Jharkhand High Court
Tara Devi vs Draupadi Devi on 9 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 66 of 2024
Tara Devi, aged about 50 years, wife of Vijay Upadhyay, daughter of
late Sukhdeo Pandey, resident of village Nagwan, P.O. Chatra, P.S.
Sadar, District-Chatra
..... Petitioner
Versus
1. Draupadi Devi, aged about 82' years wife of late Gopal Prasad.
(2). Arjun Prasad aged about 62 years son of late Gopal Prasad.
(3) Ashok kumar aged 56 years son of late Gopal Prasad.
(4) Anil kumar aged 24 years son of late Gopal Prasad.
(5) Smt. Savitri devi aged 60 years daughter of late Gopal Prasad.
(6) Shila devi aged 22 years daughter of late Gopal Prasad.
(7) Sidhu devi aged 50 years daughter of late Gopal Prasad.
(8) Smt. Binda devi aged 48 years daughter of late Gopal Prasad.
All resident at marwari mohalla, P.O. and P.S sadar Dist chatra
(9) Satya Narayan pandey aged 50 years son of late Sukhdev
Pandey
(10) Ashok Pandey @sanjay pandey aged 49 years son of late
Sukhdev Pandey.
(11) Poonam devi aged 47 years wife of Saroj Pandey
(12) Kanchan kumari aged 15 years (minor)
(13) Archana kumari aged 13 years (minor)
(14) Kali Kumar aged 11 years (minor)
(15) Muniya rani aged 9 years (minor) all minor daughter of late
Saroj Pandey represented through the natural guardian their
mother Poonam devi.
(16) Gyatri Devi aged 47 years daughter of late Sukhdev Pandey
(17) Awadh Bihari Tiwari aged 54 years resident at Sharma bazaar
P.S Barachatti dist. Gaya Bihar at present resident at Nagwan ward
1
no. 09 P.O Chatra P.S sadar dist. Chatra
(18) Bibi Rehana Khatoon aged 62 years wife of Md. Reyasat miyan
(19) Mahendra Prsada singh aged 56 years son of babu Lalo Singh
both resident at chatra P.O + P.S chatra dist. Chatra
(20) Binod Sahu aged 48 years son of shree bandhan sahu resident
of vill. Lutidih P.O and P.S Simariya Dist, chatra
(21) Pradeep kuamr singh aged 47 years son of Gopal Singh
resident of vill. Phulwariya P.S Tandwa Dist Chatra
...... Opposite Parties
----
CORAM: HON'BLE MR JUSTICE SANJAY KUMAR DWIVEDI, J.
—
For the Petitioner : Mr. H.K. Shikarwar, Advocate
For the O.P. Nos. 1 to 4 : Mr. Amar Kr. Sinha, Advocate
For the O.P. Nos. 20 and 21: M/s Rakhi Kumari and
Akanksha Basundhra Raje, Advocates
—-
10/09.01.2025 By order dated 03.05.2024 notices were directed
to be issued upon the opposite parties.
2. O.P. Nos. 1 to 4 and O.P. Nos. 20 and 21 have
appeared through their counsels by filing vakalatnama. Notice upon
O.P. Nos. 5 to 14 have been validly served. O.P. No.15 has left for
his heavenly abode. Notice upon O.P. Nos. 16 to 19 have not been
effected as yet and it was pointed out by the learned counsel for
the O.P. Nos. 1 to 4 that so far other opposite parties are
concerned, they are subsequent purchasers and O.P. Nos. 1 to 4 are
contesting parties and decree was in their favour and objection has
been filed by Tara Devi-petitioner. As such this petition is being
heard.
3. Heard Mr. H. K. Shikarwar, learned counsel for the
petitioner, Mr. Amar Kr. Sinha, learned counsel for the O.P Nos. 1 to
4 and Ms. Rakhi Kumari and Akanksha Basundhra Raje learned
counsel for the O.P. Nos. 20 and 21.
4. This petition has been filed under Article 227 of the
2
Constitution of India for quashing of the order dated 25.02.2022
passed in miscellaneous civil appeal no. 01 of 2022 by learned
District Judge, Chatra and also for quashing of the order dated
21.12.2021 passed by learned Sub-Judge-II, Chatra in
miscellaneous case no. 06 of 2020 arising out of execution case no.
02 of 2010.
5. Mr. H. K. Shikarwar, learned counsel for the petitioner
submits that one Draupadi Devi and others filed Title Suit No. 08 of
1994 before the Court of learned Sub-Judge-II, Chatra against the
father of the petitioner and others with a prayer for declaration of
right, title and interest and for recovery of possession. He further
submits that the said title suit was dismissed and against that the
plaintiffs have preferred title appeal being Title Appeal No. 44 of
2004 which was allowed by the order dated 22.02.2007 and the
decree was passed in favour of the O.P. Nos. 1 to 4. He further
submits that thereafter the plaintiff/appellant has filed Execution
Case No. 02 of 2010 wherein the petitioner was not made party in
the original suit as well as in the appeal. He then submits that even
in execution case the petitioner was not made party so the
petitioner filed Miscellaneous Case No. 06 of 2020 for stay of
Execution Case No. 02 of 2010 however, the learned court by order
dated 21.12.2021 has rejected the same. He further submits that
by order dated 25.02.2022 the Miscellaneous Civil Appeal No. 01 of
2022 was dismissed. He then submits that the petitioner is in
possession of the suit property. He further submits that both the
orders dated 21.12.2021 and 25.02.2022 are bad in law. He
submits that the learned courts have failed to appreciate that the
petitioner happened to be the daughter of late Sukhdeo Pandey
and she was not made party in both the proceedings and also in
execution case inspite of that impugned orders have been passed
which are against the mandate of law for that this petition has been
filed. On these grounds, he submits that impugned orders may
kindly be quashed.
6. On the other hand Mr. Amar Kr. Sinha, learned counsel
for the O.P. Nos. 1 to 4 submits that the petitioner happened to be
3
the daughter of defendant no.1 namely, Sukhdeo Pandey and her
father contested the suit as well as appeal and thereafter execution
case has been filed. He further submits that same objection was
earlier made in Civil Misc. Case No. 28 of 2018, Misc. Civil
Application No. 106 of 2018 and Misc. Civil Application No. 107 of
2018 which were rejected. He further submits that the said
appellate judgment was travelled to the High Court in S.A. No. 86 of
2007 filed by defendant no.1-Sukhdeo Pandey who happened to be
the father of the petitioner and the said Second Appeal was
dismissed by judgment dated 08.09.2022. In this background he
submits that petition under section 47 C.P.C. was also filed by the
petitioner in the execution case which was rejected by impugned
order dated 21.12.2021 against that appeal was filed which was
also dismissed by order dated 25.02.2022. He further submits that
there is no illegality in both the orders passed by the learned court
and only to linger the possession of decree holder this petition has
been filed. He further submits that for declaration of right, title and
interest the petitioner has filed Original Title Suit No. 130 of 2023
before learned Munsif, Chatra and in that case decree holder have
been made party and the matter is still sub judice. On these
grounds, he submits that there is no merit in the petition and this
petition may kindly be dismissed in view of the ratio of the Hon’ble
Supreme Court laid down in the case of ” Rahul S. Shah
Vs. Jinendra Kumar Gandhi and others” reported in 2021 4
Supreme 1.
7. Learned counsel for the O.P. Nos. 20 and 21 submits
that the O.P. Nos. 20 and 21 are subsequent purchaser and there is
no illegality in both the orders.
8. In view of above submissions of the learned counsel for
the parties the Court has gone through the materials on record as
well as impugned orders passed by the learned Court. In course of
argument, the argument advanced by Mr. Amar Kr. Sinha with
regard to earlier rejection petitions not disputed by the counsel of
the petitioner as it is not in dispute. Learned counsel for the
petitioner has only disputed that earlier the said rejection has been
4
made due to mismatch. Thus, it is an admitted position that earlier
Civil Misc. Case No. 28 of 2018, Misc. Civil Application No. 106 of
2018 and Misc. Civil Application No. 107 of 2018 have been filed
which were rejected against that no appeal was preferred. It is
further an admitted position that the father of the petitioner who
was contesting the suit as defendant no.1. Thus argument of the
learned counsel for the petitioner is erroneous with regard to the
fact that she was not made party either in the suit or in appeal as
well as in execution case. Further suit was dismissed against that
Title Appeal No. 44 of 2004 which was allowed by the order dated
22.02.2007 in favour of the appellant/plaintiff against that
defendant no.1 who is father of the petitioner has filed Second
Appeal No. 86 of 2007 before the High Court and the said Second
Appeal was dismissed by judgment dated 08.09.2022 by the High
Court. The petitioner has already filed objection under section 47 of
the C.P.C. in execution case and by the impugned order 21.12.2021
the said objection petition was dismissed and the learned court has
been pleased to hold that she is not having valid title and malafidely
the petition has been filed with intention just to put hindrance
against that appeal was preferred being Miscellaneous Civil Appeal
No. 01 of 2022 which was dismissed vide order dated 25.02.2022
and after elaborate discussion the appellate court has held that this
petitioner would not have better title than her father, who had no
valid right, title and possession over the suit land as he has not
produced the family tree authorized by government officials and
after 1922 the Khewatdar of land, Rupchand Pandey said to have
effected DP in execution case no. 102 of 1922-23 by the process of
law and thereby disposed his bakast land of kahta no. 70 in his life
time on 10.09.1921 and it has been found by the learned court
that there is no genuine cause to hold the execution process of the
decree passed in favour of the decree holder thereafter rejected the
misc. appeal. Both the Courts have given cogent reason. The other
opposite parties are subsequent purchasers of the land and decree
holder.
9. In the case of “Rahul S. Shah“(supra) relied by the
5
learned counsel for the petitioner in para 42 it has been held as
under:-
“42. All Courts dealing with suits and execution
proceedings shall mandatorily follow the below- mentioned
directions:
“1. In suits relating to delivery of possession,
the court must examine the parties to the suit under Order X in
relation to third.
2. Party interest and further exercise the power under
Order XI Rule 14 asking parties to disclose and produce documents,
upon oath, which are in possession of the parties including
declaration pertaining to third party interest in such properties.
3. In appropriate cases, where the possession is not in
dispute and not a question of fact for adjudication before the Court,
the Court may appoint Commissioner to assess the accurate
description and status of the property.
4. After examination of parties under Order X or
production of documents under Order XI or receipt of commission
report, the Court must add all necessary or proper parties to the suit,
so as to avoid multiplicity of proceedings and also make such joinder
of cause of action in the same suit.
5. Under Order XL Rule 1 of CPC, a Court Receiver can
be appointed to monitor the status of the property in question as
custodia legis for proper adjudication of the matter.
6. The Court must, before passing the decree,
pertaining to.
7. Delivery of possession of a property ensure that the
decree is unambiguous so as to not only contain clear description of
the property but also having regard to the status of the property.
8. In a money suit, the Court must invariably resort to
Order XXI Rule 11, ensuring immediate execution of decree for
payment of money on oral application.
9. In a suit for payment of money, before settlement
of issues, the defendant may be required to disclose his assets on
oath, to the extent that he is being made liable in a suit. The Court
may further, at any stage, in appropriate cases during the pendency
of suit, using powers under Section 151 CPC, demand security to
ensure satisfaction of any decree.
10. The Court exercising jurisdiction under Section 47
or under Order XXI of CPC, must not issue notice on an application of
third-party claiming rights in a should refrain from entertaining any
such applications that has already been considered by the mechanical
manner. Further, the Court while adjudicating the suit or which raises
any such issue which otherwise could have been raised and
determined during adjudication of suit if due diligence was exercised
by the applicant.
11. The Court should allow taking of evidence during
the execution proceedings only in exceptional and rare cases where
the question of fact could not be decided by resorting to any other
expeditious method like appointment of Commissioner or calling for
electronic materials including photographs or video with affidavits.
12 The Court must in appropriate cases where it finds
the objection or resistance or claim to be frivolous or mala-fide,
resort to Sub-Rule (2) of Rule 98 of Order XXI as well as grant6
compensatory costs in accordance with Section 35A.
13. Under section 60 of CPC the term “in name of the
judgment debtor or by another person in trust for him or on his
behalf” should be read liberally to incorporate any other person from
whom he may have the ability to derive share, profit or property.
The Executing Court must dispose of the Execution
Proceedings within six months from the date of filing, which may be
extended only by recording reasons in writing for such delay.
15. The Executing Court may on satisfaction of the
fact that it is not possible to execute the decree without police
assistance, direct the concerned Police Station to provide police
assistance to such officials who are working towards execution of the
decree. Further, in case an offence against the public servant while
discharging his duties is brought to the knowledge of the Court, the
same must be dealt stringently in accordance with law.
16. The Judicial Academies must prepare manuals and
ensure continuous training through appropriate mediums to the Court
personnel/staff executing the warrants, carrying out attachment and
sale and any other official duties for executing orders issued by the
Executing Courts.”
10. In view of above judgment it has been held by the
Hon’ble Supreme Court that the Court has to appreciate the
objection or resistance or claim to be frivolous or malafide, resort to
Sub-Rule (2) of Rule 98 of Order XXI as well as grant compensatory
costs in accordance with Section 35A.
11. In this background what has been discussed
hereinabove, it transpires that frivolously this petition has been filed
that too when title suit with regard to same property in Original
Title Suit No. 130 of 2023 in which other opposite parties are made
defendants which is still pending.
12. In view of above facts, reasons and analysis there is no
merit in this petition. Accordingly, this petition is dismissed. Pending
I.A. if any, stands disposed of.
( Sanjay Kumar Dwivedi, J)
Satyarthi/A.F.R.
7