RAM KISHUN ORAON Vs. DEPUTY COMMISSIONER, LATEHAR

JUDGEMENT

(1.) The present writ petition has been filed for quashing order dtd. 3/10/2018 (Annexure-5 to the writ petition) passed by the Sub-Divisional Magistrare, Latehar in Misc. Case No. 475 of 2018 whereby, according to the petitioner, the said respondent, by exceeding its jurisdiction has tried to execute the judgment and decree passed by the Munsif, Latehar in Title Suit No. 03 of 2011 by handing over the possession of the land appertaining to old Khata No. 69, new Khata no. 134, old plot no. 798, new plot no. 1087, village Kamta, District- Latehar measuring an area of 1.99 acres (hereinafter to be referred as "the said land") in favour of the respondent no. 4. Further prayer has been made for quashing notice as contained in memo no. 146 dtd. 18/6/2019 (Annexure-6 to the writ petition) issued by the Circle Officer, Chandwa (the respondent no. 3) whereby a date was fixed to handover the peaceful possession of the said land in favour of the respondent no. 4 by evicting the petitioners from the same.

(2.) A counter affidavit has been filed on behalf of the respondent nos. 1 to 3. In the said counter affidavit, a copy of letter no. 235 dtd. 14/8/2019 issued by the respondent no. 3 to the Deputy Commissioner, Latehar (the respondent no. 1) containing the report of concerned Revenue Deputy Inspector has been annexed. On perusal of the said letter, it appears that the respondent no. 4 filed T.S. No. 03 of 2011 in the court of Munsif, Latehar against the petitioners which was decreed in his favour. Aggrieved with the said judgment, the petitioners preferred Civil Appeal No. 03 of 2018 in the court of the Principle District Judge, Latehar. The said appeal is pending adjudication before the appellate court.

(3.) The grievance of the petitioners is that without taking recourse of an execution proceeding, the respondent no. 4 with the help of the State respondents, is trying to take possession of the said land. The petitioners have however not averred in the writ petition as to whether any application under Order XLI Rule 5 of C.P.C. has been filed in the appellate court seeking stay of the judgment and decree passed by the original court in T.S. No. 03 of 2011. Further grievance of the petitioners is that the State of Jharkhand is claiming parallel title over 1.99 acres of the said land. The said aspect of the matter cannot be considered by this Court under extraordinary writ jurisdiction keeping in view that the Civil Appeal No. 03 of 2018 filed by the petitioners is pending adjudication before the appellate court. The petitioners have also not averred in the writ petition as to whether any step has been taken by them in the pending appeal to implead the State respondents at the appellate stage in view of the provisions contained in Order I Rule 10(2) of C.P.C. due to subsequent development which has taken place in the matter after passing of the judgment and decree by the trial court.