SURENDRANATH PANDIT Vs. HAREKRISHNA PANDIT

JUDGEMENT

(1.) THE dispute in the present case cropped up during execution of a decree passed in Title Suit No. 110 of 1985 of the Court of the Civil Judge (SD), Baripada in Execution Case No. 9 of 1996.

(2.) T . S. No. 110 of 1985 was one for partition. Preliminary decree was passed in the suit and thereafter final decree proceeding was initiated. A Civil Court Commissioner was deputed to measure the land and make the allotments. The report submitted by the said Commissioner was accepted after hearing objection and the decree was made final. Opposite party No. 1 and others filed the aforesaid Execution Case to execute the final decree. In the said Execution Case once again another Civil Court Commissioner was deputed to deliver possession of lands in consonance with the BADAR and trace maps prepared earlier. In course of delivery of possession the Commissioner was confronted with a construction existing on a portion of the suit land. As the decree was silent with regard to demolition of any construction, the Commissioner reported to the executing Court with regard to existence of a portion of the cow -shed over Sabik plot Nos. 288 and 291 corresponding to Hal plot Nos. 407/4 and 410. While matter stood thus the present petitioners filed MJC No. 63 of 2002 under Section 47, CPC before the Court with a prayer to dismiss the Execution Case as there is no decree for demolition or eviction. According to the petitioners, who are sons of one Arjun Pandit, the entire suit property was the joint family property of the parties who are descendants of a common ancestor. In the year 1961 a partition suit was filed which was registered as O.S. No. 12 of 1961. A preliminary decree was passed in the said suit on compromise. According to the preliminary decree, except the properties described in Schedule 'C' of the plaint of Title Suit No. 110 of 1985, all other properties were allotted to the share of Arjun Pandit, father of the petitioners. It was also submitted that the compromise petition filed in O.S. No. 12 of 1961 would further reveal that a cow -shed was existing on plot No. 410 which was adjacent to plot No. 407/4, Plot No. 410 was allotted in favour of the father of the petitioners; whereas plot No. 407/4 had been partitioned among the opposite parties. According to the petitioners, as a cow -shed was existing on the land appertaining to plot No. 410 and a portion of plot No. 407/4 for the last twenty years or more, the same could not be demolished in the absence of a decree for eviction and/or demolition. On the basis of such pleading it was prayed that the cow -shed existing oh an area of Ac. 0.01 dec. on Plot No. 407/4 should not be demolished and the Execution Case should be dismissed to that extent. These averments are strongly repudiated by the decree holder -opposite parties. According to them, neither the petitioners nor their father Arjun Pandit has any semblance of right, title or interest over any portion of plot No. 407/4. The said plot was not allotted in favour of Arjun Pandit in O.S. No. 12 of 1961 and was in fact allotted to the branch of the opposite parties. It is further submitted that the father of the petitioners was a defendant in T.S. No. 110 of 1985 out of which the present Execution Case arises and he had never raised any objection with regard to partition of the lands appertaining to plot No. 407/4 along with other lands among the opposite parties. According to the decree -holders, as the petitioners have no semblance of right, title or interest over any portion of plot No. 407/4, the construction existing on a portion of the said plot was raised after passing of the final decree and before execution should be demolished and possession of the land should be handed over to the decree holders.

(3.) MR . S. P. Misra, Learned Senior advocate appearing for the petitioners, strenuously took this Court through the plaint of O.S. No. 12 of 1961, the compromise decree and also the plaint of T.S. No. 110 of 1985 and forcefully submitted that the cow -shed in question was existing on the aforesaid plot for more than thirty years and as such, the Courts below acted illegally and with material irregularity in dismissing the MJC filed under Section 47, CPC. He further submitted that even admitting that the petitioners have no right on plot No. 407/4, but as the said plot adjoins plot No. 410 which belongs to them and the cow -shed in question is in possession of the petitioners for more than 30 years, the decree for partition cannot be executed without a decree for eviction and/or demolition of the said construction.