Dismissed

Mostt.bachhi Devi v. Raghvendra Sahi @ Raghvendra Prasad Sahi and Ors.

Patna HC26 Sept 2013CWJC/11782/2012

Case brief

AI extract

What is this about?

The High Court of Patna dismissed a writ petition challenging the rejection of an application resisting execution of a partition decree. The Court held that the petitioners' plea regarding unavailability of the Pleader Commissioner's report was vexatious, noting that maps and barbada had been prepared and confirmed earlier.

What the court decided

AI extract

Mostt.bachhi Devi Vs Raghvendra Sahi @ Raghvendra Prasad Sahi and Ors. — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 11782 of 2012

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====================================================== Mostt.Bachhi Devi, Wife of Late Ratneshwar Choudhary, Resident of

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Village - Kharka, at present resident of Village Sahwajpur, Police Station - Sadar (Ahiyapur), Post Office – Bhikhanpur Kothi, District – Muzaffarpur.

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.... .... Plaintiff/Petitioner Versus

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Raghvendra Sahi @ Raghvendra Prasad Sahi, Son of Late Dhanushlal Sahi, Resident of Village - Sahbajpur Salempur, Post Office - Bhikhanpur Kothi, Police Station - Ahiyapur, District – Muzaffarpur.

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… Judgment debtor/Respondent 1^st

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Raj Kishore Singh, Son of Late Kashi Singh

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Dr. Awadhesh Singh Son of Kashi Singh

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Both residents of Village - Narma, Police Station – Hathouri, Post Office - Narma, District - Muzaffarpur

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Janki Devi, Wife of Ram Sanjeevan Singh, resident of Village - Morsand, Post Office - Mohanpur, Police Station - Runnisaidpur, District - Sitamarhi

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Lalita Devi, Wife of Sitaram Singh

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Nanhaki Devi, Wife of Satrughan Singh

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Both resident of Village + Post Office - Chahuta , Police Station - Aurai, District - Muzaffarpur

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Prabhu Singh, Son of Late Tapeshwar Singh,

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Ram Kishore Singh, Son of Tapeshwar Singh

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Both residents of Village + Post Office - Narma, Police Station - Hathouri, District - Muzaffarpur

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Kailash Devi, Wife of Late Chandra Kishore Singh, Resident of Village - Morsand, Post Office - Mohanpur, Police Station - Runnisaidpur, District - Sitamarhi

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Ram Binay Singh, Son of Late Ramasish Singh, Resident of Village - Sorsand, Post Office - Mohanpur, Police Station - Runnisaidpur, District - Sitamarhi

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Dharmshila Devi, Wife of Bhogendra Sahi, Resident of Village + Post Office - Sahi Meenapur, Police Station - Aurai, District - Muzaffarpur

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Usha Devi, Daughter of Ukashi Resident of Village - Athari, Post Office - Athari, Police Station - Runnisaidpur, District - Sitamarhi

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Patna High Court CWJC No.11782 of 2012 (4) dt.26-09-2013

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.... .... Plaintiffs/Respondents

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====================================================== Appearance : For the Petitioner : Sri S. S. Dwivedi, Sr. Advocate Ms. Sangeeta Sharma with Mr. Ranjan Kumar Dubey, Mr. Rakesh Chandra, Mr. Satyendra Nath Shukla and Ms. Shalini, Advocates For the Respondents : Sri Kamal Nayan Chaubey, Sr. Advocate Mr. Ambuj Nayan Chaubey with Mr. Gopal Swaroop Dubey and Mr. Siddharth Harsh, Advocates ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 4 26-09-2013 The petitioner in the present application under Article 227 of the Constitution is aggrieved by an order dated 27.04.2012 passed by the learned Sub-Judge, 1^st Muzaffarpur in Partition Execution Case No. 1 of 2007, whereby he has rejected a petition dated 31.05.2007 filed by the petitioner, who is the judgment debtor, for stay of the Execution Case No. 1 of 2007. The petitioner was the plaintiff in the partition suit.

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Facts relevant for adjudication of the present application are not much in dispute. The original plaintiff had filed the Title Suit No. 75 of 1964 in the Court of learned Sub-Judge, 1^st , Muzaffarpur for partition of ½ shares in the disputed land. The same was decreed ex parte vide judgment and decree dated 19.06.1965 as the defendant did not appear. An application, thereafter, was filed by the defendant for deputation of a Pleader

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Patna High Court CWJC No.11782 of 2012 (4) dt.26-09-2013

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Commissioner to effect final partition and for preparation of final decree. A Pleader Commissioner was accordingly appointed who submitted his report on 21.06.1967. The petitioner filed objection to such report but it was rejected by the trial Court vide judgment and decree dated 31.07.1973. The Title Appeal No. 85 of 1973/3 of 1975 against the said final judgment and decree was allowed vide judgment and decree dated 26.11.1975 and the matter was remitted back to the trial Court with a direction that the Pleader Commissioner be again directed to invite objection from the petitioner (appellant) on Raibandi and Pattibandi. Against the said judgment and decree dated 31.07.1975, the defendant, who is the respondent 1^st herein, filed Second Appeal No. 63 of 1976. This Court vide order dated 18.05.1984 passed in the said Second Appeal No. 63 of 1976 directed the Court below to appoint a Pleader Commissioner afresh with an observation that the Pleader Commissioner should ensure that any property already sold to a third party either by the plaintiff or the defendants is retained in the shares of the transferor. Pursuant to this Court’s direction the Pleader Commissioner submitted a report. This Court disposed of the Second Appeal accepting the report of the Pleader Commissioner with the only modification that in stead of dividing certain plots from east to west, this Court indicated that it should

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Patna High Court CWJC No.11782 of 2012 (4) dt.26-09-2013

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be divided from north to south. The petitioner being aggrieved by the order passed in the second appeal preferred Special Leave Petition before the Supreme Court vide SLP (C) 10446 of 1985 which too was dismissed vide order dated 09.12.1985 with an observation that the petitioner, if so advised, might move this Court for review of the order passed in the second appeal. A review petition was, thereafter, filed by the petitioner vide Civil Review No. 6 of 1986 which was also dismissed, though, for noncompliance of pre-emptory order.

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This is to be noted that in light of the order passed by this Court in second appeal, the Pleader Commissioner submitted his report on 03.09.1996. The petitioner filed an objection against that, which was rejected by the learned trial Court on 24.04.1999. Against the order dated 24.04.1999 passed by the trial Court, the petitioner preferred Civil Revision application before this Court vide Civil Revision No. 930 of 1999 which was also dismissed. Again the petitioner approached the Supreme Court by filing SLP (C) No. 15759 of 1999 which was also dismissed. Execution of the decree is being resisted, now, by the petitioner primarily on the ground that the petitioner had applied for obtaining certified copy of the Pleader Commissioner’s report, barbada and map vide Chirkut No. 73691 dated 29.06.1999, which documents have so

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Patna High Court CWJC No.11782 of 2012 (4) dt.26-09-2013

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far not been made available to the petitioner. With reference to the ordersheet of Title Suit No. 75 of 1964, it has been contended that the order dated 10.08.1999 shows that the map is not visible, though it was in good condition about a month back. On the plea that since such documents have not been supplied, the execution case should not proceed any further. The petitioner filed an application before the executing court on 31.05.2007 in Execution Case No. 1 of 2007. On the sole ground of non-supply of the certified copy of the report of the Pleader Commissioner after filing of the Chirkut on 29.06.1999, the execution is being resisted by the petitioner. According to the petitioner the description of the property cannot be said to be specific for the purpose of execution.

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I have heard Mr. S. S. Dwivedi, learned Sr. Counsel appearing on behalf of the petitioner and Mr. Kamal Nayan Chaubey, learned counsel appearing on behalf of the respondents at length and I have perused the impugned order dated 27.04.2012. The learned Court below while dealing with the petitioner’s application, resisting the execution on the ground as indicated above, has come to a categorical finding on the basis of the materials available before him that in compliance of this Court’s order passed in Second Appeal No. 63 of 1976, the survey

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Patna High Court CWJC No.11782 of 2012 (4) dt.26-09-2013

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knowing Pleader Commissioner had prepared a map and submitted to the Court on 29.06.1999 and the shares of the plaintiff and defendants had been shown in grey and pink colors indicating that the plots which were partitioned in north-south were intact as per the map prepared earlier and submitted on 20.08.1984 . In the barbada, the correction was made and it has been recorded that the plot numbers mentioned were clear and visible. As per barbada, although the properties mentioned in the map were faint but the color denoted the shares of the plaintiff and the defendants.

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The Court below has clearly indicated in the impugned order that on filing of the modified maps, which were prepared on 02.06.1996, the respective plots mentioned in the order of this Court in Second Appeal, a report was prepared which was confirmed by the Court below vide order dated 29.04.1999/ 01.05.1999 which too was confirmed upto the Apex Court. In such circumstances, the plea that the petitioner did not get and have copy of the report of the survey knowing Pleader Commissioner, the map and the Barbada was not acceptable.

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I do not find any infirmity in the reasoning assigned by the Court below while rejecting the petitioner’s application, resisting execution on such ground as has been indicated above.

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Patna High Court CWJC No.11782 of 2012 (4) dt.26-09-2013

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Pursuant to this Court’s order passed in Second Appeal No. 63 of 1976, admittedly, a Pleader Commissioner was appointed who had submitted his report on 03.09.1996. The petitioner had filed an objection against such report which was rejected vide order dated 24.04.1999 by the Court below. The order by which his objection against the Pleader Commissioner’s report dated 03.09.1996 was rejected, was challenged by the petitioner before this Court by filing Civil Revision No. 930 of 1999. Dismissal of the said civil revision petition by this Court was challenged by the petitioner before the Supreme Court which too was dismissed. At this stage, taking the plea that the Pleader Commissioner’s report dated 03.09.1996 is not available to the petitioner and, therefore, the execution proceeding should not be proceeded, is apparently vexatious and cannot be accepted.

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I do not find any merit in this application and, is accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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Ashwini/-

Mostt.bachhi Devi v. Raghvendra Sahi @ Raghvendra Prasad Sahi and Ors.

Case brief

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Mostt.bachhi Devi v. Raghvendra Sahi @ Raghvendra Prasad Sahi and Ors.

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