SAKALDEW PRASAD SAHANI Vs. NARAKANTA SAIKIA

JUDGEMENT

(1.) THE present revision petition reminds one of the slow pace with which the wheels of administration of justice, at times, move, for, the present one is a case, wherein the plaintiff had knocked the doors of the Court about 20 years ago and though his suit, eventually, succeeded, he died without seeing his effort bearing fruits and his legal representative is, now, before this Court with the present revision petition.

(2.) BEFORE I deal with the questions, which have been raised in the present revision, necessary it is that the material facts and various stages, which have given rise to the present revision, may be briefly set out thus : The present petitioner's father, late Radhamohan Sahani, purchased, by a registered sale deed, dated 1. 12. 1976, a plot of land measuring one Bigha one Katha from five joint patta-holders of the land, namely, Lakhi Das, Maniram Das, Srimati Phuleswari, Golok Das and Akani Das. The petitioner's father had already been in possession of 8 Lessas of the land, when he purchased the land; but the remaining part of the land, namely, 1 Bigha and 12 lessas remained in the possession of the vendors and one Sarbeswar Chutia, who had laid claim of adverse possession over the land. Unable to recover the possession of the land, which he had so purchased, the petitioner's father instituted Title Suit No. 34/1977 (re-numbered as TS No. 46/1978) against the said vendors and Sarbeswar Chutia aforementioned for, inter alia, declaration of his title to the entire plot of the land purchased by him and also for recovery of possession of that portion of the land, which he had not been able to occupy. This suit was dismissed. An appeal was preferred by the petitioner's father and by judgment and decree, dated 10. 4. 1981, passed in Title Appeal No. 36/1979, the appeal was allowed in favour of the petitioner's father. Still not satisfied, the defendants preferred a second appeal and, by judgment and decree, dated 17. 5. 1990, passed in Title Appeal No. 97 of 1981, this Court upheld the judgment and decree passed by the learned first appellate Court. The petitioner's father, then, put the decree into execution by instituting Title Execution No. 07/1990. This time, the petitioner's father was resisted from realizing the fruits of the decree by the present opposite party, namely, Sri Narakanta Saikia, insamuch as the opposite party herein instituted a suit for declaration that the decree, which the petitioner's father had obtained, was not binding on the opposite party herein. This suit, upon contest, was, eventually, dismissed and the appeal preferred by the opposite party herein against the dismissal of the suit also ended in dismissal. Upon death of the petitioner's father, the petitioner persued Title Execution Case No. 07 of 1990 aforementioned and, ultimately, a warrant of delivery of possession, under Order 21 Rule 35 of the Code of Civil Procedure (in short "the Code"), was issued requiring the bailiff of the Court to clear the land of all obstructions and deliver vacant and khas possession thereof to the present petitioner by evicting the opposite party herein and others from the said land. The learned Executing Court also issued directions for providing assistance of the revenue staff (i. e. , Lat Mandal) and police force to the bailiff so as to help him execute the decree and fixed 1. 10. 2004 for report of the bailiff as regards the execution process. On 18. 9. 2004, in execution of the warrant of delivery of possession, the petitioner was given possession of the land by the bailiff as shown to the bailiff by the Lat Mandal. However, the present petitioner filed, in the said execution proceeding, a petition, on 29. 9. 2004, i. e. , two days ahead of 1. 10. 2004 (i. e. , the date fixed for submission of the report of the bailiff), stating, inter alia, that though his signature was taken on the execution process of delivery of possession in satisfaction of the decree, delivery of the entire land, covered by the decree, had not been handed over to him and that the execution of the decree suffered from deficient delivery of possession to the extent of 1 Katha 4 Lessas, the decree-holder's further case being that on 18. 9. 2005, under the impression that he had been given possession of the entire decretal land, he (i. e. the petitioner), as the decree-holder, had put his signature on the relevant papers but on coming to know, later on, that he had not been given delivery of possession of the entire land, covered by the said decree, he has filed the said petition. The petitioner accordingly prayed for an inquiry to be made in this regard and, for this purpose, sought for summons to be issued to the Lat Mandal so that the Lat Mandal could be examined in order to enable the petitioner to show deficient delivery of possession and also to enable the Court to direct further and complete execution of the decree. Based on this petition, the learned executing Court passed an order, on 1. 10. 2004, fixing the matter for examination of Lat Mandal on 25. 11. 2004. On the date, so fixed, i. e. 25. 11. 2004, while the Lat Mandal was present before the learned Executing Court, the learned Executing Court directed issuance of notice to the judgment-debtor. Ultimately, the judgment-debtor appeared in the proceeding and resisted the petition aforementioned by contending inter alia, that the decree already stood satisfactorily executed. Having considered the matter, the learned Court below passed an order, on 29. 1. 2005, dismissing the petitioner's said petition by observing, inter alia, that since the petitioner had already put his signature on the process of execution regarding his satisfaction of the decree and when the Nazir's report indicates that the possession of the decretal land has been handed over to the decree holder, no objection, as has been raised by the petitioner, is entertainable. Having so concluded, the learned Court below rejected the said petition. It is this order, dated 29. 1. 2005, which stands impugned, in the present revision, by the decree-holder.

(3.) I have heard Mr. T. C. Khetri, learned Senior Counsel, for the decree holder-petitioner, and Dr. Y. K. Phukan, learned Senior counsel, appearing on behalf of the judgment debtor-opposite party.