GHANASHYAM PRADHAN Vs. RAM PRATAP KHENRIA

JUDGEMENT

(1.) In the present Writ Appeal, the appellants, who were defendants before the trial Court challenge the correctness of the order dated 21.07.2011 passed by the learned Single Judge of this Court in W.P.(C) No.21538 of 2010, wherein the learned Single Judge has directed the trial Court to incorporate the boundary of schedule B property in the decree and further directed the Executing Court to execute the amended decree though such a prayer has not been made in the writ petition filed by the present appellants.

(2.) Case of the appellants in a nutshell is that respondent No.1 filed one declaratory suit bearing T.S. No.59/83 claiming right, title and interest over the disputed land and praying for recovery of possession of the same. In the said suit, judgment was passed by the Trial Court on 23.12.1998 decreeing the suit and the decree of the trial Court was drawn on 23.01.1999. The present appellants challenged the judgment of the trial Court in T.A. No.8/7 of 2002/99 before the learned District Judge which was dismissed vide judgment dated 17.07.2002. The defendantsappellants carried the matter to this Court in Second Appeal, which was registered as RSA No.118 of 2002. In RSA No.118 of 2002, there was serious contest between both parties and various interim applications including appointment of receiver with regard to suit property were filed and various interim orders were also passed by the Court from time to time. This Court vide order dated 24.11.2006 passed an order appointing receiver and directing identification of the case land. Direction was also given to the Tahasildar and the Executive Engineer (R & B), Bhubaneswar to identify the land on the strength of Sabik ROR and Sabik map, but not on any other document. Subsequently, the defendants-appellants upon legal advice withdrew RSA No.118 of 2002 with a bona fide impression that if an appropriate petition is filed before the Executing Court that would protect their interest and execution case would be dropped. But, the Executing Court did not consider the main point touching the identity of the land and rejected the legal submission of the appellants and proceeded further with the Execution Case vide order dated 13.04.2010. Being aggrieved by the order of the Executing Court dated 13.04.2010, CRP was preferred by the appellants before the learned District Judge, Khurda at Bhubaneswar and the learned District Judge also upheld the order of the learned Executing Court. Being aggrieved, the defendantappellants filed a writ petition bearing W.P.(C) No.21538 of 2010 assailing the orders passed by the Executing Court and the Revisional Court. This Court vide judgment dated 21.07.2011 passed in W.P.(C) No.21538 of 2010 directed the trial Court, who passed the decree for correction of the decree by inserting the boundary and also directed the Executing Court to proceed with the Execution Case for delivery of possession of the Schedule B property to the decree-holder by getting the same measured as per the boundary according to correction of the decree. Hence, the present appeal.

(3.) Mr. Mahitosh Sinha, learned counsel appearing on behalf of the appellants submitted that the impugned judgment of the learned Single Judge directing correction/amendment of the decree by incorporating the boundary of the suit plot in the decree after a lapse of more than 12 years is not sustainable in law. There was no motion at any point of time by the plaintiff to incorporate the boundary in the decree passed by the learned trial court even though series of litigations arising out of the self same suit are being fought by the parties. By virtue of the inherent powers, conferred u/s. 151, CPC, it cannot be deemed that a decree can be corrected after a lapse of more than 12 years when a substantial right has already accrued in favour of the judgment debtors. The main crux of the litigation hinges upon the identification of the suit land and the plaintiff by giving a wrong description of his purchased land is bent upon to grab the land of defendants 1 to 3 which they are possessing since 1967 and have made improvement over the land by spending huge amount of money. They have also constructed residential houses and shop rooms on the said land. Faced with the difficulty to get the suit land identified, various exercises have been made for such identification including taking the assistance of Tahasildar and Executive Engineer (R&B), Bhubaneswar. There are clear judicial orders passed in the connected Second Appeal (RSA No. 118/2002) from time to time showing that the land is not identifiable. This Court while considering the case of the respective parties made an observation that in order to identify the suit land, two documents are very much vital i.e. the Sabik R.O.R. and Sabik Map, and the Hal map is to be kept out of consideration for identification of the land. During that point of time, question of correction of decree was never urged by the plaintiff. After more than 12 years when a substantive right has already accrued and vested in Defendants 1 to 3, their such right cannot be affected in the greater interest of justice, equity and good conscience.