ASHA DEVI Vs. GAUTAM KUMARI GORAI

JUDGEMENT

(1.) The present civil miscellaneous petition has been filed for quashing the order dtd. 10/6/2022 passed by the learned Civil Judge (Sr. Division)-III, Dhanbad in Execution Case no.02 of 2005, whereby the objection filed by the judgment debtors/petitioners against the report of the Survey Knowing Pleader Commissioner dtd. 29/4/2019 has been rejected.

(2.) Mr. J. K. Pasari, learned counsel for the petitioners, submits that a Bench of this Court vide order dtd. 25/1/2017 passed in the second appeal being S.A. No.530 of 2015, while dismissing the same, had given liberty to the petitioners (appellants of the second appeal) to file an application before the Executing Court for proper identification and demarcation of the suit property, on which the Executing Court was directed to exercise its discretion and pass necessary order after providing proper opportunity of hearing to the parties. Pursuant to the said liberty given to the petitioners, an application was filed before the said Court for appointment of Survey Knowing Pleader Commissioner for which the consent of decree holders was also there so as to carve out the suit property, however, the Pleader Commissioner without properly carving out the same has submitted erroneous report before the Executing Court, as a result of which the suit property cannot be properly separated from the property owned by the petitioners.

(3.) It is further submitted that the report of the Survey Knowing Pleader Commissioner dtd. 29/4/2019 submitted before the Executing Court is not correct and the same contains various mistakes with regard to location of the suit property. There is no "Gali" towards northern side of the suit property as has been mentioned in the report. In fact, on the northern side of the suit property there is a shop, which is in occupation of the judgment debtors along with other shop premises in the southern side. The alleged "Gali" which has been mentioned in the report of the Pleader Commissioner as also shown in the map drawn by him, there is a shop in eastern side, facing G.T. Road and the same is in occupation of one Raju Sao, whereas in western side there is a shop of judgment debtors, adjacent to the boundary of which (towards west) there situates Baliapur Road. There cannot be any dispute that there is no Gali towards northern side of the suit property and the said finding given in the report of the Pleader Commissioner is influenced by the decree holders. It is further submitted that Schedule-A property is not situated over plot nos.1959 and 1960, rather the same is situated over C.S. plot nos.1956 and 1957, which is the property of the judgment debtors/petitioners.