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Ram Lakhan Tewari (Deceased) and ors. Vs. Ram Samujh Tewari (Deceased) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 538 of 1965
Judge
Reported inAIR1981All211
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantRam Lakhan Tewari (Deceased) and ors.
RespondentRam Samujh Tewari (Deceased) and ors.
Appellant AdvocateRadhey Shyam Devedi, Adv.
Respondent AdvocateM.S.M. Tripathi and ;R.S. Misra, Advs.
DispositionAppeal dismissed
Excerpt:
property, civil - restraining interference in possession of land - section 47 of code of civil procedure ,1908 - suit for injunction restraining the defendants interfering with plaintiff possession and raising construction over ghari - claims relief of possession in alternative - held, suit not barred by section 47. - - and since the decree in the earlier suit for partition was not executable by delivery of possession, there could be no question of extinguishment of the plaintiff's rights by their failure to execute the decree......their 1/2 portion and took away the materials thereof and had no concern with the land, as the final decree passed in the suit of partition was never executed. the lower appellate court held on the first two points, raised before it, that the present suit was not barred by section 47 c. p. c. and since the decree in the earlier suit for partition was not executable by delivery of possession, there could be no question of extinguishment of the plaintiff's rights by their failure to execute the decree. on points nos. 3, 4 & 5, raised before the lower appellate court, it held that even if the plaintiffs lost possession after the institution of the earlier suit no. 339 of 1949, the present suit had been filed within 12 years thereof and the parties must be held to be enjoying possession.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for injunction restraining the defendants from interfering with the possession of the plaintiffs over the land and Ghari in suit, detailed at the foot of the plaint, and in the alternative for possession. The suit was dismissed by the trial Court, but the lower appellate Court decreed for possession over the house and Ghari in suit as shown in the Commissioner's map paper No. 43-C by the letters B E D C and J K L I respectively, but the defendants were allowed two months' time to remove their structures on the site of the Ghari shown by the letters J D L I, failing which the plaintiffs could get the same removed by the process of Court The Commissioner's map was ordered to form part of the decree of the lower appellate Court. The point on which the parties were at issue was with reference to an earlier suit for partition being suit No. 339 of 1949 which had been filed by the plaintiffs and was decreed finally on 9-8-1952. It was said that the plaintiffs got 1/2 share towards the west in the house denoted by letters E F C D and 1/2 share in the Ghari towards the south denoted by letters M X Y N on the plaint map. The plaintiffs were purchasers of the share of Ranjit Tewari and it was alleged that after the sale deed in their favour, they demolished their 1/2 portion and took away the materials thereof and had no concern with the land, as the final decree passed in the suit of partition was never executed. The lower appellate Court held on the first two points, raised before it, that the present suit was not barred by Section 47 C. P. C. and since the decree in the earlier suit for partition was not executable by delivery of possession, there could be no question of extinguishment of the plaintiff's rights by their failure to execute the decree. On points Nos. 3, 4 & 5, raised before the lower appellate Court, it held that even if the plaintiffs lost possession after the institution of the earlier Suit No. 339 of 1949, the present suit had been filed within 12 years thereof and the parties must be held to be enjoying possession at least till the date of the institution of the earlier suit on 29-10-1949 and that being so the defendants could not have acquired title by adverse possession and the suit could not also be said to be barred by limitation. It was held that the Ghari had been built by the defendants some 5 or 6 years ago and that they had been in possession over the entire house and the Ghari in question. On point No. 6, the lower appellate Court considered the relief to be granted to the plaintiffs and decreed the suit as indicated above,

2. It was urged before me that the final decree passed in a suit for partition cannot be said to be inexecutable. After the final decree has been passed, it is open to the parties to enter into separate possession over the shares in the property allotted to them respectively and in case there is any resistance by some other party, to obtain possession thereon by executing the decree. I had at an earlier stage of hearing of the appeal allowed the learned counsel for the respondents an opportunity to ascertain whether any application for execution of the decree in the earlier suit for partition was made or not and, if made, with what result. Learned counsel for the respondents did not, however, avail of that opportunity. The lower appellate Court has held that the decree was not execute d by the plaintiffs inasmuch as they were already in possession of the Kuras allotted, to them. If the plaintiffs were in possession of the Kuras allotted to them when the final decree was passed there could be no question of executing the final decree for partition in the earlier suit.

3. Learned counsel for the appellants, however, emphasised that the view of the lower appellate Court that the final decree for partition was not executable for separate possession over separate Kuras, was erroneous in law. That is correct, because after allotment of separate portions of property to the separating co-sharers, in accordance with their shares, by the final decree, they can certainly ask the Court to put them into separate possession over the portions of the property allotted to them respectively. But, in the case in hand all that the lower appellate Court has done is to make those observations on the assumption that even if the plaintiffs were not in possession over separate Kuras, the suit could not be said to be barred by Section 47 inasmuch as in its opinion the decree was not executable. The fact remains that the lower appellate Court did not find it as a fact that the plaintiffs were not in possession of the portions of the property allotted to them by the final decree of partition. Indeed, immediately before the said observations the lower appellate Court has observed that 'admittedly the decree was not executed by the plaintiffs who alleged that they were already in possession of their separate Kuras and there was no question for executing the decree. 'Learned counsel then drew my attention to the finding of the lower appellate Court on the points Nos. 3, 4 and 5 wherein the lower appellate court has disbelieved the plaintiffs, but has yet held that the suit could not be said to be barred by time inasmuch as even the date of the institution of the earlier suit for partition was within 12 years of the date of the institution of the suit giving rise to the present second appeal. But the finding of the lower appellate Court on this point does not rule out the possibility that the plaintiffs were dispossessed of the portions of the property, allotted to them by the final decree of partition, after the passing of that decree, for it has been found by the lower appellate court that according to the defendants' witness the Ghari was built by them some 5 or 6 years ago, i.e., after the passing of the final decree for partition.

4. My attention was then drawn to the finding of the trial court on issue No. 5. The trial court held that the suit was barred by Section 47, C. P. C. on the ground that it has been found by it that the plaintiffs were not in possession. The trial court did not examine the question whether the plaintiffs were dispossessed of the property in suit at any time after the passing of the final decree in the earlier suit. It appears to me that if the plaintiffs had not been in possession of the property, allotted to them by the final decree of partition in the earlier suit, they would have surely executed the decree in the earlier suit, rather than to bring the present suit for injunction and in the alternative for possession. It has been found by the lower appellate court as a fact that the Ghari was constructed by the defendants some 5 or 6 years before, i.e., after the passing of the final decree for partition in the earlier suit. This action of the defendants did give rise to a fresh cause of action to the plaintiffs. I may add that the basic relief claimed by the plaintiffs was for injunction and their claim was that they had continued to be in possession. The claim of the relief for possession was made only in the alternative to guard against the possibility of being non-suited if the court found that they had been dispossessed by the defendants in the meanwhile. It appears clear to me that the plaintiffs must have been in possession of the property, allotted to them by the final decree for partition, when it was passed and for sometime thereafter and the subsequent acts of the defendants in interfering with the plaintiffs' possessions and in raising constructions over the land of the Ghari, some 5 or 6 years before, gave rise to a fresh cause of action to the plaintiffs for the present suit and it could not be said to be barred by Section 47, C. P. C.

5. The appeal fails and is dismissed. But, in the circumstances, I would make no order as to costs.


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