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Smt. Brahmavati and anr. Vs. Ramesh Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 212 of 1969
Judge
Reported inAIR1980All297
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantSmt. Brahmavati and anr.
RespondentRamesh Chand and anr.
Appellant AdvocateS.P. Gupta, Adv.
Respondent AdvocateV.D. Singh, Adv.
DispositionAppeal allowed
Excerpt:
.....1908 - right of public to passage on the open land - compromise - fixation of pavement on the open land and failure to do so entitles the plaintiff to a claim of rs.1,000/- compromise is not a subject matter of the suit - held, cannot be enforced by means of execution. - - in respect of an open piece of land in which there was a well. the members of the public used to draw water from the well. the defendants-appellants had broken the eastern stairs and chabutra of the well with the intention of including it in their building, the defendants-appellants also intended to include the open land in their house, therefore, the plaintiffs-respondents claimed permanent injunction restraining the appellants from doing any such act as to cause interference in the rights of the public in the..........under order 1 rule 8, c. p. c. in respect of an open piece of land in which there was a well. the open land was used by the members of the public for sitting purposes and passage. the members of the public used to draw water from the well. the defendants-appellants had broken the eastern stairs and chabutra of the well with the intention of including it in their building, the defendants-appellants also intended to include the open land in their house, therefore, the plaintiffs-respondents claimed permanent injunction restraining the appellants from doing any such act as to cause interference in the rights of the public in the matter of user of the open land and the well. the case was compromised between the parties. para 9 of the compromise application stipulated that the appellants.....
Judgment:

P.N. Goel, J.

1. This is an appeal against the judgment and decree dated 23-9-1968 passed by II Additional Civil Judge, Moradabad.

2. Original Suit No. 443 of 1960 was brought by Ramesh Chand and 9 others under Order 1 Rule 8, C. P. C. in respect of an open piece of land in which there was a well. The open land was used by the members of the public for sitting purposes and passage. The members of the public used to draw water from the well. The defendants-appellants had broken the eastern stairs and Chabutra of the well with the intention of including it in their building, The defendants-appellants also intended to include the open land in their house, Therefore, the plaintiffs-respondents claimed permanent injunction restraining the appellants from doing any such act as to cause interference in the rights of the public in the matter of user of the open land and the well. The case was compromised between the parties. Para 9 of the compromise application stipulated that the appellants could construct pavement on the remaining open land with pucca new Chaukas within a month of the compromise and that if the appellants failed to do so the plaintiffs-respondents would be entitled to claim Rs. 1,000/- as compensation. The appellants failed to comply with this condition of the compromise. The plaintiff-decree-holders filed an execution application. An objection under Section 47 C. P. C. was raised by the appellants that this condition was extraneous to the subject matter of the suit and as such could not be enforced by an execution. The executing court passed a decree for the recovery of Rs. 1,000/-. This decree was confirmed in appeal by the II Additional Civil Judge on 23-9-1978.

3. The learned counsel for the appellants contended that the above condition was wholly extraneous to the subject, malter of the suit and could not be enforced by means of an execution of the decree passed on the basis of compromise.

4. The allegations of the plaint have been indicated above. The dispute related to an open land on which general public had a right of passage and had a right to use it for sitting purposes. There is absolutely nothing in the plaint to show that there was any pavement on the open land which had been removed by the appellants. The only relief claimed in the plaint was injunction restraining the appellants from using the land in such a way as to interfere with the rights of the public therein. Thus there was no question of any pavement in the plaint. Therefore, condition contained in para 9 of compromise application is wholly foreign to the subject matter of the suit. It is different matter that in order to compromise the appellants had agreed to fix pavement on the open land. This sort of settlement is not covered by the subject matter of the suit. In case the compromise had not taken place, the respondents could not have claimed that the appellants should fix pavement on the open land. This is the crux of the matter and the real test to comprehend the subject matter of the suit.

5. The result of what has been said above is that condition No, 9 of the compromise could not be enforced by means of an execution and this matter could not be determined by an executing court under Section 47, C. P. C. The trial court committed an error in passing a decree for Rs. 1,000/- against the appellants and the lower appellate Court likewise committed an error in confirming the decree passed by the executing court.

6. The view taken above is fortified by the view expressed in cases of Balesar Misir v. Tekesar Misir, : AIR1939All454 and Sat Narain v. Chandra Mohan, .

7. The appeal is, therefore, allowed and the judgment and decree dated 23-9-1968, passed by the II Additional Civil Judge as well as the judgment and decree dated 31-10-1964, passed by the Munsif, Moradabad in Execution Case No. 257 of 1961 are set aside. The costs incurred by the parties in this Court shall be easy.


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