Shiv Chandra Purvey and Another vs The State of Bihar and Others

Mridula Mishra, J.—Heard Learned Counsel for the petitioners and the counsel appearing for the respondent No. 6. This application has been filed by the petitioners for quashing the order dated 3.7.2002, passed by the Subdivisional Officer, Jhanjharpur in Misc. Case No. 1/ 2002. This Misc. case was initiated on an application filed by the petitioners themselves with a prayer that the boundary of Plot Nos. 1213, 1214 and 1219 should be demarcated on the basis of the possession of the parties taking into consideration the judgment and decree passed in Title Suit No. 8/57, Title Appeal No. 195 of 1958, Title Suit No. 25 of 1986 as well as Title Appeal No. 75 of 1996 of 2002.

By the impugned order the S.D.O. Jhanjharpur taking into consideration the judgment and decree passed in different suits and appeals has directed to demarcate the land under dispute on the basis of the possession of the parties as well as the finding recorded in the title suit. Since the petitioners did not succeed in their plan they have filed this writ application. Petitioners have challenged this order on the ground that even if the petitioners wrongly invoked the jurisdiction by filing their case, the S.D.O. cannot be vested with the power of executing court merely by filing an application by the petitioners. The order impugned indicates that the S.D.O. has exercised jurisdiction of an executing court and has executed the order passed by the civil court in the title suits and appeals.

Respondent No. 6 has filed a counter affidavit and it has been submitted that the petitioners themselves got initiated this proceeding and participated throughout the proceeding. The measurement was done in his presence which has been signed by them. This application has been filed by the petitioners only because the impugned order was not passed according to their choice and according to their plan. It has further been submitted that the S.D.O. has not acted as an executing court. The S.D.O. has simply demarcated the land on the basis of the possession of the parties for which the S.D.O. has got jurisdiction.

Considering the fact that the petitioners themselves have originated this proceeding, I do not find that the S.D.O. has acted as an executing court. From his order it transpires that he simply passed an order of demarcation on the basis of the possession of the parties as decided by the civil court. No where it has been mentioned by the civil court that the decree passed by the civil court in different titles suits or appeals is being executed by him. Simply he verified the correctness of the possession of the parties from the judgment and decree passed in the title suits and title appeals. Accordingly I do not find any illegality in the order. Since the petitioners have not come before this Court with clean hands, his prayer cannot be entertained. Accordingly this application is dismissed.