DINESWARI KALWAR AND ORS. Vs. GANESH CHANDRA DUTTA

JUDGEMENT

(1.) By filing this application under Article 227 of the Constitution of India, the petitioners herein have challenged the legality and validity of the order dated 22.01.2015 passed by learned Munsiff, Titabar in Misc. (J) Case No. 3/2015 whereby the learned court directed the parties to maintain status quo with respect to the land involved in Title Execution No. 6/2014 the schedule of which is furnished below:-

(2.) To understand the basic point for adjudication in the present case, it is necessary to have a view of the background facts of the dispute. The sole opposite party, as plaintiff, instituted Title Suit No. 13/1985 in the Court of learned Munsiff No. 1 at Jorhat praying for a decree for declaration of his right, title and interest and recovery of possession by evicting the defendants therein from the suit land measuring 5 lechas covered by Dag No. 1420 out of 10 lechas of land of the said Dag of P.P. No. 18 of Titabar Town, Amguri Kharikatia mouza. In the said case the plaintiff also made a prayer for eviction of 8 (eight) defendants alleging them to be trespassers. The learned trial court by judgment and decree dated 22.11.1988 decreed the suit against which the defendants preferred title appeal No. 1/1989 in the court of learned Civil Judge at Jorhat. The learned first appellate court allowed the appeal and remanded the matter to the trial court by his judgment and decree dated 18.01.1996. Upon remand, the learned Munsiff dismissed the suit by his judgment and decree dated 22.11.1996. Aggrieved, the plaintiff preferred title appeal No. 2/1997 in the court of learned Civil Judge, Jorhat and the same was allowed by the learned first appellate court on 01.09.2000 and the suit was decreed. The defendants thereafter preferred regular second appeal being R.S.A. No. 15/2001 before this court challenging the appellate judgment and decree dated 01.09.2000 and this Court by judgment and decree dated 11.06.2013 allowed the second appeal and remanded the matter to the learned first appellate court to decide the matter afresh in view of the observations made therein. Accordingly, the learned first appellate court by judgment and decree dated 30.11.2013 dismissed the appeal and in the process, the judgment of dismissal passed by the learned trial court was upheld. This order of dismissal by the learned first appellate court on 30.11.2013 has not been challenged before this court by filing any second appeal and the matter attained finality.

(3.) After the suit of the plaintiff for declaration of right, title and interest and recovery of possession was dismissed and the ultimate appeal preferred there- against had also failed, the plaintiff, Ganesh Chandra Dutta appears to have abandoned his claim and did not institute any other proceeding. But the defendants who had neither preferred any counter claim nor did they institute any suit and did not have a decree in their favour, they filed an execution proceeding being T.Ex. No. 6/2014 in the court of learned Munsiff at Titabar and the learned Executing court failing to notice that there was no decree to be executed issued direction for execution of the decree. By drawing attention of the court to an order dated 15.12.2014 passed by the learned Executing court in T.Ex. No. 6/2014, the learned counsel for the petitioner herein (the defendants of T.S. No. 13/1985) Mr. M.U. Mahmud submits that the decree was satisfied and thereupon the execution case was disposed of by the learned Munsiff. Thereafter the plaintiff filed an application under Section 47 read with section 151 of the Code of Civil Procedure before the same executing court on 22.01.2015 and this application was numbered as Misc. (J) Case No. 2/2015. By this application the plaintiff of T.S. No. 13/1985 prayed that the opposite parties, meaning thereby the defendants of T.S. No. 13/1985 be directed to vacate and handover peaceful possession of the schedule A land to him and also to grant cost and compensation. The plaintiff also filed another application under section 151 praying for prohibitory order during pendency of the proceeding under Section 47 C.P.C. so as to restrain the opposite parties therein and their men and agents from disturbing status quo with respect to the schedule A property. The schedule A described in Misc. (J) Case No. 2/2015 is quoted below:-