NAWAL KISHORE BHAGAT Vs. RATAN KUMAR BHAGAT

JUDGEMENT

(1.) The instant civil miscellaneous petition stands directed against the order dtd. 22/12/2023 passed by learned Munsif, Simri Bakhtiyarpur, Saharsa in Title Execution Case No. 02 of 2001 whereby and whereunder the learned trial court rejected the application of the petitioners filed under Order XXI Rule 97, 100, 104 and Sec. 151 of the Code of Civil Procedure (in short "the Code").

(2.) Shorn of unnecessary details, facts of the case are that one Sachchidanand Bhagat who was maternal grandfather of the petitioners, filed a Title Eviction Suit No. 30 of 1987 against defendant Atmanand Prasad whose heirs/legal representatives are respondent nos. 2-11 in the present case. The Title Eviction Suit No. 30 of 1987 was decreed on 22/9/1989 and being aggrieved by the said judgment and decree, defendant Atmanand Prasad filed Title Appeal No. 17 of 1989 which was also dismissed vide judgment and order dtd. 7/4/1999. Second Appeal No. 255 of 1999 filed by Atmanand Prasad also came to be dismissed and SLP (Civil) CC 1358-1359/2008 before the Hon'ble Supreme Court was also dismissed. Thereafter, the present Title Execution Case No. 02 of 2001 has been filed. The petitioners claim that Sachchidanand Bhagat had two wives, Jiya Devi and Sudama Devi. Jiya Devi had two daughters, Urmila and Kaushalya, and the petitioner nos. 1 and 2 are the respective sons of the two daughters. From the 2nd marriage of Sachchidanand Bhagat with Sudama Devi, birth of a son, respondent no. 1, Ratan Kumar Bhagat and a daughter Mangali Devi took place. After death of Sachchidanad Bhagat, decree holder of Title Eviction Suit No. 30 of 1987, respondent 1st party, Ratan Kumar Bhagat filed Execution Case No. 02 of 2001 in which neither the petitioners nor Mangali Devi were made parties. It is also claimed by the petitioners that there had been a partition between the heirs of 1st wife and the 2nd wife of Sachchidanand Bhagat and accordingly the disputed land under Mauza Bakhtiyarpur, Old Khata No. 1, Old Plot No. 1973, New Khata No. 1245, New Plot No. 2252 measuring in area 3 decimal including pucca house and mud built house and area measuring 1.5 decimal from northern side was allocated in share of these petitioners and the petitioners are in possession of the same. The petitioners further claim that the decree holder and judgment debtor, in collusion with each other, have not made the petitioners parties with intention of usurping the right of the petitioners. Thus, the petitioners filed an application dtd. 27/7/2022 under Order XXI Rule- 97, 100, 104 read with Sec. 151 of the Code before the learned Executing Court praying therein that right, title and possession of the petitioners be decided first as by family partition they are in possession over the suit land and they have not been made parties. A rejoinder was filed by the respondent 1st party on 26/8/2022 stating therein that the petitioners have filed the application in order to deny decree holders the fruits of decree. The learned Executing Court vide order dtd. 22/12/2023 dismissed the application of the petitioners dtd. 27/7/2022 in limine. The said order is under challenge before this Court.

(3.) Learned counsel for the petitioners submitted that the impugned order is improper and illegal as any application filed under Order XXI Rule- 97 of the Code by a person in possession of the decretal property is to be disposed of after registration of miscellaneous case under Rule 459 of the Civil Courts Rules of High Court of Judicature at Patna and the claims of the petitioners are required to be decided by the Executing Court by following the procedure of a suit in terms of Sec. 141 of the Code. The learned counsel further submitted that since the petitioners are in possession of half of the suit property, if they object to the execution of the decree holder/respondent 1st party and have filed the petition under Order XXI Rule- 97, 100, 104 read with Sec. 151 of the Code, their objection is to be disposed of following the procedure provided under the aforesaid provisions and could not have been rejected in limine. Learned counsel further submitted that Order XXI Rule 101 provides that even if the application is filed under Order XXI Rule 97, every question relating to the objection of the parties is to be decided in the same proceeding and no separate suit will be entertained. However the learned trial court committed an error observing that petitioners are claiming shares in the decretal property and they have to file a separate suit. Learned counsel further submitted that it is the specific case of the petitioners that they are the heirs of Sachchidanand Bhagat and are having possession over an area of 1.5 decimal upon which the decree has to be executed and if the decree is executed and delivery of possession is given to the decree holder, the right and possession of the petitioners would be affected. Even if there is challenge to the relationship of the petitioners with Sachchidanand Bhagat and whether they are entitled to share in the decretal property, the same is to be decided by the same Court by instituting a miscellaneous case and the Court could not have rejected the claim of the petitioners in limine. Learned counsel referred to the execution petition of the petitioners submitting that it would be apparent from the said petition that out of total area of 3 decimal in family partition, from the northern side 1.5 decimal was allocated in the share of these petitioners having their house and their possession over the said portion. Therefore, execution proceeding against the said area would affect the right, title and possession of the petitioners which need to be adjudicated by the Executing Court. The learned trial court has wrongly held that the petitioners are claiming share, whereas they are seeking protection of their possession of the property they got in partition.