Failure to properly identify land before execution of decree can lead to wrongful dispossession. Appellants' claim limited to specific land described in Schedule-B and Schedule-C, not decretal land in Schedule-A.

1. Heard Mr. D.K. Daschoudhury, learned counsel appearing for the appellants as well as Mr. S. Mahajan, learned counsel appearing for the decree-holder, the respondent No.1. None appears for the remaining respondents, despite due notice from this court.

2. This is an appeal under Section 100 of the CPC against the judgment and order dated 08.01.2014, delivered in Civil Misc. Appeal No.01 of 2013 by the District Judge, South Tripura, Udaipur. By the said appeal, the order dated 03.06.2013 delivered in Civil Misc. 26 of 2011 [arising from T.S.EXE(T) 14 of 2011] by the Executing Court [the Civil Judge, Senior Division, South Tripura, Udaipur] was challenged and by the impugned order dated 08.01.2014, the first appellate court affirmed the said judgment dated 03.06.2013. This appeal was admitted on the following substantial question of law :

“When the report by the Survey Commissioner has observed that the decretal land cannot be identified by the description of the land as provided in the decree whether executing court was correct in allowing the execution of the decree by dispossessing the appellants from the land on the basis of the identification made by the decree holder?”

3. For purpose of appreciating the said substantial question as formulated by the order dated 28.07.2014, it would be apposite to lay down the essential fact leading to the impugned order. At the time of executing the decree, as obtained by the respondent No.1, it was the claim of the present appellants that they were evicted from their lawful possession. When they were evicted, they filed an application under Order 21, Rules 97 to 106 read with Section 144 and 151 of the CPC for setting aside the said execution and for restoration of their possession over the land as described in Schedule-B and Schedule-C of the said application.

4. According to the appellants, the Schedule-A land is the decretal land which is a distinct land from the land as described in the Schedule-B and the Schedule-C. The Schedule-A land pertains to C.S. plot No.141(p), hal plot No.3204 of RS khatian No.975 measuring 0.20 acre under mouja R.K. pur RF. But the appellants have been dispossessed while executing the said decree as passed in T.S. 48 of 2009 vide execution case No.EXE(T) 14 of 2011 from their possession over the land pertaining to plots No.1411 (p) and 1548 (p) corresponding to RS plot No.3261/3756 of khatian No.7321/1 under mouja R.K.pur RF measuring 0.06 acre [so far the appellants No.1 and 2 are concerned] and 0.08 acre [so far the appellants No. 3 and 5 are concerned]. Similarly, the appellant No.4 has been dispossessed. According to the appellant No.4, from his allotted land pertaining to C.S. plots No.B/45, 1411/1548(p) corresponding to RS plots No.3261/3557/5174 measuring 0.05 acre under mouja R.K. pur RF he has been dispossessed. The said land was allotted to him by the allotment case No.21 of 1997.

5. The appellants in their said application had stated that they were illegally dis-possessed from the said land on 16.12.2011 by demolishing their home stead, huts etc. Therefore, they have claimed the loss and damages to the extent of Rs.1,75,000/- so far the appellant No.1 is concerned, Rs.75,000/- so far the appellant No.2 is concerned, Rs.1,00,000/- so far the appellant Nos. 3 and 4 is concerned and Rs.50,000/- so far the appellant No.5 is concerned. Before the decree was executed, according to the appellants two Survey Commissions were appointed. Since the second Survey Commission was appointed, the report of the first Survey Commission was suppressed and declared not accepted by the Executing Court. The second Survey Commission’s report was submitted on 17.12.2011.

6. According to the appellants, they were dispossessed evicted from their land as described in the Schedule-B and the Schedule-C on 16.12.2011 and thereafter, on 20.12.2011 when the order of execution under Section 50 was passed in the said execution case on 15.05.2012, according to them, th