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Mustt. Kitabjan Bibi and ors. Vs. Ramlal Durgadutta - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 150 of 1982
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantMustt. Kitabjan Bibi and ors.
RespondentRamlal Durgadutta
Appellant AdvocateB. Sarma and A.C. Sarma, Advs.
Respondent AdvocateB.K. Goswami and R.L. Yadav, Advs.
DispositionRevision allowed
Excerpt:
- - described the suit land by dag number as well as by boundaries. in the suit as well as in the execution petition is noor khalifa whereas the southern boundary is smt. this is no doubt a good proposition and is acceptable. the position in the present case stands like this:.....of possession of a different land whose three boundaries coincide with the three boundaries of the land decreed in favour of the plaintiff-opp? 2. the question has to be determined in this revision. what happened is that the plaintiff-opp. instituted a suit being title suit no. 20/64 in the court of assistant district judge, nowgong. subsequently the suit was transferred to the court of the district judge where it was re-numbered as title suit no. 5/67. the suit was for declaration of title and recovery of possession of 3 kathas of land out of ib. 18l. covered by dag no. 958 under patta no. 775 of nowgong town and the suit was against late keramat ali predecessor in interest of the petitioners. it was decreed on 9-6-70 and the decree was put into execution in title execution case no......
Judgment:

S.M. Ali, J.

1. Can be Executing Court go behind the decree in a case where the decretal land cannot be located in terms of the decree and order delivery of possession of a different land whose three boundaries coincide with the three boundaries of the land decreed in favour of the plaintiff-opp?

2. The question has to be determined in this revision. What happened is that the plaintiff-Opp. instituted a suit being Title Suit No. 20/64 in the Court of Assistant District Judge, Nowgong. Subsequently the suit was transferred to the Court of the District Judge where it was re-numbered as Title Suit No. 5/67. The suit was for declaration of title and recovery of possession of 3 kathas of land out of IB. 18L. covered by Dag No. 958 under Patta No. 775 of Nowgong town and the suit was against late Keramat Ali predecessor in interest of the petitioners. It was decreed on 9-6-70 and the decree was put into execution in Title Execution Case No. 1/7Q in the Court of the Assistant District Judge, Nowgong. The writ of delivery of possession to 3 K. of land under Dag No. 958 was issued to be executed with the help of Amin and Mandal. The Amin on spot verification found that the judgment-debtors were not in possession of the land covered by Dag No. 958 which was converted to Dag No. 1255 in the current settlement. It was found that the judgment-debtors-petitioners were in possession of the land under Dag No. 957 pertaining to the aforesaid patta. Thereafter the decree-holder O. P. moved the Court for delivery of possession of the land of Dag No. 957 according to the boundaries. Learned Asstt. District Judge issued a commission for determining the location of the decretal land. The Commissioner after local investigation submitted his report and it was accepted by the Court on 7-5-81. However, the learned Court adjourned the case for hearing objection to execution of the decree. On 23-9-81 J. D. No. 3 filed a petition under Section 47 C. P. C. disputing maintainability of the execution proceeding due to non-ascertainment of the location of the decretal land. This objection petition was heard by the learned Court and decided in favour of the D. H. O. P. and against the J. D. Petitioners vide order dated 24-5-82 and directed delivery of possession of the land of Dag No. 957 to the D. H.

3. It was urged by the learned Counsel for the petitioners that the learned Executing Court should have stuck to the terms of the decree. The land under Dag No. 958 has a distinct location which has been decreed in favour of the D. H. The learned Court adjucating the suit decided it with respect to the land of Dag No. 958. At the time when the suit was decreed that land of Dag No. 957 was very much in existence with a different location. The D. H. described the suit land by dag number as well as by boundaries. Dag No. 957 also had its own boundaries at the time when the suit was decreed. The decretal land had the following boundary description:

North--Municipal Road.

South--Noor Khalifa.

East--Hafijuddin.

West--Abdul Latif.

The Commissioner who surveyed the decretal land as per writ of the Court found a land measuring 3 Kathas under present settlement Dag No. 1259 having the following boundaries:

North-- Municipal Road.

South-- Smt. Paribanu, wife of Noor Mahammad

East-- Mahamad Begum, wife of M. R.

Islam. Abu Fazal, Md. Nurul

Hussain and Hafijuddin and Ors.

West-- Abdul Latif.

It is the report of the Commissioner also that there was no certainty as to whether said Noor Mahammad whose wife is on the south of the land was the same person, as Noor Khalifa. It was further reported by him that the land measuring 3 K. under present dag No. 1259 could be taken as the decretal land. It is found that the learned executing Court ordered for delivery of possession of this land but there is no report of the Survey Commissioner that dag No. 958 or 957 has been changed to dag No. 1259. He recorded no nexus between the old dags and the present dags which he mentioned in the report. So, taking the boundaries of the decretal land found by the Commissioner to be correct re-garding the land measuring 3 K. under possession of J. Ds. can this identity of the land be sufficient to satisfy the identity of the decretal land? The question must be answered in the negative because only two boundaries, namely, the northern and the western boundaries of the land under present dag No. 1259 tally with the corresponding boundaries of the decretal land. Learned counsel for the opposite party argued that the southern boundary also has to be taken to be identical with the southern boundary of the decretal land. But as said before, the Commissioner has a different opinion when he says that there is no certainty as to whether Noor Mohammed and Noor Khalifa are the same person. Moreover, the southern boundary as given by the plaintiff-D. H. in the suit as well as in the execution petition is Noor Khalifa whereas the southern boundary is Smt. Paribanu and the identity of Paribanu is given as wife of Noor Mohammad. So it cannot be said that the southern boundary is the same as that of the decretal land. There-fore the submission of the learned counsel that three boundaries are identifiable with regard to decretal land and that when the quantum of the decretal land also is the same as the quantum of dag No. 1259 (taking for argument's sake that it is the same old Dag No. 957), then in that case the eastern boundary may be ignored and that the land may be identified as the land of the decree, is not acceptable inasmuch as there is no identity of three boundaries as pointed out above. Moreover, this land has a different plot number with a different location.

4. In Smt. Samabati Riang v. Shri Dinabandhu Das. AIR 1964 Tripura 36, it was held that in a suit for declaration of title and delivery of possession of land, it is the duty of the plaintiff to describe the land giving plot numbers or specific boundaries so that the land can be properly identified and that it is unnecessary for the defendant to identify the land claimed by the plaintiff. It was also held that a decree given to the plaintiff without knowing what exactly was the land which he is claiming is unworkable in execution as it will not be possible for the Court Officer who goes to execute the decree to identify the land from the description. This is no doubt a good proposition and is acceptable. The position in the present case stands like this: The plaintiff brought the suit for land under Dag No. 958 with specific boundaries. In execution the Amin found that the lands is not ascertainable in the field. The learned executing Court then issued Commission and the Commissioner did not go to dag number 958, but allegedly went to present dag No. 1259 and found a land having north and west boundaries being identical with the corresponding two boundaries of the decretal land and having different boundaries on the east and south and located this as the decretal land. It has to be said also here that the Commissioner himself is not firm in his identification of the land in view of his report discussed above. It was not a case of subsequent change of dag number. But it appears to be a case of shifting to another land bearing another dag number. The two lands under Dag Nos. 958 and 957 are apart from each other having separate locations. Moreover, mere accidental coincidence of 2 or 3 boundaries of a different land cannot bring it under the decree obtained by the D. H. A decree has a sanctity of its own and there cannot be any fishing in finding the decretal land at the execution stage. The terms of the decree cannot be disturbed by a Commissioner so as to affect the right of the J. D. with regard to a different land. It appears that 'the D. H. himself was not aware of the location of his disputed land and gave wrong description regarding the suit land. Unless the decree has been amended, the executing Court cannot give any direction whose consequence is to disturb the identity of the decretal land. True the executing Court is not an automaton and it can exercise its power to properly construe the decree in order to find out the true import and effect of the same, so that it can proceed to execute the decree in its true and correct perspective giving full effect to the same and for that purpose the Court can look into the pleadings and judgment. But this does not imply that he will travel outside those materials and give effect to the decree.

5. Learned counsel for the O. P. cited P. K. A. B Co-operative Society v. Govt. of Palestine: AIR 1948 PC 207, wherein it was held that where there is a conflict between the statement of area and the description by boundaries, the latter will prevail. The facts of the present case are quite different and this ruling of the Privy Council is not applicable here as it speaks of conflict between area and boundaries. He also referred to Bhagawati Prasad Hajela v. Bishambhar Nath Singh Kapoor: AIR 1972 All 552 in support of his submission that the executing Court has jurisdiction to direct delivery of possession through a Commissioner. The power of the executing Court cannot be disputed in this respect but the question is whether the Commissioner so appointed can vary/modify the identity and description of the decretal land and fix a completely different land for execution. The answer must be in the negative. Moreover, in the present case, as said before, the Commissioner only submitted a report after field verification that a land under present dag No. 1259 is there under possession of the J. Ds measuring 3 Kathas (equivalent to the quantum of the decretal land) and having two boundaries common with those of the decretal land. The learned executing Court cannot execute the decree with respect to the decretal land on this report of the learned Commissioner.

6. Learned counsel for the O. P. further submitted that in revision the Court cannot enter into the facts which were accepted by the learned Court below. But the revisional court has to see whether the Court below acted in exercise of its jurisdiction illegally or with material irregularity. In view of the circumstances of the case it has to be said that the Court below had no jurisdiction to go behind the terms of the decree and it is definite in the present case that there has been wrongful exercise of the jurisdiction by the learned Court.

7. Another point raised by the learned counsel for the O. P. is that the report of the Commissioner was accepted on 7-5-1981 and the objection under Section 47 CPC was raised on 23-9-1981 but the learned Court heard this objection and passed the impugned order. It cannot therefore be said that no objection was raised against the report of the Commissioner. I therefore find that the petition has to be allowed.

8. The result is that the petition is allowed and the impugned order of the learned executing Court is hereby set aside. No order as to costs.


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