SANDEEP VISHWAKARMA Vs. GOURI SHANKAR SABOO

JUDGEMENT

(1.) The present C.M.P has been filed for quashing the order dtd. 5/4/2022 passed by the Civil Judge (Sr. Division) No.1, Gumla in Misc. Civil Application No. 10/2022 (in connection with Execution Case No. 1 of 1999) whereby the application filed by the petitioner under Order XXI Rule 97 of CPC has been rejected.

(2.) Learned counsel for the petitioner submits that the land appertaining to Khata No. 07, R.S Plot No. 643, measuring an area of 1.13 Acres and Khata No. 8, R.S Plot No. 644, measuring an area of 0.24 Acre, Village-Chetar, P.S and District-Gumla were originally recorded in the name of Indru Singh, Chandru Singh and Chamra Singh. Indru Singh had leased out his part of share measuring an area of 0.28 Acre out of 1.13 Acres appertaining to R. S. Plot No. 643, Khata No. 07 in favour of Motilal Kesri on 15/3/1961 for a period of 99 years and thereafter Manmohan Keshri, son of Motilal Kesri had sub-leased 0.26 Acre out of 0.28 Acre of the said land to the petitioner's father on 15/5/1991. Since then, the petitioner's father and after his death, the petitioner is running a garage over the leased property. On 1/11/2021, few persons came to the garage of the petitioner and tried to disturb his possession and thereafter the petitioner came to know that Title Suit No. 53 of 1987 / 272 of 1988 was filed by Gauri Shankar Saboo and others against Suresh Prasad and others for declaration of title and confirmation of possession over the said land claiming that the recorded tenant had transferred the said land in their favour. The said suit was finally decreed in their favour vide judgment dtd. 19/2/1998. Aggrieved thereby, the defendants preferred first appeal, however, the same was also dismissed and thereafter they preferred second appeal before this Court, which is pending. The respondents filed Execution Case No. 1 of 1999 for execution of the decree dtd. 4/3/1998 prepared in terms with the judgment dtd. 19/2/1998. The petitioner having come to know about pendency of said execution case, filed an application under Order XXI Rule 97 of CPC, however, the same was dismissed vide the impugned order dtd. 5/4/2022. It is further submitted that the plaintiffs obtained the decree in Title Suit No. 53 of 1987 / 272 of 1988 by misrepresenting the fact that their ancestors were 'Jamindar' and the said land was surrendered by Indru Singh and Chandru Singh in their favour. In fact, the plaintiff' ancestors were not 'Jamindar', rather they were only 'Jarpesgidar'. The original Jamindar of the land was Shyam Lal Sahu. Moreover, there were three recorded tenants, but the surrender of the land was made by two of them only and this fact was also not disclosed by the plaintiffs in the Court's below. Learned counsel for the petitioner also submits that the Hon'ble Supreme Court in the case of A.V Papayya Sastry and Ors. Vs. Government of Andhra Pradesh and Ors. reported in (2007) 2 SCC 187 has held that if fraud is detected in obtaining a judgment, the same being non-est in law, is liable to be quashed. Though the petitioner has been in peaceful possession of part of the land in question since 1991 after execution of lease in favour of his father, yet he was not made party in the said suit.

(3.) Heard learned counsel for the petitioner and perused the relevant materials available on record. The Court below has observed in the impugned order dtd. 5/4/2022 that the heirs and successors of Indru Singh and Chandru Singh were the parties in Title Suit No. 53 of 1987 / 272 of 1988 as the defendant Nos. 4 to 7 and the Trial Court had held that the land in question was surrendered by the said raiyats to the concerned landlord vide registered deed No. 736 dtd. 30/10/1933 and as such their heirs were bound by the same. It has further been observed that the Pleader Commissioner had not found possession of the petitioner over the said land. Having observed so, the Court below has held that since the said land was already surrendered by the Indru Singh and Chandru Singh, Indru Singh had no transferable right and thus the alleged lease deed executed by Indru Singh on 15/3/1961 did not create legal right in favour of Motilal Keshri or Balu Mistry (the father of the petitioner). The petitioner is claiming that part of the said land was transferred to his father by the lessee of one of the recorded raiyats-Indru Singh and since then he/his father has been in possession of the said land. Moreover, the heirs and successors of Indru Singh were also the parties in the said suit as the defendant Nos. 4 to 7, however, they did not disclose the fact of execution of lease before the Trial Court. In support of his claim, the petitioner has brought on record the lease deed executed by Indru Singh in favour of Motilal Keshri and also the lease deed executed by Manmohan Keshri in favour of the petitioner's father. On bare perusal of the same, it appears that both the deeds were not registered in accordance with law and as such the genuineness of the same is doubtful in present circumstance that too, when the execution of any lease deed was not brought to the notice of the Trial Court by the heirs and successors of Indru Singh, who were already parties in the said suit as the defendant Nos. 4 to 7.