IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL MISCELLANEOUS JURISDICTION)

Civil Misc. No. of 2023

In the matter of an

application under Article

227 of the Constitution of

India r/w Section 151 of the

Code of Civil

Procedure,1908.

AND

In the matter of:

Nagina Devi, Gender – Female, aged about 65 years,

Wife of Baleshwar Sahni, Resident of village -

Tisidih, Police Station –Bahadurpur, District –

Darbhanga (Bihar),PIN 847106.

..…… PETITIONER

VS
1. Janak Lali Devi, Gender- Female, Aged about – 62

years, wife of Pramod Kumar Thakur, Resident of

Mohalla– G.N. Ganj, Police Station – Laheriasarai,

District – Darbhanga

2. Kedar Nath Mahaseth @ Santosh Mahaseth, Gender

– Male, Aged about 70 years, son of Late Ram

Chandra Mahaseth, Resident of Mohalla –

Bakerganj, Police Station – Laheriasarai, District –

Darbhanga. ………..…RESPONDENTS

To,

The Hon’ble Mr. Justice K. Vinod Chandran,

Hon’ble the Chief Justice of the High Court of

Judicature at Patna and His Companion Justices

of the Hon’ble Court.

The humble petition on

behalf of the petitioner

above named;

MOST RESPECTFULLY SHEWETH:-

1. That this Civil Miscellaneous application is being

filed for quashing/setting aside the order dated

05.09.2023 passed by learned Sub-Judge II,

Darbhanga in Title Execution Case No.02 of 2012,

by which while rejecting the petition dated

25.11.2019 filed by the petitioner, namely, Nagina

Devi, the learned court below has proceeded with

the handing over the possession of the land in

dispute, on the basis of Judgment and Decree dated

09.10.2012 passed by Sub-Judge, IV, Darbhanga in

Title Suit no.142 of 2007, without considering the

relevant facts, by which plaintiff of Title Suit

no.142 of 2007, namely, Janak Lali Devi herself

has admitted that the physical possession of the

land in dispute had already been given to her, by

the land owner, namely, Sri Kedar Nath Mahaseth

@ Santosh Mahaseth, in the Year 1997, itself, who

was defendant in the Title Suit no.142 of 2007.

And/Or

Pass such other order/orders to which the petitioner

may found entitled, on the facts and circumstances

of the Case.
2. That the petitioner is citizen of India and has

been residing within the territorial jurisdiction

of this Hon’ble Court.

3. That the following points of law which arises

for kind consideration by this Hon’ble Court,

are as following :-

i. Whether the learned court below

while passing the impugned order

dated 05.09.2023 has considered

the objections raised by the

petitioner in her petition dated

25.11.2019?

ii. Whether while passing the

impugned order the learned court

below has considered the facts that

the petitioner has purchased 10.22

decimal land from Mostt. Manjula

Devi, wife of Late Kailash

Mahaseth, vide Sale Deed

No.16569 dated 06.12.2006 as the

said Kailash Mahaseth was brother

 of the aforesaid Kedar Nath

Mahaseth?

iii. Whether the learned court below

while passing the impugned order

has considered the facts that the

Title Suit no.142 of 2007 has been

filed, one year after the execution

of the aforementioned Sale Deed

dated 06.12.2006?

iv. Whether the learned court below

ought to have considered the facts

that at Paragraph No.10 of the

Judgment dated 09.10.2012 the

aforementioned facts, regarding

purchasing the aforementioned

land by the petitioner Nagina Devi

has been mentioned?

v. Whether, while passing the

impugned order, the learned court

below ought to have considered the

facts that by virtue of Sale Deed

No.16569 dated 06.12.2006 the

 petitioner, namely, Smt. Nagina

Devi became the necessary party

of the Title Suit, but without

impleading her as a defendant in

the Title Suit no.142 of 2007, the

suit is maintainable in the eye of

law?

vi. Whether the learned court below

ought to have considered the facts

that if the petitioner Nagina Devi

has not been impleaded as

defendant in the Title Suit no.142

of 2007, the Judgment and Decree

dated 09.10.2012 is applicable

upon her?

vii. Whether the learned court below

ought to have considered the facts

that vide Judgment and Decree

dated 09.10.2012, the defendant

has been directed to execute a sale

deed in favour of the plaintiff

within two months and the said

 Judgment has already been

complied with by the defendant of

the aforesaid Title Suit no.142 of

2007 by executing a Sale Deed

No.13983 dated 17.09.2016 in

favour of the aforesaid plaintiff

Janak Lali Devi, in that event the

Title Execution Case No.02 of

2012 became infructuous ?

viii. Whether the learned court below

ought to have considered the fact

that if the Judgment and Decree

dated 09.10.2012 has already been

complied with in that event, the

Title Execution Case No.02 of

2012 is maintainable?

ix. Whether, while passing the

impugned order the learned court

below ought to have considered the

facts that at Page No.9 of the

Judgment and Decree dated

09.10.2012, while the learned trial

 court deciding the issue no.5, has

specifically been mentioned that

the defendant had already

delivered possession of the suit

land to the plaintiff on 08.12.1997?

x. Whether the learned court below

while passing the impugned order

ought to have considered the facts

that the petitioner Nagina Devi has

already filed Title Suit no.425 of

2019 against the aforesaid Janak

Lali Devi for declaration of title

and confirmation of possession,

upon her 02 katha 07 dhur land

purchased vide Sale Deed

No.16569 dated 06.12.2006?

xi. Whether otherwise also the

impugned order dated 05.09.2023

is bad in law and fact?

4. That the short facts of the petitioner’s case is that

the petitioner, namely, Nagina Devi, wife of

Baleshwar Sahni had purchased a piece of

residential land admeasuring 10.22 decimal

equivalent to 02 katha 07 dhur, situated at Mauza

– Barhetta Madhopur, Pargana – Pashchim

Bhingo, Police Station – Bahadurpur, Tauzi

No.1854, Revenue Thana No.283, Khata Nos.

250, 26 and Khesra Nos. 117 and 458 under

Bahadurpur Circle in the district of Darbhanga

from Mosstt. Manjula Devi, wife of Late Kailash

Mahaseth vide Sale Deed No.16569 dated

06.12.2006 and the boundary of the said land is

as follows:-

North Santosh Mahaseth

South Niz Mokir

East Road

West Road

A true photo/typed copy of

Sale Deed No.16569 dated

06.12.2006 is being annexed

herewith and marked as

 Annexure-P/1 to this

petition.

5. That it is most humbly submitted that thereafter the

aforesaid land has been mutated in the name of the

petitioner vide order dated 04.09.2011, passed by

the Circle Officer, Bahadurpur, in Mutation Case

No.1172/2011-12, following which Jamabandi

No.2376 had been created in her name ,which is

also evident from perusal of Malguzari Receipt

No.00171192 dated 04.05.2015.

The true photo/typed copies of

order dated 04.09.2011 and

Malguzari Receipt dated

04.05.2015 are being annexed

herewith and marked as

Annexure-P/2 Series to this

petition.

6. That it is most humbly submitted that after

aforesaid purchase, the petitioner has amalgamated

the aforementioned land along with her another

one katha three dhur land, which he had earlier

purchased from the son of Janak Lali Devi.

 Thereafter she has constructed a residential house

consisting 11 rooms, one verandah and five

bathrooms ,upon the three katha ten dhur land and

the said premises has been given to one Mount

Summer School on rent, over which a hostel is also

running, presently.

7. That it is most humbly submitted that the

aforementioned land is the ancestral land of one

Asharfi Mahaseth. The said Asharfi Mahaseth died

leaving behind his three sons and two daughters,

namely, Ram Chandra Mahaseth, Rameshwar

Mahaseth and Satya Narayan Mahaseth, Tara Devi

and Savitri Devi. Further the said Ram Chandra

Mahaseth died leaving behind his wife Tara Devi

and five sons, namely, Kashi Mahaseth, Umanath

Mahaseth @ Lalloo Mahaseth, Kedar Nath

Mahaseth @ Santosh Mahaseth, Amarnath

Mahaseth and Kailash Mahaseth. Further

Rameshwar Mahaseth died leaving behind his wife

Sarla Devi and two sons, namely, Baidyanath

Mahaseth and Nageshwar Mahaseth. Whereas

Satya Narayan Mahaseth died leaving behind his

 only son, namely, Pashupati Mahaseth. Further the

said Kailash Mahaseth died leaving behind his wife

Manjula Devi and one minor son Siddharth Kumar

and two minor daughters, namely, Madhu Kumari

and Minu Kumari.

8. That further it is relevant to mention here that a

Partition Suit no.101/1995 has been filed on

24.11.1995 by Kedar Nath Mahaseth against his

aforementioned brothers and their legal heirs for

Partition of all the ancestral family property left by

Ram Chandra Mahaseth.

9. That it is further relevant to mention here that the

aforementioned Manjula Devi, wife of Late

Kailash Mahaseth has an urgent need of money to

maintain livelihood of herself and her three

children has executed a Sale Deed No.16569 dated

06.12.2006 ,in favour of petitioner, namely, Nagina

Devi, wife of Sri Baleshwar Sahni for 10.22

decimal of land, as stated above in Annexure-P/1

of this petition.

10. That it is relevant to mention here that the

aforesaid Kedar Nath Mahaseth @ Santosh

Mahaseth, son of Late Ram Chandra Mahaseth had

executed an Agreement for Sale, on 08.12.1997 in

favour of Smt. Janak Lali Devi, wife of Sri

Pramod Kumar Thakur ,for selling 4 katha 10 dhur

land, for a total consideration of Rs. 92500/- and

the said land is situated at Mauza – Barhetta

Madhopur, Pargana – Pashchim Bhingo, Police

Station – Bahadurpur, Tauzi No.1278, Revenue

Thana No.283, Khata No. 250 and Khesra No. 117

under Bahadurpur Circle in the district of

Darbhanga, after receiving Rs.30,000/-. Further it

is relevant to mention here that the aforesaid Kedar

Nath Mahaseth again received some amount,

hence, the total amount became Rs.69,500/- from

the said Janak Lali Devi, therefore, on 31.05.2004

afresh Agreement for Sale has been executed in

favour of Smt. Janak Lali Devi stating therein that

he had received a sum of Rs.69,500/- and a sum of

Rs.23000/- is remained dues, against a total

consideration of Rs.92,500/-. Further it is relevant

to mention here that the time frame of

aforementioned agreement for sale dated

 08.12.1997 has expired on 15.01.2004, therefore,

afresh agreement for sale dated 31.05.2004 has

been executed by the aforesaid Kedar Nath

Mahaseth.

A true photo/typed copy of

agreement for sale dated

31.05.2004 is being annexed

herewith and marked as

Annexure-P/3 to this

11. That it is most humbly submitted that as the

aforesaid Kedar Nath Mahaseth has refused to

execute a sale deed in favour of Smt. Janak Lali

Devi, therefore, the said Janak Lali Devi, wife of

Sri Pramod Kumar Thakur has filed a Title Suit

No.142 of 2007 in the year 2007, against Kedar

Nath Mahaseth @ Santosh Mahaseth, son of Late

Ramchandra Mahaseth for issuance of direction to

the defendant for executing sale deed in favour of

the plaintiff Janak Lali Devi. It is also relevant to

mention here that prior to filing of the aforesaid

title suit, the petitioner Nagina Devi had already

purchased 10.22 decimal land from the wife of

 Late Kailash Mahaseth and the said land of vendor

Manjula Devi, wife of Late Kailash Mahaseth was

a joint family property with the aforesaid Kedar

Nath Mahaseth and for partition of the ancestral

property of the aforesaid Kedar Nath Mahaseth and

all the share holders, the aforesaid Kedar Nath

Mahaseth and his two daughters, namely, Vartika

Kumari and Shakti Kumari have jointly filed

Partition Suit No.101 of 1995 against the aforesaid

Ram Chandra Mahaseth, Smt. Tara Devi, wife of

Ram Chandra Mahaseth and other share holders,

which was pending before the learned Sub-Judge,

Darbhanga.

A true photo/typed copy of

plaint of Partition Suit No.101

of 1995 is being annexed

herewith and marked as

Annexure-P/4 to this petition.

12. That it is further relevant to mention here that

though the Estate left by the father of Kedar Nath

Mahaseth, namely, Ram Chandra Mahaseth has not

been divided between the five sons of Ram

Chandra Mahaseth and for partition of the Estate

left by Ram Chandra Mahaseth, the aforesaid

Partition Suit No.101 of 1995 was filed by Kedar

Nath Mahaseth. But during pendency of the

aforesaid Partition Suit, Smt. Janak Lali Devi, wife

of Sri Pramod Kumar Thakur has filed the title suit

bearing Title Suit No.142 of 2007 against Kedar

Nath Mahaseth @ Santosh Mahaseth, without

impleading all the share holders of the aforesaid

joint property, therefore, the aforesaid title suit was

not maintainable on the ground of non-joinder of

necessary parties. Further it is relevant to mention

here that prior to filing of the Title Suit No.142 of

2007, the petitioner Nagina Devi has purchased

10.22 decimals land from Mosstt. Manjula Devi,

wife of Late Kailash Mahaseth vide Sale Deed

No.16569 dated 06.12.2006. Therefore, the

aforesaid Manjula Devi, wife of Late Kailash

Mahaseth and the petitioner Nagina Devi became

the necessary parties in the aforesaid Title Suit. But

none of the two have been impleaded as defendants

in the aforesaid title suit. It is further relevant to

 mention here that the said title suit has been

disposed of vide Judgment and Decree dated

09.10.2012, by which the defendant Kedar Nath

Mahaseth has been directed to execute an absolute

Sale Deed in favour of the plaintiff Smt. Janak Lali

Devi,for the Suit Land, within a period of two

Months.

The true photo/typed copies of

Judgment and Decree dated

09.10.2012 are being annexed

herewith and marked as

Annexure-P/5 Series to this

petition.

13. That it is further relevant to mention here that in

Paragraph No.10 of the Judgment and Decree

dated 09.10.2012, it has specifically been

mentioned that the plaintiff and defendant have

filed their separate written statement and in the

said written statements both of them admitted

that the Order dated 15.06.2010 has been passed

by learned Sub-Judge-III, Darbhanga in the

aforesaid Partition Suit No.101 of 1995 and in

paragraph no.9 of the said order, it is stated that

“I have gone through the photo copy of Sale

Deed filed by the defendant which shows that

Manjula Devi, the substituted defendant no.3 has

executed a sale deed of the suit land in favour of

Smt. Nageena Devi and that sale deed has been

executed without the permission of the court.

But the plaintiff who have not been restrained

vide order dated 03.02.1998 is seeking

permission to sale the land detailed in Petition

dated 23.09.08 the total area of Khata No.250

Khesra No.117 is 1 Bigha 16 Katha 9 Dhur and

that land has been shown in Schedule-I of the

plaint is joint family property. The plaintiff has

filed this suit for separate Patti of 1/18th share of

plaintiff in Sch-I of the plaint, Schedule-I land

contained page numbers of land whose area is

much more than the area sought by plaintiff to

be sold to the vendee.”

From bare perusal of the

aforesaid contents, it transpired that the learned

trial court was well acquainted with the facts

 about the land purchased by the petitioner

Nagina Devi, but even after that the petitioner

Nagina Devi has not been impleaded as

defendant in the said title suit bearing Title Suit

no.142 of 2007. Hence, the question arises that if

the petitioner Nagina Devi has not been

impleaded as defendant in the aforesaid title suit,

then the said Judgment and Decree dated

09.10.2012 is applicable upon the petitioner

Nagina Devi ?

14. That it is further relevant to mention here that in

Paragraph No.9 of the Judgment dated

09.10.2012, it is clearly mentioned that the

plaintiff admitted that the defendant Kedar Nath

Mahaseth while executing agreement for sale

dated 08.12.1997 had handed over the

possession of the land under purchase to the

plaintiff.

15. That it is further relevant to mention here that

though the aforesaid Judgment and Decree dated

09.10.2012 has already been complied with, with

the execution of the aforesaid Sale Deed dated

 17.09.2016, but even after that the learned Sub-

Judge-II, Darbhanga, has passed the impugned

order dated 05.09.2023 in Title Execution Case

No.02 of 2012, which is not sustainable in the

eye of law.

16. That it is further relevant to mention here that in

paragraph no.3 of the aforesaid Judgment dated

09.10.2012, it is mentioned that the defendant

Kedar Nath Mahaseth had obtained permission

vide order dated 15.06.2007 from the learned

Sub-Judge, Darbhanga, where the Partition Suit

No.101 of 1995 was pending, for executing a

sale deed in favour of the plaintiff, for 2 katha

and 5 dhur land only, but the defendant Kedar

Nath Mahaseth had executed sale deed in favour

of the plaintiff Janak Lali Devi for 4 katha and

10 dhur land, which is not sustainable in the eye

of law.

17. That it is further relevant to mention here that

when the defendant Kedar Nath Mahaseth had

not complied with the Judgment and Decree

dated 09.10.2012, therefore, after expiry of two

 months from the date of passing of the aforesaid

judgment, the plaintiff Janak Lali Devi has filed

Title Execution Case No.02 of 2012 against the

aforesaid Kedar Nath Mahaseth.

18. That it is further relevant to mention here that

during pendency of the aforesaid Title Execution

Case No.02 of 2012, the sale deed no.13983

dated 17.09.2016 has been executed by the

learned Sub-Judge-IV, Darbhanga alongwith the

aforesaid Kedar Nath Mahaseth @ Santosh

Mahaseth, son of Late Ram Chandra Mahaseth

in favour of the aforesaid Smt. Janak Lali Devi,

wife of Sri Pramod Kumar Thakur for 4 katha 10

dhur land equivalent to 20 decimals situated at

Mauza – Barhetta Madhopur, Pargana –

Pashchim Bhingo, Police Station – Bahadurpur,

Tauzi No.1854, Revenue Thana No.243, Khata

No. 250 (Old), Khata No.26 (New) and Khesra

No.117 (Old) and Khesra No.458 (New) under

Bahadurpur Circle in the district of Darbhanga.

Further it is relevant to mention

here that with the registration of the aforesaid

 sale deed, the Judgment and Decree dated

09.10.2012 has already been complied with,

therefore, the Title Execution Case No.02 of

2012, became infructuous.

A true photo/typed copy of

Sale Deed No.13983 dated

17.09.2016 is being annexed

herewith and marked as

Annexure-P/6 to this

petition.

19. That it is further relevant to mention here that

after purchasing the aforesaid land, the petitioner

Nagina Devi has constructed the residential

building upon the aforesaid land, as stated

above. But when the petitioner came to know

about title execution case no.02 of 2012, she has

filed an application before the learned Sub-

Judge-VIII, Darbhanga, on 25.11.2019

submitting therein that the instant Execution

Case No.02 of 2012 is redundant and beyond the

purview of the Order 21 of the Code of Civil

Procedure as the Judgment and Decree, under

 execution, has already been complied with.

Hence, the instant execution case must be

dropped. Further it is relevant to mention here

that vide petition dated 25.11.2019, the

petitioner fairly submitted that while discussing

the Issue No.5, the learned trail court in its

Judgment dated 09.10.2012 has specifically been

mentioned that the defendant had already

delivered possession to the plaintiff on

08.12.1997, hence, there is no question for

delivery of possession to the defendant.

A true photo/typed copy of

petition dated 25.11.2019 is

being annexed herewith and

marked as Annexure-P/7 to this

petition.

20. That it is further relevant to mention here that on

05.09.2023 the petitioner filed her written

statement before the learned Sub-Judge, II,

Darbhanga in Title Execution Case No.02 of

2012 stating therein that the decree holder,

namely, Janak Lali Devi has already acquired

 possession upon the suit land on 08.12.1997

which she has stated in the plaint of the title suit

No.142 of 2007 and the said fact has also

mentioned at Paragraph No.9 at Page No.9 of the

Judgment dated 09.10.2012 passed in title suit

no.142 of 2007. The petitioner further submitted

that the decree holder also travelled upto Hon'ble

Patna High Court vide Second Appeal No.322 of

2013 and she has made her statement before the

First Appellate Court as well as before the

Hon'ble Court stating therein that the judgment

debtor has already handed over the possession of

the suit land to the decree holder in the year

1997 itself.

21. That it is further relevant to mention here that

the petitioner further submitted that the general

principle with regards to power and duties of

executing court has been defined under Sections

37, 38, 39 and 42 of the Code of Civil

Procedure. Further the petitioner vide her written

statement dated 05.09.2023 has also submitted

that in a catena of Judgment, the Hon'ble

 Supreme Court was pleased to hold that the

executing court cannot go behind the decree but

it execute the same as per judgment and decree

as it has no power to verify and modify the terms

of the decree. The petitioner also placed reliance

the various judgments passed by Hon'ble

Supreme Court which have been reported in AIR

1972 SC Page 239, AIR 1990 SC Page 2177 and

AIR 1998 SC Page 743, but without considering

the aforesaid facts, the learned Sub-Judge II,

Darbhanga has passed the impugned order dated

05.09.2023 in Title Execution Case No.02 of

2012, which is not sustainable in the eye of law.

A true photo/typed copy of

written statement dated

05.09.2023 is being annexed

herewith and marked as

Annexure-P/8 to this

petition.

22. That it is further relevant to mention here that

the petitioner has also filed title suit no.425 of

2019 on 21.10.2019, against the aforesaid Smt.

Janak Lali Devi and in the aforesaid title suit

following reliefs have been sought for : -

(A) That a decree for declaration of

title and confirmation of

possession with respect to the suit

land be passed in favour of

plaintiff and against the

defendants.

(B) That, on adjudication of the case

the decree dated 02/10/2012

passed by learned Sub-Judge-

IVth, Darbhanga in Title Suit

no.142/2007, be set aside.

(C) That, a decree of permanent

injunction with respect to the suit

land be passed in favour of

plaintiff and against the

defendants.

(D) That, the cost of the suit be

awarded in favour of the plaintiff

and against the defendants.

 (E) For other relief / reliefs to which

the plaintiff may be found entitle

on the facts and circumstances of

the case.

23. That it is further relevant to mention here

that the aforesaid title suit was admitted on

08.11.2019 and notice has already been issued

to the defendant and the defendant appeared in

the said title suit and these facts have also

been mentioned by the petitioner in the

aforesaid written statement dated 05.09.2023

filed in Title Execution Case No.02 of 2012

but ignoring the aforesaid facts the learned

Sub-Judge-II, Darbhanga has passed the

aforesaid order dated 05.09.2023.

A true photo/typed copy of

plaint of Title Suit No.425 of

2019 is being annexed herewith

and marked as Annexure-P/9 to

this petition.

24. That it is further relevant to mention here

that the under Section 47 of the Code of Civil

 Procedure, it has specifically been mentioned

that “Section 47. Questions to be determined

by the Court executing decree. (1) All

questions arising between the parties to the

suit in which the decree was passed, or their

representatives, and relating to the execution,

discharge or satisfaction of the decree, shall

be determined by the Court executing the

decree and not by a separate suit.”

25. That it is further relevant to mention here

that under Order 21, Rule 101 of the Code of

Civil Procedure, the Executing Court is under

obligation to determine all the questions raised

by the concerned affected party. The Order

21, Rule 101 of the Code of Civil Procedure

can be read as follows: - “101. Question to be

determined.- All questions (including

questions relating to right, title or interest in

the property) arising between the parties to a

proceeding on an application under rule 97 or

rule 99 or their representatives, and relevant

to the adjudication of the application, shall be

 determined by the court dealing with the

application, and not by a separate suit and for

this purpose, the court shall, notwithstanding

anything to the contrary contained in any

other law for the time being in force, be

deemed to have jurisdiction to decide such

questions.”

26. That the petitioner has a good case and

balance of convenience is in favour of the

petitioner. Further the Right, Title and Interest

of the petitioner will also be suffered

adversely if the further proceeding of Title

Execution Case No.02 of 2012 as well as the

operation of order dated 05.09.2023 is not

stayed by this Hon'ble Court.

27. That the petitioner has got no other

efficacious and alternative remedy but to

move before this Hon'ble Court by way of

filing the instant petition.

28. That, earlier, the petitioner has not moved this

Hon’ble Court hereinbefore for the relief

sought for in paragraph no.1 of this petition.

29. That if this petition be not allowed, the

petitioner shall suffer irreparable loss and

injury.

It is, therefore, prayed that your

lordship may graciously be

pleased to issue notice to the

respondents and after hearing

the parties be pleased to quash

the impugned order dated

05.09.2023 passed by learned

Sub-Judge, II, Darbhanga in

Title Execution Case No.02 of

2012 and allow this petition.

AND/OR

During pendency of this case

your lordships further be

pleased to stay the operation of

order dated 05.09.2023 and also

stay the further proceeding of

the Title Partition Suit No.02 of

2012 pending before the court

 of learned Sub-Judge, II,

Darbhanga.

AND/OR

Pass such other order/ orders as

may deem fit and proper in the

interest of justice.

And for this the petitioner shall ever pray.

 AFFIDAVIT

I, Nagina Devi, Gender – Female, aged about 65

years, Wife of Baleshwar Sahni, Resident of village -

Tisidih, Police Station – Bahadurpur, District –

Darbhanga (Bihar) – 847106, do hereby solemnly

affirm and state as follows:

1. That I am Petitioner in this case and, as such, am well

acquainted with the facts & circumstances of this case.

2. That, the contents of this writ application have been

read over and explained to me in Hindi, which I have

fully understood the same.

3. That, the contents made in paragraph nos.

…………………… are true to my knowledge and

those made in paragraph nos. ……………… are true

to my information derived from the record of this case

and rests are by way of submissions before this

Hon’ble Court.

4. That, the annexures are the true photo/ typed copies of

their respective originals.

IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL MISCELLANEOUS JURISDICTION)

Civil Misc. No. ___________ of 2023

Nagina Devi ….. PETITIONER

VS

Janak Lali Devi and another ……RESPONDENTS

Sub:-Civil Miscellaneous (Arising out of civil Court

Order)

INDEX

Sl. PARTICULARS PAGE

NO NO.

01. Writ Application along with

Affidavit, Undertaking by the
Advocate and Adharcard of the
petitioners.

02. ANNEXURE P/1:- A true

photo/typed copy of Sale Deed
No.16569 dated 06.12.2006

03. ANNEXURE P/2 Series:- The true

photo/typed copies of order dated
04.09.2011 and Malguzari Receipt
 dated 04.05.2015

04. ANNEXURE P/3:- A true

photo/typed copy of agreement for
sale dated 31.05.2004

05. ANNEXURE P/4:- A true

photo/typed copy of plaint of Partition
Suit No.101 of 1995

06. ANNEXURE P/5 Series:- The true

photo/typed copies of Judgment and
Decree dated 09.10.2012

07. ANNEXURE P/6: A true photo/typed

copy of Sale Deed No.13983 dated
17.09.2016

08. ANNEXURE P/7: A true photo/typed

copy of petition dated 25.11.2019

09. ANNEXURE-P/8: A true photo/typed

copy of written statement dated
05.09.2023

10. ANNEXURE-P/9: A true photo/typed

copy of plaint of Title Suit No.425 of
2019

11. IMPUGNED ORDER

12. VAKALATNAMA
IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL MISCELLANEOUS JURISDICTION)

Civil Misc. No. ___________ of 2023

Nagina Devi ….. PETITIONER

VS

Janak Lali Devi and another ……RESPONDENTS

SYNOPSIS

RELIEF PRAYED:- This Civil Miscellaneous

application is being filed for quashing/setting aside the

order dated 05.09.2023 passed by learned Sub-Judge II,

Darbhanga in Title Execution Case No.02 of 2012, by

which while rejecting the petition dated 25.11.2019 filed by

the petitioner, namely, Nagina Devi, the learned court

below has proceeded with the handing over the possession

of the land in dispute, on the basis of Judgment and Decree

dated 09.10.2012 passed by Sub-Judge, IV, Darbhanga in

title suit no.142 of 2007, without considering the relevant

facts, by which plaintiff of title suit no.142 of 2007,

namely, Janak Lali Devi has herself admitted that the

physical possession of the land in dispute has already been

given to her by the land owner, namely, Sri Kedar Nath

Mahaseth @ Santosh Mahaseth, who was defendant in the

title suit no.142 of 2007, in the year 1997 itself and for the

other necessary reliefs.

List of important dates and events

24.11.1995 A partition suit no.101/1995 has been filed

on 24.11.1995 by Kedar Nath Mahaseth

08.12.1997 Kedar Nath Mahaseth @ Santosh Mahaseth

had executed an Agreement for Sale on

08.12.1997 in favour of Smt. Janak Lali Devi

for selling 4 katha 10 dhur land for a total

consideration of Rs. 92500/-

31.05.2004 The period of aforementioned agreement for

sale dated 08.12.1997 has expired on

15.01.2004, therefore, afresh agreement for

sale dated 31.05.2004 has been executed by

the aforesaid Kedar Nath Mahaseth.

(ANNEXURE-P/3)

06.12.2006 The petitioner, namely, Nagina Devi, had

purchased a piece of residential land

 admeasuring 10.22 decimal equivalent to 02

katha 07 dhur from Mosstt. Manjula Devi

vide Sale Deed No.16569 dated 06.12.2006.

(ANNEXURE-P/1)

04.09.2011 The aforesaid land has been mutated in the

name of the petitioner vide order dated

04.09.2011 passed by the Circle Officer,

Bahadurpur, in Mutation Case

No.1172/2011-12.

(ANNEXURE-P/2 SERIES)

09.10.2012 The title suit has been disposed of vide

Judgment and Decree dated 09.10.2012

(ANNEXURE-P/5 SERIES)

04.05.2015 Jamabandi No.2376 had been created in her

name which is also evident from perusal of

Malguzari Receipt No.00171192 dated

04.05.2015.

(ANNEXURE-P/2 SERIES)

17.09.2016 During pendency of the aforesaid Title

Execution Case No.02 of 2012, the sale deed

no.13983 dated 17.09.2016 has been

executed by the learned Sub-Judge-IV,

 Darbhanga.

(ANNEXURE-P/6)

08.09.2019 Title Suit No.425/2019 was admitted.

25.11.2019 The petitioner has filed an application before

the learned Sub-Judge-VIII, Darbhanga on

25.11.2019.

(ANNEXURE-P/7)

05.09.2023 On 05.09.2023 the petitioner filed her

written statement before the learned Sub-

Judge, II, Darbhanga in Title Execution Case

No.02 of 2012.

(ANNEXURE-P/8)

The learned Sub-Judge-II, Darbhanga, has

passed the impugned order dated 05.09.2023

in Title Execution Case No.02 of 2012.

Hence, this present Civil Misc. Petition.