CHINTA DEVI Vs. SITA RAM PRASAD

JUDGEMENT

(1.) The instant civil miscellaneous petition has been filed for quashing the order dated 20th of February, 2017 passed by learned Sub Judge-I, Hilsa, Nalanda in Execution Case No. 01 of 2014, whereby and whereunder the learned executing court set aside the delivery of possession and also the report submitted by the Nazir and directed the decree holder, i.e., the petitioners to take necessary steps for taking further delivery of possession in the land in question.

(2.) Briefly stated, the facts of the case as it appears from the record, are that the petitioners filed a Title Partition Suit No. 38 of 2001 against defendants/respondents claiming their half share in the scheduled property of the plaint. The suit was contested and the learned trial court after hearing the matter decreed the suit by passing the judgment dtd. 27/1/2006 and issuing the decree dtd. 8/1/2007. On 25/7/2007, a petition was filed for appointment of Pleader Commissioner to submit his report and one Sri Vasudev Narayan Verma, learned Advocate, was appointed as Pleader Commissioner. The learned Pleader Commissioner submitted his report to the court on 2/7/2008. It further transpires from the petition of the petitioners that after lapse of three years, respondents filed an objection on 17/10/2011 against the report of the Pleader Commissioner. The learned trial court, after hearing the parties, accepted the report of the Pleader Commissioner and rejected the objection filed by the respondents. No appeal or revision was preferred by the respondents against the said rejection. On the basis of Pleader Commissioner's report, final decree was prepared on 3/4/2012 with regard to shares of the parties. However, the petitioners claim that the respondents continued their cantankerous approach and, as such, the Execution Case No. 01 of 2014 was filed for Takthabandi on 23/1/2014. In the said case, Nazir was appointed by the court to effect delivery of possession as per final decree dtd. 3/4/2012 and on 20/9/2015, the Nazir filed his report under Order 21 Rule 35 of the Code, submitting that the delivery of possession was given to both the parties as per the procedure laid down under the Code. It further transpires that after lapse of 11 months, respondents filed a petition of 9/8/2016, making allegation against the report of Pleader Commissioner as well as report of Nazir, as the report contained a number of mistakes and sought fresh delivery of possession by the court. The petitioners filed a rejoinder to the said petition. The learned trial court vide order dtd. 20/2/2017 allowed the petition dtd. 9/8/2016 filed by the respondents and rejected the report of the Nazir regarding delivery of possession. The said order is under challenge before this Court.

(3.) Learned counsel for the petitioners submitted that the petitioners are aggrieved by the impugned order for the reason that the said order is passed against the law as well as facts. The learned executing court exceeded its jurisdiction to entertain the application of the respondents as after passing of the preliminary as well as final decree, such application could not have been entertained by the learned executing court. The learned executing court did not consider the fact that the Nazir has already submitted its report about delivery of possession and the same could not be undone, on asking of the respondents who are judgment debtors. The learned executing court did not consider the well settled principles of law and without assigning any cogent reason, allowed the application of the judgment debtor. Learned executing court also failed to take into consideration that earlier an objection petition dtd. 16/7/2016 has been filed on behalf of the respondents and the said objection petition was dismissed by the learned executing court and the respondents, instead of challenging the same, filed another objection petition on 9/8/2016 on the same ground, which is not maintainable. Learned counsel further submitted that a careful reading of the material and the sketch map of the final decree would show that portion of lots which were allotted to the share of plaintiffs/petitioners are marked in red whereas the lots which were allotted to the share of defendants/respondents have no colour. The respondents were having full knowledge about date of executing of decree at they had been appearing in execution case regularly and the respondents refused to accept the notice and it was treated as valid service. A false claim has been made on behalf of the respondents that Nazir had made many cutting in the chart of respective shares of plaintiffs/decree holders and defendants/judgment debtors. Earlier, the learned executing court considered the objection and found no illegality in the Nazir's report and vide order dtd. 16/7/2016 rightly rejected the objection of the defendants/respondents.