ANAND KUMAR JAISWAL Vs. JIWAT RAM AND OTHERS

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 14.09.2016 passed by the District Judge, Shahdol in Execution Case No. 47/2010.

(2.) The petitioner filed a civil suit for declaration of possession and permanent injunction. In respect of the suit property having an area of 86 x 45=3870 sq.ft. shown in the red colour in the plaint map having khasra no.1190/4 (presently khasra no.1190/5) situated at village Budhaar. The said civil suit was decreed in favour of the petitioner by the trial Court by judgment and decree dated 18.12.1997. and the petitioner was declared as owner of the suit property shown with read colour in the plaint map. The trial Court has further directed to respondent no.1 to hand over the possession to the petitioner. Against the said judgment and decree, respondent no.1 has preferred an appeal before this court, the said appeal was dismissed vide judgment and decree dated 20.04.2005, against the judgment and decree, respondent no.1 has preferred a SLP before the Supreme Court and the Supreme Court vide order dated 11.04.2008 has dismissed the said suit. After passing of the order by the Supreme Court, respondent no.1 through his brothers have initiated second round of litigation by filing an application under Order 21, Rule 97-99 of the CPC before Executing Court. The said application was dismissed vide order dated 11.03.2010, against which First appeal no.212/2010 was also filed before this Court and the same was also dismissed by this Court vide judgment dated 03.02.2011, against which a Review Petition was also filed which was dismissed by this Court. Thereafter, the petitioner has initiated execution proceedings against respondent no.1, respondents no.2 to 7/objectors have filed an application under section 151 of the CPC on 08.01.2013 and 12.12.2013 and prayed for dismissal of execution proceedings initiated by the petitioner on the ground that the petitioner refused to take possession of the disputed portion marked by the Patwari in its report. The petitioner filed its reply to the said application and stated that the respondents have no right to file such applications. The Executing Court vide order dated 16.12.2013 has dismissed the said applications and fixed the case for possession warrant on 20.01.2014. Respondents no.2 to 7/objectors preferred a writ petition no.22092/2013 before this Court which was later on converted into Civil Revision No. 308/2015. The said revision was allowed by this Court vide order dated 18.02.2016. This Court has set aside the order dated 16.12.2013 and directed the trial Court to appoint Patwari to demarcate the boundary so that the possession can be delivered to respondent no.1. Respondents no.2 to 7/Objectors thereafter in compliance of the order dated 18.02.2016 filed an application for direction for demarcation of the land bearing khasra no.1190/4 by Patwari. The Patwari has conducted a demarcation of khasra no.1190/4 from the side where there is no dispute and did not demarcated from the side, which is adjoining to the suit property is being claimed by the judgment Debtor/Objectors and without proper demarcation of the adjoining boundaries of the suit property filed its report dated 17.06.2016. The petitioner raised an objection to the Commissioner report dated 17.06.2016 on the ground that proper demarcation of the suit property was not made by the Patwari and adjoining boundaries have not been demarcated in order to ascertain the suit property. The respondents/objectors filed their reply to the said application and denied the averments of the application. The learned Court below without appreciating the grounds raised by the petitioner in the application and without calling the Commissioner in the witness box for cross-examination have dismissed the objections raised by the petitioner in respect of commissioner report vide order dated 14.09.2016. Being aggrieved by that order, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner argues that the Executing Court has erred in dismissing the application preferred by the petitioner. He submits that the Executing Court has further erred in rejecting the application without calling Commissioner in the witness box in cross-examination. The validity of the Commissioner report can only be determined after the cross-examination of Commissioner in the witness box. He further submits that the Patwari has demarcated the land of khasra no.1190/4 it is presently khasra no.1190/5 from the side where there is no dispute and did not demarcate from the side of judgment-debtor/objectors where the dispute actually exits. He further argues that the respondents in order to garb the suit property are in hands in gloves with revenue authorities and has got the demarcation done in their favour in spite of specific objection of the petitioner.