of the property required that any mode of transfer of immovable property valuation more that Rs. 100/- is required to be essentially registered. Any such deed which is not registered does not contain any legal validity and the agreement in question that it will recorded between Purnachandra Mishra and Baikunt Nath Kabi with Gangarani Paul with respect to the land in dispute showing that the seller had got 2 decimals of land adjacent to the sold plot 5 decimals and admitted it to be the sale deed of the 7 decimals will not amount to defect of sale deed and thus possession of the defendants on the basis of the agreement which is apparent to be within the possession of the defendants will not amount to valid possession. However that long possession may be will not amount to accrue any title on the basis of the possession itself and the intention of the seller the executant of the agreement is clear that they had sold 7 decimals of land besides 5 decimals of land and sale deed No.3549 dated 16.12.1987(Ext-B) has been executed of 5 decimals only which also contains the consideration amount of Rs. 30,000/- it will not implied including the 2 decimals of land for which the agreement has been prepared. Since the same has not been registered as a sale deed even on the agreement only no right title and interest automatically passes to the defendant No. 2 Smt. Gangarani Paul but only the possession has been acquired and this will not amount to adverse possession as the intention of the possession of land is hostile to the title of the true owner of the suit land Purnachandra Mishra does not arise and the possession of the defendants amounts to be status of the trespassers only and however long be the possession it will not amount to accrue title on the basis of the possession and the title originally remains with Purnachandra Mishra and after his death all his legal heirs including the plaintiffs and since the possession with the defendants and the title of the

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plaintiff upon the suit land is not been disputed only the defendants claim is that he has acquired the title over the rest of the 2 decimals of the land including the 1/2 decimal which the defendants had found to be in possession and the defendants has not acquired any valid right, title and interest on the basis of the agreement itself. This contains of 2 decimals only and besides that the defendant was also found upon more than 2 decimals of land and possession constructed a house and shops on the entire purchased land along with 2 ½ decimals of land upon which the court arrived at the conclusion that it was the land that does not belong to the defendant and it has been encroached by the defendant. The plaintiff is entitled for the relief as sought for the in the suit for recovery of the vacate possession over an area of 2 ½ decimals of land which is in possession of the defendant without having valid authority and the construction raised upon it is also not authorized and it is the land that has been encroached by the defendant illegally on the basis of the agreement over 2 decimals and further over 1/2 decimals upon which the defendant had not acquired any right and are unauthorized occupant over the suit land along with an order of injunction for restraining the defendant from interfering with the plaintiffs use of land in dispute. Accordingly, the issues No. 6, 7, 8, 9, 10 and 11 are decided in affirmative and in favour of the plaintiff and against the defendants.

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10. The learned trial court has considered issue No. 5 separately and has given its finding in paragraph 21 of its judgment which is as follows: -

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“21. Issue No. 5:- The main fact for adjudication before the court is that whether the valuation in the suit is improper and beyond the jurisdiction of the court?

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For adjudicating of the present issue and on perusal of the entire materials available on the case record including the plaint and the written statement, initially, the case has been filed before the court of Civil Judge (Jr. Division), subsequently, the case record has been transferred to this court as per Sriestedar report suit valuation as Rs. 50,000/for demolishing of illegal and unauthorized construction made by the defendants and permanent injunction suit has been valued of Rs. 500/-. The plaintiff has also paid

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advelorum court fee of Rs. 3720/- along with that injunction court fee chargeable Rs. 100/- with total court feed of Rs. 3810 is already been filed by the plaintiff. The suit has not been improperly valued and the proper valuation of the suit is already been filed by the plaintiff and the court has got the jurisdiction to try this case and well within the pecuniary jurisdiction of the court. Hence, the court arrived at the conclusion that the suit is properly valued and the court has got the jurisdiction to try this case. Accordingly, the present issue is decided in affirmative in favour of the plaintiff and against the defendants.”

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11. The learned trial court has considered the issue Nos. 1, 2, 3 & 4 and decided in favour of the plaintiff and the ultimate findings of the learned trial court is from paragraph 23 onwards which are quoted as under:-

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23. Considering the above facts and circumstances of this case and in light of the above discussions arrived therein while adjudicating the main issues and other issues as discussed above issues No. 6, 7, 8, 9, 10 and 11, the court finds that the plaintiff has got valid cause of action for the suit having right to sue the defendants as the defendants are found to be encroached and illegally occupant of Schedule land that is In the District of Seraikella Kharswan, Thana Gamharia, bearing Khata No. 86, Plot No. 645/A, Kisim Don-III, Area 0.02½ decimals Since the possession of the defendant over 2 ½ decimals is not in dispute hence, the defendant's plea that the schedule of the land is not specified the boundary could not be sufficient to decline the relief as sought by the plaintiff as on finding that the plaintiff along with all the legal heirs of Purnachandra Mishra is the bonafide owner of the suit land which is ancillary been came while adjudicating of the main issues that the suit land originally belongs to Purnachandra Mishra who had acquired an area of 20 decimals on the basis of the registered sale deed No. 2270 (Ext-4) originally belongs to Baikunth Nath Thakur and after that out of which 5 decimals of land has been sold to the defendant No. 2 by the registered sale deed No. 3549(Ext-B) an area of 5 decimals. Admittedly, the rest 20 decimals of land remained in possession of Punachandra Mishra father of the plaintiff and the plaintiff

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is also one of the owner of the suit land and this is the suit for recovery of the possession only without any declaration of right, title and interest as the title does not remain in dispute. The defendant having possession over more than sold 5 decimals of land to the defendant by way of registered sale deed No. 3549 dated 16.12.1987 the plaintiff is entitled for the vacate possession of the encroachment land 1/2 decimals along with the 2 decimals of the land upon which the defendants are found to be in possession who had not acquired any right, title and interest on the basis of the agreement dated 16.12.1987 which is not the valid document of transfer of land the suit and by which the defendants had not acquired valid possession upon the rest of the land except the purchased land of an area of the 5 decimals only and not upon the suit land and the plaintiff had plaintiff along with the original sale deed no. 260 dated 08.02.14(Ext-5) which is executed by Sibaram Kabi, Umapado Kabi, both sons of Baikunthnath Kabi alias Baikunth Thakur, in favour of Satyanarayan Mishra son of Sri Purnachandra Mishra as per the schedule of the land described at schedule of the sale deed situated at Mouza Chhota Gamharia, P.S.- Gamharia, Thana no. 67, under khata No. 86, under Plot No. 645, has been recorded in the name of late Baikunth Thakur alias Baikunth Nath Kabi, father of sellers during the revision survey settlement operation of 1961 and whereas aforesaid recorded tenant namely Baikunth Thakur alias Baikunth Nath Kabi died leaving behind his two sons namely (1) Siba Ram Kabi and (2) Uma Pada Kabi i.e. seller No. 1 & 2 as his legal heirs and successors and the seller being the bonafide owner of the land sold land obtained from his father had sold at the consideration amount of six lakhs sixty four thousand as mentioned in the sale deed being an urgent need of money for that personal needs with the joint desire of both the sellers and area of 5 decimals pertaining to khata no. 86, plot No. 645/A, Gora-III, had acquired Title over the remained 5 decimals of the land , hence the court arrive at the conclusion the court had arrived at the conclusion that the suit as brought by the plaintiff is maintainable in its present form. Accordingly, the issues No. 1, 2, 3 and 4 are decided in affirmative in favour of the plaintiff and against the defendants.

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24. In light of the forgoing discussion upon the adjudication of the issues as framed in the suit and as per the above discussions upon the main issues in the suit that is issues No. 5, 6, 7, 8, 9, 10 and 11 along with other issues the court had arrived at the conclusion that the suit is brought by the plaintiff is maintainable in its present form having valid cause of action for the suit and got right to sue against the defendants as the defendants were found in illegal and unauthorized occupant in the suit land and area of 2 ½ decimals upon which the plaintiff had acquired valid right, title and interest by way of purchased and the plaintiff had given only 5 decimals of land to the defendants by way of registered sale deed No. 3549 dated 16.12.1987 upon which the defendants had got the right, title and interest and besides that the rest of the land has been illegally encroached by the defendants and therefore, the plaintiff is entitled to get the vacate possession of the defendants upon the suit land at the hand of the defendants by demolishing the structure raised upon 2 ½ decimals of land upon which the defendants had got valid right, title and interest and also an order of permanent injunction restraining the defendants further from entertaining and use of the suit land being so vacated by the defendants, henceforth, in the result it is hereby ordered that"

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12. Thus the learned trial court rejected the plea of the defendants regarding title over 2 decimals of land based on agreement and held that the defendants were having title only with resect to 5 decimals of land purchased from the father of the plaintiff by registered deed and held that the rest of the land has been illegally encroached by the defendants and therefore, the plaintiff is entitled to get the vacate possession of the defendants upon the suit land at the hand of the defendants by demolishing the structure raised upon 2 ½ decimals. The learned trial court also held that since the possession of the defendants over 2 ½ decimals was not in dispute hence, the defendant's plea that the schedule of the land was not specified the boundary could not be sufficient to decline the relief as sought by the

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plaintiff by citing detail reasons mentioned in paragraph 23 of the judgment.

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13. The learned 1^st appellate court has framed only one point of determination that whether the appellant has right, title and interest over the suit land and on the basis of the alleged unregistered agreement dated 16.12.1987 (Exhibit-D)?

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14. The findings of the learned 1^st appellate court regarding point of determination framed by the learned 1^st appellate court is in paragraph 16 and 17 of its judgment which is as follows:-

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16…………………….

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Perused the oral evidence of plaintiff evidence as well defendants evidence. P.W. 1 as well as P.W. 3 during deposition stated about the boundary of the schedule land. P.W. 1 also stated that they have also purchased remaining 5 decimal land of plot No. 645 from the son of late Baikuntanath Kabi. He in Para No. 28 denied to admit the signature of Purnachandra Mishra and Baikunthnath Kabi on the above said agreement of 16.12.1987. P.W. 2 deposed that three shop and one gate have been constructed over the land of Satyanarayan Mishra as per Amin beside the road. P.W. 3 stated that only 5 decimal land was sold and defendant encroached 2 ½ decimal land. All have stated about the measurement done by Amin. D.W. 1 admitted that defendant purchased 5 decimal land through sale deed and in para 27 she admitted that she is in possession of 7 decimal land. During the trial of the case, plaintiff not admitted the alleged agreement rather stated that signature over there are not belongs to the plaintiff or its vendor. Perused rent receipts as well as Ext. 2 of 16.12.1987 by which 5 decimal land was purchased by the defendants, Amit Report (Ext. 3), Ext. 4 of Sale Deed by which father of plaintiff purchased the land on dated 18.09.1962 and Ext. 5 i.e. Sale deed 260 dated 08.02.14. Ext. 6, Correction Slip and Ext. 7 General Power of Attorney. Also perused Ext. A i.e. same sale deed by which Purnachandra Mishra purchased land from Baikuntanath Kabi. Ext. B i.e. sale deed by which Ganga Rani Paul purchased 5 decimal of land from Purnachandra Mishra. And Ext. C correction slip of said 0.05 decimal of land. On

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perusal of Ext. D, I find that it is an unregistered agreement which was not admitted by the plaintiff and a unregistered agreement not confers any right, title, interest over the land to any person. Plaintiff during evidence not admitted the signature mentioned therein. It is not clear when Baikunta Nath Kabi, vendor of plaintiff sold his land to the father of plaintiff, then why he put signature therein. There is no sale deed in regard to said suit land. In this case it is evident that the defendants/Appellants are in possession of the suit land and constructed structure/building over it also. From, the evidence oral as well as documentary, it is clear that said suit land has been encroached by the Defendant/Appellants and the plaintiff is entitled to get the vacate possession of his land upon which Defendant/Appellants constructed structure. Defendants/Appellants have only right, title, interest over 0.05 decimals of land which they purchased through valid sale deed. Defendants/Appellants produced no valid documents regarding the said land or proved.

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17. Therefore, I find that learned trial court rightly decreed the suit and there is not infirmity in the judgment of the learned trial court, accordingly I find to merit in this appeal and accordingly this appeal is hereby dismissed on contest without cost. Parties to bear their respective cost. Let a copy of this judgment along with L.C.R. be sent to the learned trial court for information and needful. Let a decree be prepared accordingly.”

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15. The findings of the learned 1^st appellate court reveals that the suit land was well identified considering the oral and documentary evidences placed on record.

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Arguments on behalf of appellants.

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16. The learned counsel for the appellants has referred to the Judgment passed in the case of Rahul S. Shah vs. Jinendra Kumar Gandhi and Others reported in (2021) 6 SCC 418 and has referred to paragraph 42 of the said judgment and in particular paragraph 42.5 and has submitted that in the present case the schedule to the property was itself vague and did not contain necessary details and consequently the decree is not capable of being executed.

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17. The learned counsel has referred above paragraph 42.5 of the aforesaid judgment and has submitted that in the entire judgment passed by the learned trial court the boundary of the schedule A property has not been mentioned and therefore, the schedule A property is not identified.

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Arguments on behalf of respondent.

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18. The learned counsel appearing on behalf of the respondent on the other hand has opposed the prayer and has submitted that the schedule land has been sufficiently identified as the defendants were owning the property of only 5 decimals by virtue of registered sale and it was alleged that the defendants were in possession of 2 ½ decimal over and above 5 decimals. He has also submitted that this fact was substantiated in the suit by filing Amin’s report who had recorded that altogether 7 ½ decimal of land was in possession of the defendants. He has also submitted that one of the plea taken by the defendants in the suit was that they were in possession of further 2 decimal of land by virtue of some agreement entered into between the parties. The learned counsel has submitted that the suit land was well identifiable and as per the judgment passed by the learned trial court it was declared that the plaintiff would be entitled for 5 decimal of land which was covered by his sale deed and he was to be evicted from the remaining portion of the land. Thus, it has been held that the defendants would be entitled to 5 decimals of land as per sale deed no. 3549 dated 16.12.1987 and the defendants have to be evicted from remaining 2.5 decimal of land. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court in case of Sanwarlal Agrawal and Others vs. Ashok Kumar Kothari and Others in Civil Appeal No. 1312-1313 of 2023 and has submitted that in the said judgment the earlier judgment has been considered and the law is well settled that if the decree is found to be ambiguous, then in such case it is a duty of the Executing court to construe a decree and

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for the purpose of interpreting a decree, the court would certainly be entitled to look into the pleadings and the judgment and certainly the executing court cannot modify the decree itself.

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Findings of this Court.

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19. After hearing the learned counsel appearing on behalf of the parties, this Court finds that it is not in dispute that the defendants were claiming only 5 decimals of land by way of registered sale deed No. 3549 dated 16.12.1987 and has claiming further 2 decimals of land by virtue of some agreement of sale and was found in possession of 7.5 decimal of land in total. The learned trial court had clearly recorded a finding that the defendants were in illegal and unauthorized occupation of area of 2.5 decimal upon which the plaintiff had acquired valid right, title and interest by way of purchase and plaintiff had given only 5 decimal of land to the defendants by way of registered sale deed upon which the defendants have got right title and interest and besides that, the rest of the land was illegally encroached by the defendants. Therefore, the plaintiff was found entitled to get the vacant possession from the defendants upon the suit land by demolishing the structure raised upon 2 ½ decimals of land. Ultimately the suit was decreed and it was held that the plaintiff is entitled for decree of the vacate possession by demolishing all illegal unauthorized construction raised by the defendants upon the vacant land of the plaintiff to the extent of 2 ½ decimal.

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20. This Court finds that though the schedule of the property was mentioned as schedule A in the district of Seraikella Kharswan, Thana Gamharia, bearing Khata No. 86, Plot No. 645/A, Kisim Don-III, Area 0.02 ½ decimals but on the face of the judgment, the defendants have been found entitled only to the area of 5 decimals of land which was covered by the registered sale deed No. 3549 dated 16.12.1987 and their claim over further 2 decimals of land on the basis of an agreement has been discarded by citing reasons and no substantial

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question of law has been framed on such findings and there is finding that the construction has been made on 2 and ½ decimal of land belonging to the plaintiff and such finding is supported by the report of the amin who had measured the property. This Court is of the view that while executing the decree the executing court will certainly have the jurisdiction to look into the findings recorded in the judgment which appears from the face of the judgment. 21. In view of the aforesaid facts and circumstances, this Court is of the view that the description of the suit land was not vague and the suit land had been sufficiently identified as the learned court has held that the defendants were entitled to retain only 5 decimal of land which was covered by the registered sale deed No. 3549 dated 16.12.1987 and the remaining area of 2 and ½ decimal was illegally occupied by the defendants and it belonged to the plaintiff .

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22. Thus, in-spite of specific pleading of the defendants in the written statement that the description of the suit land was vague and without any boundary, trace map and other description, the judgement of both the courts cannot be said to be perverse as the entitlement of the defendants were admittedly only to the extent of 5 decimals of land in terms of registered sale deed No. 3549 dated 16.12.1987 and the defendants were asked to evict the excess portion the area of the suit land which was under their illegal possession. The judgements are very clear with respect to the right of plaintiff after exclusion of the rights of the defendants with respect to only 5 decimals of land covered by registered sale deed No. 3549 dated 16.12.1987 of the defendants and therefore the impugned judgements cannot be said to be perverse on account of non-framing of any issue or non-framing of any point for determination with respect to identity of the suit property. The aforesaid substantial question of law is accordingly answered against the appellants and in favour of the respondent.

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23. In view of the aforesaid findings and answer to the substantial question of law, this Second Appeal is dismissed.

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24. Pending interlocutory application, if any, is closed.

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25. Let this order be communicated to the concerned court through

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