ORDER

Date : 25-02-2022 Heard the learned counsel Mr. A. Sarma for the petitioner as well as Mr. R. K. Bhuyan for the respondent.

This is an application under Article 227 of the Constitution of India challenging the order dated 20.01.2020 passed by the Munsiff No. 1, Kamrup (M), Guwahati in Misc. (J) Case No.

395/2018 arising out of T. Ex. Case No. 04/2013.

The decree holder filed the suit T.S. 308/2009 against Smti. Bulan Bala Devi, her son Lakheswar Sarma and another person named Deba Kumar Das. The decree holder prayed before the court below for a decree declaring his right, title and interest upon a plot of land measuring

1.52 Are (described as Schedule-A in the plaint) covered by Dag No. 644 of K.P. Patta No. 209 along with an Assam Type House and structure consisting of seven rooms with separate latrine and bathroom. The Assam Type house in that land is described in the Schedule-B of the plaint.

The suit was decreed and execution proceeding was initiated.

The present petitioner who is a stranger to the suit staked a claim before the executing court stating that he had an agreement for sale with Deba Kumar Das in respect of a plot of land measuring 6 ½ lechas of land out of 13 lechas of land covered by Dag Nos. 69/644 and Patta No.

78/2009.

The petitioner claimed that Smti. Bulan Bala Devi had sold 13 lechas of land covered by Dag No. 69 of Patta No. 78 to Deba Kumar Das and out of the said 13 Lechas he purchased 6 ½ lechas.

It is an admitted fact that the petitioner was evicted from one room of the aforesaid Assam Type House in the connected execution proceeding. But the petitioner has insisted that since he has been in occupation of the land which he had purchased from Deba Kumar Das and since he is not bound by the decree that was passed in T.S. No. 308/2009, the decree cannot be executed against him, though he has been in occupation of a part of the decreetal land.

The decree holder filed an application, registered as Misc. (J) Case No. 395/2018, under Section 151 of the Civil Procedure alleging that the present petitioner has illegally occupied a portion of the Assam Type House, which is specifically described in the petition as Schedule-X and prayed for eviction of the petitioner therefrom.

On 19.11.2019, while considering the said prayer of the decree holder, the court below directed the Civil Nazir to undertake a local inspection to verify the allegation in respect of Schedule-B property. Thereafter, on 20.01.2020, the court below again passed a direction asking the Civil Nazir to verify the possession of the decree holder in respect of Schedule-X property, not the Schedule-B property.

I have given my anxious consideration to the submissions made by the learned counsels for the both sides.

So far as Schedule-X is concerned, it is a matter of nomenclature only. It has nothing to do with the merit of the matter. The Schedule-B property was described as Schedule-X property in the petition.

Be that as it may, it is apparent on the fact of the record that the petitioner had an agreement for sale with Deba Kumar Das in respect of a plot of land measuring 6 ½ lechas covered by Dag No. 69/644 and Patta No. 78/209 whereas Deba Kumar Das purchased 13 lechas of land covered by Dag No. 69 of Patta No. 78 from Bulan Bala Devi. Therefore, it is clear on the fact of the record that Deva Kumar Das did not have the power to enter into the agreement for sale in respect of land covered by Dag No. 644 and Patta No. 209, because he purchased land covered by Dag No. 69 and Patta No. 78.

Now, the petitioner has claimed that he has been in occupation of the said land that was transferred to him on the basis of an agreement for sale and he has constructed his dwelling house thereon.

From the materials available with the record, it is clear that the petitioner has been in occupation of the Assam Type House as mentioned hereinbefore and he has made a false claim of right on the basis of the agreement for sale. This court is constrained to hold that the peti