1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.424/2009 City and Industrial Development Corporation of Maharashtra Through its Administrator CIDCO, Aurangabad. .. PETITIONER [ORIG.JUDGMENT DEBTOR] VERSUS 1] Smt.Sushilabai W/o Kishanrao Khatri age 65 years , Occ-Household R/o Dalalwadi, Aurangabad Now residing at Arihant Nagar C-3, Aurangabad 2] Special Land Acquisition Officer Aurangabad. ..RESPONDENTS [ORIG.DECREE HOLDER] .... Shri A.S.Bajaj,Adv.for petitioner Shri T.Vinod,Advocate for respondent no.1 Shri D.R.Kale,AGP for Respondent no.2 .... 2 CORAM : R.K.DESHPANDE,J. DATE : 12/7/2010. ORAL JUDGMENT: 1] This Writ Petition is filed by the judgment-debtor, challenging the order dated 20/11/2008 passed below Exh.67 and 71 filed by the petitioner in Regular Darkhast No.155/2001. Exh.67 was filed by the petitioner raising objection to the executability of the decree, whereas, Exh.71 was filed for framing the issues and permission to lead evidence, arising out of the objection raised by the petitioner to the executability of the decree. Both these applications are rejected by the learned 8th Joint Civil Judge, Junior Division, Aurangabad. Hence, the instant Writ Petition has been filed. 2] Notice in this matter was issued, in response to which, the learned counsel for the respondents have appeared. T he learned A.G.P. appears for respondent no.2. The learned counsel submits that matter can be finally decided at the stage of admission. Hence Rule. Rule returnable forthwith. Matter 3 is heard finally at length with the consent of the learned counsels of the parties. 3] The facts leading to the case are as under : The petitioner City and Industrial Development Corporation (CIDCO) is the acquiring body. The notifications for acquisition of land survey no.197/7 and Survey No.178 of village Harsul, Tq. & Dist.Aurangabad were published on 4/10/1973 in the Government Gazette. Pursuant to the two separate notifications, land acquisition proceedings were initiated and ultimately first Award was passed on 21/4/1975 in respect of acquisition of land Survey No.197/7. The second Award in respect of acquisition of Survey No.178 was passed on 31/10/1977. The compensation was also paid to the owners of the lands, which were acquired. 4] The respondent no.1 filed Regular Civil Suit No.311/1986 claiming a declaration that he is the owner and in possession of land Survey No.197 to the extent of 20 Gunthas as described in 4 paragraph No.1 and demarcated in the map annexed to the plaint by red pencil. Further permanent injunction was claimed to restrain the defendants from interfering with the possession of the plaintiff. The petitioner CIDCO was the only defendant in the said Civil Suit. The petitioner filed its written statement dated 17/6/1986 in response to the notice of Regular Civil Suit No.311/86. The stand of the petitioner CIDCO was that the entire Survey No.197 of village Harsul has been acquired. The Award was passed on 29/3/1976. The compensation was paid to the owners of the said land and possession of the land was taken on 31/3/1976. The claim was opposed. However, it seems that after filing of the written statement, there was no participation in the proceedings, by the petitioner CIDCO. 5] None appeared for the petitioner-CIDCO, nor any evidence was led and hence, the Court proceeded with the matter. The evidence of the plaintiff was recorded and ultimately by judgment and order dated 28/6/1989, the III Joint Civil Judge, Junior Division, Aurangabad passed a decree in the said Suit in favour of the plaintiff. The plaintiff was declared 5 to be the owner of the 20 Gunthas land out of Survey No.197 of village Harsul, as was described in the plaint. It was held that the land was acquired by the State Government for the petitioner-CIDCO, excluding the portion of the plaintiff under sale deed Exh.31 of Survey No.197 and it was 20 Gunthas of land. It also observed that the Award disclosed that it was only for acquisition of 2 Acres and 31 Gunthas of land out of Survey No.197 of village Harsul. 6] Being aggrieved by the aforesaid judgment and decree passed by the trial Court, the petitioner-CIDCO preferred MARJI No.294/2008 alongwith application for condonation of delay caused in filing Appeal. The appellate Court rejected the application for condonation of delay, as a result of which, the Appeal also stood dismissed. The petitioner-CIDCO filed Second Appeal No.896/2008 before this Court. The Second Appeal was dismissed by this Court by order dated 4/9/2009. The petitioner has preferred SLP No.34897/2009, which is pending for adjudication before the Apex Court. It is informed by the learned counsel for the parties that the matter was listed 6 before the Apex Court and the same was adjourned on the ground that the present matter is coming up before this Court for admission and interim orders. Although no specific order is brought to my notice, the learned counsel for the parties informed that the S.L.P. has been adjourned, by informing that this Writ Petition is being decided. However, there is no other impediment in proceeding with this Writ Petition and the learned counsels for the parties informed that the present Petition can be decided. 7] The respondent no.1-plaintiff filed Regular Darkhast No. 155/2001 for execution of the decree passed in Regular Civil Suit No.311/1986 decided on 28/6/1989 and operative part of it is reproduced below : “ The suit of the plaintiff is decreed exparte. It is declared that the plaintiff is ower of 20 Gunthas of survey No.197 of village Harsool boundaries are the same as mentioned in the prayer clause. Defendant either himself or through his subordinate or servant is 7 restrained, perpetually from interfering and possession of the plaintiff over the suit land, except in due course of law. Decree be drawn accordingly.” Although, a declaration was granted in the said Civil Suit that the plaintiff is the owner of 20 Gunthas of land Survey No. 197 of village Harsul as described in the plaint and the map, there was also a decree for permanent injunction passed restraining the petitioner-CIDCO from interfering with the possession of the plaintiff over the suit land. It was alleged that the petitioner-CIDCO is trying to commit breach of a decree for perpetual injunction passed by this Court and hence, the action for attachment, detention and award of compensation, as contemplated by Order XXI Rule 32 of the Code of Civil Procedure, should be initiated. The decree was passed on 28/6/1989 and execution was filed in 2001. This was pending from 2001. 8] On 26/9/2008, the petitioner CIDDO filed an Objection Exh.67. It was prayed in the said objection that the application for execution be dismissed and the decree being nullity, the execution petition be closed. It was further prayed that the 8 plaintiff having given false evidence in the Suit as well as in the present execution proceedings, criminal action under Sections 209, 210, 193 and 196 of Indian Penal Code be initiated against the decree holder, as she has played fraud on the Court while obtaining the decree. Alongwith this Objection, an application was filed, which was Exh.71 for making an enquiry into the objection by framing issues and permitting the parties to lead evidence. 9] The Executing Court by its order dated 20/11/2008, dismissed both these applications filed by the petitioner CIDCO and decided to proceed further with the matter. It has been held that the decree has been passed in Regular Civil Suit No. 311/1986 granting declaration that the plaintiff is the owner of 20 Gunthas of land out of Survey No.197 of village Harsul and the Executing Court cannot go behind the said decree. It has further been held that what fraud has been committed by the decree holder upon the Court is also not specifically pleaded. The decision of the Apex Court reported in AIR 1994 S.C. 853 relied upon by the petitioner was held to be not applicable to 9 the facts of the case, on the ground that it pertains only to withholding of vital documents relevant to the litigation. It was held that all points should have been agitated in the Appeal challenging decree. This order dated 20/11/2008 is the subject matter of the challenge in this Petition. 10] Shri A.S.Bajaj, the learned counsel appearing for the petitioner CIDCO has raised the several points : [1] That the decree passed on 20/6/1989 dated in Regular Civil Suit No. 311/86 was obtained by the plaintiff by practicing fraud. The fraud according to him, is that the plaintiff has misrepresented that she is the owner of Survey No.197 only, whereas the plaintiff is the owner of Survey No.197 and Survey No.178 both, in terms of the sale deed dated 18/7/1974. [2] That the plaintiff has also misrepresented the Court that entire land Survey No.197/7 has not been acquired but the acquisition is only to the extent of 1 Hectare and 26 Aar (3 Acres and 6 Gunthas) leaving 20 Gunthas of land out of acquisition. He further submits that the acquisition in question by issuing 2 separate Notifications dated 4/10/1973 was for acquiring entire 10 Survey No.197/7 as well as Survey No.178 and no portion of the aforesaid two Survey Numbers were left out of acquisition. [3] That the dispute which the plaintiff had raised in the suit pertained to the measurement and the title of the lands which could have been raised only in the proceedings under Section 18 of the Land Acquisition Act or under Section 30 of the Land Acquisition Act. According to him, when the authorities under Section 18 and 30 of the Act are conferred with the jurisdiction to decide the question of measurement and the title, there is an implied bar of the jurisdiction of the Civil Court to deal with both these aspects of the matter. 11] Shri T. Vinod, the learned counsel apparing for the respondent no.1-plaintiff has supported the order impugned in this Petition. He submits that the Suit was filed in the year 1986. The petitioner CIDCO was defendant and filed its written statement on 7/6/1986 and none of the grounds, which are now sought to be raised, were raised in the written statement. It was not the plea raised in written statement that the land admeasuring 20 Gunthas was not excluded from acquisition of 11 Survey No.197/7. According to him, the trial Court framed the issues, the plaintiff has led evidence and established the claim. Accordingly, the trial Court has passed decree, which has attained finality. The Second Appeal filed in this Court has been dismissed on 4/9/2009 and hence, the executing Court was right in holding that it cannot go behind the decree passed by the trial Court. He further submits that the execution proceedings were filed in the year 2001. The petitioner CIDCO participated in the proceedings, and it is for the first time that such an objection has been raised on 26/9/2008 by way of Exh. 63. He further submits that any challenge to the decree or the findings recorded therein on the ground that it is wrong, incorrect, irregular and that it is not in accordance with law, cannot be raised in execution proceedings. 12] Bare perusal of land acquisition Awards dated 22/4/1975 and 31/10/1977 in respect of land Survey Nos.197/7 and 178 respectively of village Harson, Dist.Aurangabad indicate that Survey No.197/7 admeasures 2 Acres and 31 Gunthas (1 Hectare and 12 Aar) whereas Survey No.178 admeasures 11 12 Acres and 12 Gunthas. In respect of entire Survey No.197/7 and 0.5 Gunthas of land Survey No.178/4, which is part and parcel of Survey No.178, it is the Suyog Grih Nirman Cooperative Housing Society, which is shown to be the owner. The plaintiff (respondent herein) has purchased land Survey No.197/7 and 178/4 from Suyog Grih Nirman Cooperative Housing Society by registered sale deed dated 18/7/1974. There was no serious dispute about the ownership of Survey Nos.197/7 and 178/4. The entire amount of compensation for acquisition of Survey No.197/7 and 178/4 has been paid and no dispute was raised by the plaintiff for apportionment of compensation as contemplated by Section 30 of the Land Acquisition Act. 13] In the said background, Regular Civil Suit No.311/86 was filed by the plaintiff claiming the reliefs as under : “A] It be declared that the plaintiff is owner in possession of the land S.No.197 to the extent of 20 Gunthas as described in all materials particulars and details in paragraph no.1 13 and in the map annexed with the sale deed in red pencil. B] The defendant be ordered and decreed to be clamed with restraint perpetually from interfering and disturbing in the peaceful possession and enjoyment of the plaintiff on the land described in para 1 of the plaint and from causing any mark out in the said land and from divesting the title or interest in the said land in favour of any person either by way of sale, or lease or under any mode of transfer of property or otherwise. C] The defendant be ordered and decreed to pay to the plaintiff costs of the suit and bear their own. D] Any other relief to which the Plaintiff is found entitled, circumstances of the case permits and this Hon’ble Court deems fit to be awarded, be awarded as per Law and oblige. The plaintiff alleged in the plaint that he acquired ownership of land admeasuring 20 Gunthas out of Survey No. 197 by registered sale deed dated 18/7/1974. He further alleged that the mutation entry was also effected on 16/7/1979 bearing No.2043 in respect of Survey No.197 which admeasures 3 Acres and 6 Gunthas ( 1 Hectare and 26 Aar). It seems that the plaintiff had come before the Court with a plea that he has purchased only 20 Gunthas of land out of Survey 14 No.197/7. The plaintiff alleges in para 5 of the plaint as under : “5] Immediately after the said enquiry and the fact revealed to the plaintiff she approached to her Vendor and enquired with the Promoter of the the proposed society as to how they have lost the title in the land retained by the Society. It is further revealed that the said society on negotiation agreed to transfer the title in the said land in lieu; of some other land to be given to the said society by the Defendant. The plaintiff says that so far her knowledge goes there was no Notification in respect of the acquisition of the land acquired by the plaintiff nor there was any acquisition proceeding or award passed in respect of the said land purchased by the plaintiff. The plaintiff, therefore, says that she still enjoys the title in the said land and she is in peaceful possession and enjoyment of the same.” 15 The plaintiff expressed his apprehension about disturbance of her possession and hence the permanent injunction was claimed as above in the said Suit. 14] The trial Court in Regular Civil Suit no.311/86 held that the acquisition of land by the State Government was excluding 20 Gunthas of land purchased by the plaintiff under the sale deed Exh.31 in respect of Survey No.197. According to trial Court the land acquired was 2 Acres and 31 Gunthas out of Survey No.197 of village Harsul. On these findings, the suit was decreed as under : “ The suit of the plaintiff is decreed exparte. It is declared that the plaintiff is owner of 20 Gunthas of survey No.197 of village Harsool boundaries are the same as mentioned in the prayer clause. Defendant either himself or through his subordinate or servant is restrained, perpetually from interfering and possession of the plaintiff over the suit land, except in due course of law. Decree be drawn accordingly.” 15] I have gone through the objection raised in Exh.67 to the excutability of the decree by the petitioner-CIDCO in Regular Darkhast No.155/01. The objection raised is that the plaintiff 16 has purchased the land Survey Nos.197/7 and Survey No.178 from Suyog Grih Nirmam Cooperative Housing Society under the sale deed dated 18/7/1974. According to the petitioner objector, the land admeasuring 20 Gunthas in respect of which the decree has been passed in Regular Civil Suit No.311/68 consists of land admeasuring 0.15 Gunthas of land from Survey No.178 and 0.5 Gunthas of land from Survey No.197/7 and both these lands are adjacent to each other. It is urged that it is the Suyog Grih Nirman Co-op.Housing Society, which is shown to be the owner of the land. It is true that the dispute regarding ownership of plaintiff in respect of 20 Gunthas of land out of survey No.197 was raised by the petitioner/objector by filing written statement, and it was urged that the land Survey No.197 was acquired, however, the petitioner objector did not participate in the proceedings and the decree in Regular Civil Suit No.311/86 was passed exparte and it has attained finality. In my opinion, that by itself is not enough to prevent the petitioner/objector from raising any objection to the executability of the decree. 17 16] The decree passed by the trial Court in Regular Civil Suit No.311/1986 is based upon the finding that the land was acquired by the State Government for the petitioner-CIDCO excluding the portion of 20 Gunthas purchased by the plaintiff under Sale Deed Exh.31 of Survey No.197. The plaint allegation shows that the plaintiff claimed the ownership of land admeasuring 20 Gunthas out of Survey No.197, which according to him, admeasures 3 Acres and 6 Gunthas. The notification dated 4/10/1973 indicates that the acquisition of Survey No.197/7 is of 2 Acres and 31 Gunthas (1 Hectare 12 Aar) of land. Therefore, the question is what was the area of Survey No.197 or Survey No.197/7 whether it was 3 Acres and 6 Gunthas or 2 Acres 31 Gunthas. The objection at Exh.67 in Regular Darkhast No.155/2001 is that the plaintiff has misrepresented that she is the owner of Survey No.197 only, whereas, she is the owner of Survey No.197 and Survey No. 178/4 both, which were purchased under Sale Deed dated 18/7/1974, and are adjacent to each other. It is the further objection that Survey No.178/4 purchased by plaintiffs admeasures 0.5 Gunthas of land and the decree passed in 18 Regular Civil Suit No.311/86 includes 0.5 Gunthas of Survey No.178/4 which is misrepresented as part of Survey No.197/7. The objection is also that the entire land Survey Nos.197/7 and 178/4 owned by the plaintiff was acquired and no portion of the same was left out of acquisition. The objection is also that the 20 Gunthas of land consists of some portion of Survey No. 197/7 and 178/4. 17] Though the trial Court has recorded a finding in Regular Civil Suit No.311/1986, that the State Government has acquired the land Survey No.197 excluding 20 Gunthas of land owned by the plaintiff, such a finding cannot be recorded without measurement of lands Survey Nos.197 and 178/4. An enquiry is required to be made as to the exact area of Survey No.197 and 178 and the area of lands purchased by the plaintiff. The question is also required to be considered whether the Civil Court lacks inherent jurisdiction to record the finding that 20 Gunthas of land owned by the plaintiff was excluded from acquisition of Survey No.197 by the State Government, in view of the Provisions of Section 18 read with Section 30 of the Land 19 Acquisition Act. The question of decree obtained by misrepresentation or by concealment of relevant fact and also that of jurisdiction of Civil Court are in some manner interlinked. Whether the decree was obtained by misrepresentation or that the Civil Court’s jurisdiction to determine the question raised and involved in Regular Civil Suit No.311/86 was barred, are required to be decided in execution proceedings. If it is held that the decree was obtained by misrepresentation and fraud or that the Civil Court had no jurisdiction to pass such decree, then the decree would not be executable. The learned 8th Joint Civil Judge, Junior Division, Aurangabad was therefore, wrong in rejecting the objection Exh.67 and the application Exh.71 filed in Regular Darkhast No.155/2001. 18] In the result, this Petition succeeds. The order dated 20/11/2008 passed below Exhs.67 and 71 filed in Regular Darkhast No.155/2001 is hereby quashed and set aside. The application Exh.71 filed by petitioner is allowed. Rule is made 20 absolute in these terms. No order as to costs. [R.K.DESHPANDE,J.] umg/wp424-09 21