Appointment of Patwari for demarcation of boundary in the interest of justice

Vandana Kasrekar, J.

The petitioners have filed the present revision challenging the order dated 16/12/2013 passed by District Judge, Shahdol in Execution Case No. 47/2010.

2. Respondent No. 1 has filed a civil suit against respondent No. 2 for declaration of title permanent injunction as well as possession in respect of land ad-measuring to 86 x 45 sq.ft. The said civil suit was decreed by the trial Court vide judgment and decree dated 18/12/1997 against which an appeal was preferred by respondent No. 1 before this Court but the same was also dismissed and Special Leave Petition was preferred before the Supreme Court, however, the same was also dismissed. Respondent No. 1 thereafter initiated execution proceeding against respondent No. 2 and in the garb of the said decree, respondent No. 1 made an attempt to take possession of the house and the property of the objectors. The objectors, therefore, filed an application under Order 21, Rule 97 99 of CPC before the Executing Court. The application was dismissed vide order dated 11/3/2010. Against the said order, First Appeal No. 212/2010 was filed but the same was also dismissed by this Court vide judgment dated 3/2/2011. Review petition was preferred and the same was also dismissed. After dismissal of the first appeal by this Court, execution proceeding again started and the objector filed objection under Section 151 of CPC for appointment of the Commissioner so that he may demarcate the land either through himself or through Patwari so that the property involved may be identified properly. The respondents have filed their reply to the said application.

3. The trial Court vide order dated 9/10/2012 has allowed the said application and directed for issuance of warrant of possession which was to be executed in presence of Patwari. On 6/11/2012 in presence of Patwari and some respectable persons, the land was demarcated and the possession was delivered to the decree-holder. The land in dispute was shown to him and it was informed to him that he is in possession of the some part of the land. The decree-holder refused to take possession of the land which was shown to him and he left the spot. The objector thereafter again filed an application on 8/1/2013 under Section 151 of CPC before District Judge stating that as the decree-holder has refused to take possession of the property in dispute, therefore, executing proceeding be dropped.

4. The trial Court vide its order dated 9/10/2012 has allowed the said application and no appeal, revision or any proceeding was filed against the said order, thus, the order dated 9/10/2012 attained its finality.

5. From perusal of the order, it is clear that application which was filed by the petitioners under Section 151 of CPC was pending consideration before the trial Court. On 23/7/2013 Executing Court heard the argument and passed an order dated 7/9/2013 for issuance of warrant of possession on payment of process fee. Being aggrieved by the order dated 7/9/2013 the petitioners have filed Writ Petition No. 13509/2013 before this Court. The said writ petition was disposed of vide order dated 2/8/2013 directing the District Judge to decide the application of the petitioners/objectors filed under Section 151 of CPC on its own merit.

6. Vide order dated 16/12/2013 District Judge rejected the said application on the ground that the first appeal preferred by the objector was dismissed and review petition was also dismissed, therefore, no opportunity of hearing is required to be extended to the objector and also issued direction for issuance of warrant of possession.

7. Being aggrieved by the said order, the petitioners have filed Writ Petition No. 22092/2013 which was subsequently converted into the present civil revision vide order dated 20/8/2013.

8. Learned senior counsel for the petitioners submits that from the report of Machkuri of the year 2006, it is clear that without help of Patwari, the land in dispute cannot be demarcated and the decree-holde