KISTO PADO KUMBHKAR Vs. SHYAMPADO KUMBHKAR

JUDGEMENT

(1.) The present revision petition has been filed for quashing the order dtd. 10/2/2022 passed by the Civil Judge (Sr. Division)- II, Dhanbad in Civil Misc. Case No. 13 of 2021, whereby the application filed by the petitioner under Order XXI Rule 97 and 101 r/w Sec. 151 CPC has been dismissed being not maintainable.

(2.) Learned counsel for the petitioner submits that the land appertaining to C.S Khata No. 204, Plot No. 335, Mouza- Bagsuma, Mouza No. 197, measuring an area of 10 decimals originally belonged to the recorded tenant namely, Anant Kumhar. After his death, the said property devolved in his widow namely, Smt. Makhan Kumharin, who sold the said land jointly to Shanti Kumharin, Kunti Kumharin, Sumitra Kumharin, Jhanu Khumharin @ Josu Kumharin and Fuli Kumharin @ Kuli Kumharin in equal share vide sale deed dtd. 10/2/1928. Sumitra Kumharin sold her 1/5th share i.e., 2 decimals of land to Bhim Kumhar vide sale deed dtd. 7/8/1953. Thus, Kunti Kumharin and her husband Bhim Kumhar jointly possessed 4 decimals of the said land out of total area measuring 10 decimals. After the death of Kunti Kumharin and Bhim Kumhar, their two sons i.e., the present petitioner and the Judgment Debtor/respondent no. 5 came in joint possession of 4 decimals of the said land. It is further submitted that said 4 decimals of land came in exclusive possession of the petitioner in family settlement and he constructed a residential pucca house as well as other structures over the same. A suit being Title Suit No. 262 of 2011 was filed by the plaintiffs/respondent nos. 1 to 4 against the respondent no. 5 in the court of Civil Judge (Sr. Division)-II, Dhanbad, wherein it was claimed that by an unregistered deed of partition among joint share holders, the said 10 decimals land came in the possession of Jhanu Kumharin, who sold the property to Bhikhakar Kumbhkar (father of the respondent nos. 1 and 2) and Sachindra Nath Kumbhkar (father of the respondent nos. 3 and 4) vide sale deed dtd. 26/2/1960. Finally, a decree was passed in favour of the plaintiffs/respondent nos. 1 to 4 and thereafter they filed Execution Case No. 1 of 2021 against the judgment debtor/respondent no. 5 for execution of the decree and only thereafter i.e., on 10/3/2021, the petitioner came to know about filing of Title Suit No. 262 of 2011 and passing of the judgment and decree in the same in favour of the plaintiffs. Accordingly, the petitioner filed Civil Misc. Case No. 13 of 2021 under Order XXI Rule 97 and 101 read with Sec. 151 CPC, however, the said application has been dismissed by the executing court vide impugned order dtd. 10/2/2022 observing that the issue raised by the petitioner has already been decided by the trial court.

(3.) In the case in hand, the office has reported that an appeal is maintainable against the impugned order and as such, the present Civil Revision is not maintainable. The said objection raised by the office has been countered by learned counsel for the petitioner by submitting that an inquiry with respect to the right, title and interest of the petitioner has not been made in Civil Misc. Case No. 13/2021, rather the same has been dismissed by the executing court at the admission stage itself being not maintainable and as such, the said order cannot be termed as a decree so as to file an appeal. Thus, the present revision petition is maintainable.