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Judgment
N.G. Das, J.—This application in Revision u/s 115 of CPC is directed against the order of learned Munsiff, Imphal West dated 12.9.1990 whereby the learned Munsiff dismissed the application of the Petitioners for execution of decree that was passed in suit No. O.S. 23 of 1979.
I have heard Mr. R.K. Nokulsana Singh, the learned Counsel appearing on behalf of the Petitioners and Mr. R.K. Sanajaoba Singh, the learned Counsel appearing on behalf of the Respondents.
The facts germane to the disposal of this application are that the Petitioners filed suit No. O.S. 23/1979 in representative capacity for restraining the Respondents herein from interfering with the use of the suit land (decretal land) measuring 7 acres appertaining to Dag No. 244 of Toubungkhok of Village No. 81 as grazing ground and also a decree for removal of the tabular and other structures from the suit land. The suit was decreed as per the prayer and thereafter the Petitioners filed execution case No. 2/1989.
But in the meantime, the promokh of Imphal West No. 1 Development Block filed an application to the Deputy Commissioner for dereservation of a portion of the decretal land measuring 1 acre out of the aforesaid land. Accordingly, in exercise of the power u/s 13 of the Munipur Land Revenue and Land Reforms Act (in short MLR & LR Act), I960 the Deputy Commissioner by his order dated 12.1.1987 dereserved the land measuring 1 acre in the southern portion of the plot No. 244 of Village No. 81 Taobungkhok West that is a part of the decretal land for Taobungkhok U.J.B. (Balika) School and thereafter the Governor by a notification issued on 23rd August, 1988 allotted the aforesaid land in favour of the Director of Education (S) for construction of the Taobungkhok U.J.B. School.
Some Villagers challenged this order of the Deputy Commissioner before the Revenue Tribunal in revision case No. 17/1987. But the Presiding Officer of the Revenue Tribunal dismissed that revision petition.
On behalf of the Petitioners, two main questions have been raised for consideration. The first is that the order of learned Munsiff is perverse by reason of the fact that he failed to exercise his discretion properly keeping in mind the facts of the case. The other question is that the learned Munsiff committed gross error of law in taking in view the subsequent event into consideration.
The contention of Mr. Nokulsana Singh is that a perusal of the impugned judgment particularly para 4 of the judgment will show that learned Munsiff made a finding that the structures were not situated on the dereserved portion of the decretal land. But Mr. Sanajaoba Singh, the learned Counsel appearing on behalf of the Respondents has submitted that it is true that learned Munsiff has made an observation under para 4 of the judgment that it was not disputed that the structures did not stand on the dereservation portion of the land. But according to him if all the facts are taken into view then it will be palpably clear that such an observation was wrongly written and it might be so due to some typographical mistake. It is argued by Mr. Sanajaoba that this observation is not actually the finding of the learned Munsiff and as such the Petitioners are not entitled to get any sort of relief.
The next point urged by Mr. Nokulsana Singh is that even though it is a fact that a portion measuring 1 acre of the decretal land was dereserved for the purpose of construction of the School building, this subsequent event cannot be looked into and that learned Munsiff cannot go beyond the decree. In support of his contention Mr. Nokulsana has placed reliance on two decisions of the Apex Court namely Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, Sri Vidya Sagar Vs. Smt. Sudesh Kumari and Others, Vidya Sagar Appellant v. Smti Sudesh Kumari and Ors. Respondents. But I do not think that these citations are of any help to the Petitioners. In the former decision it has been held by their Lordships in para 19 that:
It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree, For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree, In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used.... In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution.
In the latter case Their Lordships held:
It could not be said that this decree was still executable in absence of an express provision voiding the decree or taking away the rights under the decree by operation of law. The old property became extinct and the proprietors including the decree-holder had nothing left with them after the vesting in the State...therefore, the decree could not be executed for that reason.
In the former case Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, the decree-holder asked for possession of some lands relating to which occupancy rights under the Land Reforms Act had been granted to the tenants by the Debt Adjustment Board. The matter came to the Board being remanded by the District Judge. The Board while considering the case after remand did not go into the question of the two house as it could not. But so far as the fields are concerned the Board stated that the fields mentioned in Items Nos. 3, 4, 5 and 6 of the Darkhast could not be ordered to be delivered to the debtor as the tenants had obtained occupancy certificates in respect of those fields. In the penultimate paragraph of the judgment Their Lordships viewed that it was not necessary for them to go to the question whether the executing court could have directed the delivery of the properties for which occupancy certificates had been granted under the Land Reforms Act since the order of the Board was not challenged. It was stated the Board had gone into the matter and had pronounced on the same and that pronouncement was not challenged in appeal. Therefore whether the order of the Board is correct or not, it is binding on the parties to the litigation.
So far as the latter case Sri Vidya Sagar Vs. Smt. Sudesh Kumari and Others, is concerned, it would be apparent from the above except that proprietory right having been vested in the State the decree to that extent became devoid of substance.
In the instant case, it is submitted by Mr. Sanajaoba Singh the learned Counsel for the Respondents that pasturage is a right but the persons who are enjoying that right are not owners of the land. It is the Government which is the owner of the land and hence Government has every power to dereserve any such land in case of public necessity. It is an admitted fact that land measuring 1 acre of the decretal land was dereserved by the Deputy Commissioner, Imphal by his order dated 12.1.1987 contained in Annexure-A/2. The order of the Governor contained in Annexure-A/5 further shows that this 1 acre of land was allotted in favour of the Director of Education (S) for construction of the Taobungkhok UJB School and after this allotment some building was also constructed for the above purpose. This order of dereservation was challenged by 60 Villagers of Taobungkhok Village before the Revenue Tribunal, Manipur Imphal. But the Revenue Tribunal dismissed the revision affirming the impugned order. This order of the Tribunal was not challenged thereafter. Section 13 of the MLR & LR Act 1960 Shows that the Deputy Commissioner may set apart land belonging to the Government for pasturage or for any other purpose. The Rules made thereunder also show that the Deputy Commissioner after inviting objections if any may set apart such land for proper utilisation of it.
It is therefore, quite clear from the facts stated above that 1 acre of decretal land ceased to be the land for pasturage and some School premises being also constructed thereon. I find that the decree-holder lost the right of pasturage over that portion of the land. On perusal of the judgment of the executing court I find that the executing court under para 13 of the judgment made the finding that the foundation of claim of the decree-holders had been obliterated by the dereservation and therefore the execution of the decree for demolition of the tabular structures standing thereon was unwarranted I find that learned executing court after discussion of the evidence adduced by the parties arrived at the conclusion. It may be stated here that High Court can interfere with such order when the lower court''s finding of fact is based on conjucture and the lower court loose sight of any material evidence. But in the present case I do not find that there is any scope to say that the finding of the executing court was based on conjucture or that it lost sight of any material evidence.
I am, therefore, of opinion that decision of the executing court be interfered with in revision u/s 115 of Code of Civil procedure, Section 115 of CPC applies to jurisdiction alone, the irregular exercise or the non-exercise of it or the illegal assumption of it. But in the instant case 1 do not find that the executing court has exercised jurisdiction not vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity.
For the reasons stated above, this Revision petition is found devoid of any merit and accordingly it is dismissed. But in the circumstances, of the case, I make no order as to costs.