IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.63 of 1997 1. Punit Giri son of Ganesh Giri, resident of village Chhatwa Kala, Pergana Bal, P.O. and P.S. Baniapur, District Saran. ……Defendant no.1-Appellant -Appellant. Versus 1(A) Uma Shankar Giri S/o Ram Sagar Giri 2. Sachita Nand Giri son of Jamuna Giri 3. Sawalia Giri 4. Ramdeo Giri 5. Panna Lal Giri 6. Satyadeo Giri Nos.3 to 6 sons of Sarwarath Giri 7. Kamla Giri son of Banaras Giri 8. Ram Niwas Giri son of Baldeo Giri by profession cultivation, resident of village Chhatwa Kala Pergana Bal, P.O. and P.S. Baniapur, District Saran. 9. Lal Mati Kuer W/o Swarath Giri (deceased) 10. Binda Devi D/o Banaras Giri (deceased) 11. Prabhawati Kuer W/o Rama Nand Giri (deceased) 12. Rakesh Giri son of Rama Nand Giri (deceased) by profession Cultivation, resident of village Chhatwa Kala Pergana Bal, P.S. and P.O. Baniapur, District Saran. ……..Plaintiffs-Respondents-Respondents 1st set. 13. Phulena Giri 14. Pulis Giri 15. Sipahi Giri Sons of Payesh Giri 16. Shambhu Giri 17. Awadhesh Giri Sons of Parmeshwar Giri 18. Jhalakia Kuar W/o Parmeshwar Giri 19. Shanti Devi 20. Manki Devi 21. Kanti Devi Daughters of Rajeshwar Giri 22. Arti Kumar daughter of Parmeshwar Giri 23. Tetari Kuer W/o Rajeshwar Giri All resident of village Chhatwa Kala, Pergana Bal, P.O. and P.S. Baniapur, District Saran. ……..Defendants-Appellants-Respondents 2nd set. 2 For the appellants : Mr. Ramehswar Nath Rai, Sr. Advocate with Mr. Prabhakar Nath Rai, Advocate. For the respondents 1st set : Mr.Sashi Shekhar Dwevedi, Sr. Advocate with M/s Basant Kumar Singh, S.Kumar Singh and Harishankar Ray, Advocates. ----------- 15/ 10.03.2010 Heard learned counsel for the appellant and learned counsel for the respondents 1st set. 2. This second appeal has been filed by defendant no.1- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.08 of 1985 which was filed by the plaintiffs-respondents-respondents 1st set for declaration that the entire proceeding of Execution Case No.05 of 1976 in the court of Additional Subordinate Judge-II, Chapra regarding Schedule-I land was invalid, nullity and without jurisdiction and for other ancillary reliefs. The suit was decreed on contest by the learned Subordinate Judge-IV, Chapra vide his judgment and decree dated 31.07.1995. 4. Against the aforesaid judgment and decree of the trial court the defendants filed Title Appeal No.43 of 1995(01/1996) which was dismissed on contest by the learned Additional District Judge-II, Sasran vide his judgment and decree dated 17.10.1996. Against the aforesaid judgments and decree of the learned courts below the instant second appeal has been filed. 5. Although learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the 3 learned courts below, but from the averments of the parties as well as the materials on record, it is quite apparent that the judgment and decree dated 26.07.1947 passed in Title Suit No.95 of 1945 was merely declaratory in nature and there was nothing to be executed and hence Execution Case No.05 of 1976 filed for execution of the said decree was absolutely frivolous and illegal and the executing court had no jurisdiction to give delivery of possession to anyone including the alleged next reversioners. 6. Both the learned courts below very carefully considered the pleadings and evidence of the parties and came to specific findings that Execution Case No.05 of 1976 was beyond the period of limitation and since the decree was not for delivery of possession, the executing court was not competent to give delivery of possession to anyone on its basis. It was also found that the records showed that the said fact was not brought to the notice of the executing court and hence a fraud was played not only upon the other side but also on the executing court and thus the alleged execution was beyond the decree in the year 1976 and was clearly bad in law. 7. The learned courts below further found that the defendants had no right to take delivery of possession in the aforesaid execution case on 09.11.1976 and from the evidence on record it was quite apparent that delivery of possession was in fact never taken or given on the spot. It was also concurrently found that the defendants had failed to establish that they were in 4 possession over any of the suit plot and hence the present suit was not hit by the provision of section 34 of the Specific Relief Act also. 8. So far the question of reversioners is concerned, no appropriate relief having been sought in the earlier Title Suit No.95 of 1945 and no decree with respect thereto having been passed, the entire proceeding of the execution case was clearly illegal and without jurisdiction. 9. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )