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Mon Mohan Gope Vs. Madhu Sudan Gope - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal869
AppellantMon Mohan Gope
RespondentMadhu Sudan Gope
Cases Referred and Nand Lal v. Dharam
Excerpt:
- .....cal. 581 barada v. nabin [1909] 1 i.c. 408 and nand lal v. dharam : air1926all440 . none of these were partition cases.4. it seems to me that the decree before us is certainly one passed jointly in favour of the plaintiff and the present respondents, so far as the kalikhola and the road are concerned and unless the decree is for the present purpose to be regarded as though there was one decree for joint possession in favour of the respondents and the plaintiff and another land different decree for separate possession of their 'allotments by the respondents i think this appeal must fail. as the making and joint possession of the road is an integral part of the partition arrangements, i think that to apply the explanation in this way to the decree (before us would be unreasonable and i.....
Judgment:

Rankin, C.J.

1. In this case a final decree for partition was passed on 28th March 1927. Its effect was to allot various lands in severalty to each of the parties but to reserve as ejmali a kalikhola and also a strip of land to serve as a road giving access to certain of the allotments. This was not a road existing as such from before the partition but was delineated by the commissioner of partition for the first time and it was necessary for him to direct the removal of some huts or ghars in order that the strip of land should serve as a road. The plaintiff in February 1928, brought an execution case and after a commissioner had been appointed to give him delivery of possession that case was dismissed on part satisfaction in July 1928. The question before us arises as between defendants to the suit.

2. The present application for execution was filed on 20th November 19S0 by the respondents before us and the appellants contend that it is out of time being more than three years from the decree. The respondents say that it is within time by reason of the previous application of the plaintiff. We have to consider and apply the first part of Expl. 1, in Col. 3, Article 182 of the Schedule to the Limitation Act.

3. An application by one of several parties to a partition decree to be put into possession of the land allotted to him in severally is clearly enough within the first sentence of the explanation. The case of Ram Nath v. Harendra Kumar A.I.R. l931 Cal. 581 is a recent authority for this proposition. It is said, however that in the particular decree before us the provisions as to the kalikhola and the road were passed jointly in favour of more persons than one,' namely, in favour of all the parties to the suit. Hence it is contended that these defendants who now apply to have the decree executed are saved by the plaintiff's application of 1928. The view contended for is that if any one relief is joint the whole decree is joint even if other reliefs are given separately. The chief cases cited have reference not to the first part of the explanation but to the second part which is concerned with the persons against whom effect will be given to a previous application in execution: Subramanya v. Alagappa A.I.R. l931 Cal. 581 Barada v. Nabin [1909] 1 I.C. 408 and Nand Lal v. Dharam : AIR1926All440 . None of these were partition cases.

4. It seems to me that the decree before us is certainly one passed jointly in favour of the plaintiff and the present respondents, so far as the kalikhola and the road are concerned and unless the decree is for the present purpose to be regarded as though there was one decree for joint possession in favour of the respondents and the plaintiff and another land different decree for separate possession of their 'allotments by the respondents I think this appeal must fail. As the making and joint possession of the road is an integral part of the partition arrangements, I think that to apply the Explanation in this way to the decree (before us would be unreasonable and I [would agree with both the Courts below and dismiss this appeal with costs three gold mohurs.

C.C. Ghose, J.

5. I agree.


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