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Rajendra Kishore Basu Roy and ors. Vs. Kumar Promotha Nath Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1941Cal80
AppellantRajendra Kishore Basu Roy and ors.
RespondentKumar Promotha Nath Roy and ors.
Excerpt:
- .....by the decree-holders and no. 5 by the judgment-debtors. they relate to the execution of a decree passed in suit no. 85 of 1911 which was subsequently numbered as 40 of 1912. the question involved in these appeals relates to the extent of land to which the decree-holders are entitled to get joint possession. there were many proceedings between the parties since the decree had been passed; some of these have bearing on the contentions raised before us by the learned advocates of the parties. it is there-lore necessary to recite some facts. the behar zamindars are many in number. in 1911 they instituted five suits in respect of the self-same land. all the behar zamindars were not plaintiffs in the same suit, but some of them were plaintiffs and the rest pro forma defendants. the.....
Judgment:

1. Appeal No. 203 has been preferred by the decree-holders and No. 5 by the judgment-debtors. They relate to the execution of a decree passed in Suit No. 85 of 1911 which was subsequently numbered as 40 of 1912. The question involved in these appeals relates to the extent of land to which the decree-holders are entitled to get joint possession. There were many proceedings between the parties since the decree had been passed; some of these have bearing on the contentions raised before us by the learned advocates of the parties. It is there-lore necessary to recite some facts. The Behar zamindars are many in number. In 1911 they instituted five suits in respect of the self-same land. All the Behar zamindars were not plaintiffs in the same suit, but some of them were plaintiffs and the rest pro forma defendants. The principal defendants were many in number. We are concerned in this appeal only with defendants 112 to 114 and with the decree passed in Suit No. 40 of 1912. For brevity's sake the said defendants are called Raja brothers in these appeals. The other suits filed by the other Behar zamindars in 1911 were Nos. 198, 199, 91 and 90 of 1911 which were subsequently numbered Nos. 9, 52, 42 and 45 respectively. Some time after the institution of these five suits which were tried analogously, a Commissioner was appointed for local investigation. At the time of the local investigation the plaintiffs in these suits pointed out to him the disputed land. The Commissioner in his map has shown the disputed land as shown to him as bounded by the yellow lines. A good portion of the land so pointed out to the Commissioner was outside the plaint as originally filed. A portion of it which was not in the original plaint, was found in the possession of the Raja brothers who were not parties defendants to the suit as originally filed. They were later on added as parties defendants, being defendants 112 to 114, and by two petitions filed in Court by the plaintiffs dated 13th September and 9th December 1915 this additional land which was shown to the Commissioner at the time of the local investigation, as being part of the disputed land, was asked to be included in the plaint. The amendments were allowed on 17th December 1915, and on 23rd December 1915 the Court of first instance pronounced its judgment.

2. At the time of the local investigation, the Commissioner was asked to rely on the case map plot No. 1 (pratham khanda) of a map which has been marked Ex. 101. He has indicated the first plot of the said map by red lines. He has also indicated certain mouzas in plot No. 1 of the said map, Ex. 101, with the dotted lines. This map, Ex. 101, in which two plots are indicated as pratham khanda and dwitiy khanda is a part of Ex. 108, a compromise decree passed in the year 1892 in a suit between the predecessors-in-interest of the plaintiffs in the said five suits, and the predecessors-in-interest of the Raja brothers who were added as defendants, not only in suit No. 40 but also in the remaining four suits. From the judgment of the first Court, it appears that the plaintiffs based their claim to the portion of the disputed land which is the subject-matter of the appeals which we have to deal with, on the title given to them by the compromise decree of 1892, namely, Ex. 108 of which the map Ex. 101 is a part. The judgment of the first Court in favour of the plaintiffs proceeds upon Ex. 108, so far as this part of the case is concerned. By Ex. 108 the plaintiffs' predecessors were not given title to the whole of the pratham khanda of the map Ex. 101, but only to portions thereof. Plot No. 1 of the said map Ex. 101 covers the following mouzas, namely, Nao-gaon, Karpara, Birlapur, Hatarbhog and Duttogaon. The plaintiffs' predecessors were given title to the whole of Hatarbhog, and Dattagaon, and a portion, nearly one-half of Karpara and Birlapur which are within the red line indicated in the said map; and the predecessors of the Raja brothers, sixteen anna of Naogaon and the rest of Karpara and Birlapur outside the said line. In the decree, however, which was drawn by the Court of first instance the plaintiffs of suit No. 40 were given possession of

the lands to the south of plot No. 4 of Suit No. 9 of 1912, that is to the south of the attached char lands within plot No. 2 according to the amended plaint of the suit, which fall within the ambit of the map Ex. 101.

3. Similar decrees were passed in favour of the plaintiffs of the remaining four suits which we have mentioned above. As three of the other suits were valued at over Rs. 5000, the Raja brothers preferred three first appeals to this Court, namely no. 282 of 1916, No. 5 of 1917 and No. 23 of 1917. As Suit No. 40 of 1912 was valued at less than Rs. 5000, an appeal was preferred by the Raja brothers against the decree of the trial Court to the District Judge. The learned Judge allowed the said appeal and dismissed that suit. Two second appeals were preferred to this Court against the decree of the learned District Judge. We are concerned with the Second Appeal No. 164 of 1919 which was an appeal preferred to this Court by the plaintiffs in the said suit. The said second appeals and the three first appeals were heard analogously by a Division Bench of this Court and the judgment was pronounced on 1st September 1920. The effect of the judgment, in so far as it is material for our present purpose, is that the Raja brothers were given three months' time to file an additional written statement, apparently on the ground, that the Court of first instance had allowed amendment of the plaint after the hearing and shortly before the delivery of judgment. It was said that if the Raja brothers availed of the opportunity, of filing an additional written statement, a supplementary decree would be passed by the Court of first instance. But if they did not, in that ease the decree passed by the Court of first instance would stand. No additional written statement was filed by the Raja brothers, with the result that the decree as passed by the Court of first instance stood confirmed. That is the final decree passed in the suit between the parties. Some time afterwards, applications for receiver were filed by the Raja brothers in this Court, in the three first appeals and also in Second Appeal No. 164 of 1919, and four review rules were issued, namely, 2F to 4F and 2S of 1921. The first three rules related to the three first appeals and the last mentioned rule to the second appeal. The three rules 2F to 4F were heard together and were made absolute. The order passed in the rules is dated 11th April 1922. The material portion of the said: order is as follows:

And further that subject to the defence we have mentioned, the plaintiffs are further entitled! to all lands within their estate or decreed to them by the consent decree of 1892, up to the southern red. line in the commissioner's map which represents the corresponding line in the map connected with the consent decree of 1892.

4. This Court directed that the decrees in the first appeals should be prepared by including the aforesaid direction. In the review rule No. 2S of 1921, it was stated that it was not necessary to amend the judgment pronounced in the second appeal inasmuch as in the said judgment it was stated that the judgment in the second appeal would follow the judgment passed in the first appeals, and inasmuch as the judgment of the first appeals would now embody what was stated in the order passed in the review rules in connexion with the first; appeals, the portion which was added to the judgment, as a result of the review applications, would necessarily be incorporated in the judgment of the second appeal. In the decree, however, of the second appeal which was signed on 3rd July 1922, that portion of the review order which we have quoted above, and which was incorporated in the judgment of the second appeal was not recited, but the decree drawn up by this Court simply said that if the Raja brothers did not; avail of the opportunity given to them, of tiling an additional written statement, the decree of the first Court as passed in Suit No. 40 would stand. After the final judgment and the decree passed by this Court execution proceedings for enforcing the decree passed in Suit No. 40 were started. It is not necessary for us to detail the whole course of the execution proceedings; but there are three orders, one passed by the Court of first instance and two by this Court, which are relevant. The order passed by the Court of first instance is Order No. 130 dated 24th January 1927, and the two orders passed by this Court are dated 20th August 1935 and 13th January 1937 passed respectively in. Appeals from Appellate orders Nos. 224 of 1935 and 319 of 1936. We shall have to deal with the effect of these orders later on because one part of the argument of Dr. Basak who appears for the decree-holders, is based on these three orders.

5. As we have stated above, the present appeals relate to the question as to what land the decree-holders are entitled to take joint possession of in execution of the decree passed in suit No. 40. We have stated before that the map Ex. 101 consists of two portions described as pratham khanda and dwitiya khanda. The decree-holders' contention is that they are entitled to joint possession in respect of their share, of all the lands south of plot No. i in suit No. 9 which are included in both the khandas of map, Ex. 101. That is the extreme contention of the decree-holders. Alternatively, they say that they are entitled to joint possession in their share, of all the lands in-eluded in the pratham khanda of Ex. 101, that is to say, they are not only entitled to joint possession of all the lands of Hatarbhog and Dattagaon, but also of all the lands of Karpara, Birlapur and Naogaon.

6. The contentions of the judgment-debtors, the Raja brothers, are: (1) that the decree-holders cannot go beyond the southern yellow line depicted by the commissioner in the case map, and (2) that they are not entitled to all the lands up to the southern yellow line, but only of such portions thereof as fall within the pratham khanda of map Ex. 101, and even then they are not entitled to the whole of the said portion, but only to so much as was decreed to their predecessors-in-interest in 1892 by the compromise decree, Ex. 103, of which the map Ex. 101 is a part. The contention therefore of the judgment-debtors in effect is that the decree-holders can only get joint possession of so much of the lands which were decreed in favour of their predecessors in 1892 by Ex. 108 which fall within the yellow lines of the case map, the lands within the yellow line of the case map being the subject-matter of the dispute according to the final amendment of the plaint. The Court of first instance did not accept in full either the contention of the decree-holders or of the judgment-debtors. It held that the decree-holders could not get possession of any land to the south of the southern yellow line of the case map, but they were entitled to the whole of the lands which fall within the red line in the case map prepared by the amin, so far as they are covered by the lands included within the yellow line. There were appeals filed both by the decree-holders and the judgment-debtors in the Court of the District Judge. The learned District Judge held that the decree-holders' claim to possession was not limited by the southern yellow line of the case map, but they could get possession of lands which fell within the red line depicted in the case map. In this respect the learned District Judge accepted the decree-holders' contention. Against this portion of the order, the judgment-debtors have preferred appeal No. 5 of 1939. The learned District Judge further held that the decree-holders were not entitled to all the lands which fall within the said red line but only to such portions of the same which fell within the red dotted lines which had been decreed to their predecessors-in-interest by the compromise decree of 1892, that is to say, the decree-holders were entitled to get the whole of Hatarbhog and Dattagaon and only half of Karpara and Birlapur which fall within the red unbroken lines. From this part of the order the decree-holders preferred Appeal No. 203 of 1938.

7. We shall deal with both these appeals together. Dr. Basak who appears for the decree-holders says : (1) that his clients are entitled to get joint possession of all the lands which fell within the ambit of map Ex. 101, that is to say all the lands to the south of plot No. i of suit No. 9 of 1912, which are covered by both the khandas of map Ex. 101; and (2) that at any rate his clients are entitled to joint possession of all the lands to the south of the said plot No. 4 which are covered by the red lines depicted in the case map by the commissioner; by the case map we mean the map prepared in the suit, that is to say, his clients are entitled to joint possession not only of what has been given to them by the learned District Judge, but also of mouza Naogaon and the rest of Karpara and Birlapur. Mr. Gupta who appears for the judgment-debtors contends that in this respect the learned District Judge is right, that is to say, the decree-holders are entitled to joint possession of so much of the first plot (pratham khanda) which had been decreed to them in 1892 by Ex. 108. In support of his appeal he contends further that any portion covered by the red line which goes beyond and are to the south of the southern yellow line in the case map must be excluded from these proceedings, because those portions of the land were not the subject-matter of the suit. We shall now deal with the merits of the respective contentions. Dr. Basak bases his contention on two grounds. He says, firstly, that the question cannot now be re-opened because the matter had been settled between the parties at a previous stage of the execution proceedings by order No. 130, dated 24th January 1927, and the two orders passed by this Court on 20th August 19S5 and 13th January 1937. He further contends that at any rate that is the meaning of the decree which was passed in the suit. We shall first of all examine Dr. Basak's contentions.

8. It appears from the record that objections were preferred to the execution of the decree by the Raja brothers before the subordinate Judge. Some of those objections were dealt with by the learned subordinate Judge by order No. 130, dated 24th January 1927. One of those objections related to the question as to whether the decree-holders were entitled to joint possession after evicting the Raja brothers, or they were entitled to joint possession with the Raja brothers. The final decree directed eviction of the Raja brothers; but the contention of the Raja brothers was that by reason of subsequent events they could not be evicted from the land inasmuch as after the decree they had purchased the shares of some of the decree-holders. This question has been dealt with in order No. 130. The Court gave effect to the contention of the Raja brothers and held that in spite of the directions in the decree, the decree-holders were only entitled to joint possession with the Raja brothers, that is to say they could not get joint possession with their other cosharers after evicting the Raja brothers. In this order there is the following passage:

As regards the other objections I find that the decree-holders have got a decree for joint possession in the lands to the south of plot No. 4 of suit No. 9, and covered by map Ex. 101, i.e., to the second portion of the decretal lands after evicting the judgment-debtors 112 to 114.

9. The first portion of the decretal land was the land which had been attached by the Collector under Section 146, Criminal P. C. In this land the Raja brothers are not at all interested, and in respect of this land the decree-holders only got a declaration of title, their claim for possession being dismissed. The learned Judge again went on to say as follows : 'But the order about evicting the said judgment-debtors is incapable of execution.' After discussing the matter, he came to the conclusion that the decree-holders could only get joint possession and they could not evict the Raja brothers. In the order passed in Miscellaneous Appeal No. 224 of 1935, this Court directed the subordinate Judge to appoint a commissioner to ascertain at the locality the decretal land as determined by the executing Court by order No. 130, dated 24th January 1927, and to deliver possession of the said land to the decree-holders in accordance with the provisions of Order 21, Rule 35 (2), Civil P. C. After this order was passed by this Court, the learned subordinate Judge before appointing a commissioner wanted to interpret order No. 130. Against the order of the learned subordinate Judge which had been affirmed by the learned District Judge on appeal, Miscellaneous Appeal No. 319 of 1936 was filed, and there was an alternative application in revision.

10. After dealing with the preliminary question, as to whether an appeal lay, or not, this Court said that it could, at any rate, interfere in revision and it went on to deal with the merits of the controversy. This Court directed the learned subordinate Judge to appoint a commissioner at once to demarcate the decretal land in the locality without at that stage interpreting order No. 130. Then there was a direction, that if there was any dispute in course of demarcation between the parties as regards the extent and position of the decretal land, the learned subordinate Judge was to determine those questions, after the commissioner had submitted his map and report. In our judgment the combined effect of order No. 130 and of the two orders of this Court which we have recited above is this : that the question as to whether the decree-holders were entitled to get possession of any portion of the land which fell within the red line of the case map but was beyond the southern yellow line thereof, was final between the parties, that is to say, it is not open to the judgment-debtors now to say that the decree-holders can only get possession of such land which falls within the southern yellow line. But the question as' to whether the decree-holders are entitled to the whole of the said block of land which falls within the red line or only to a portion thereof was left for determination by the learned subordinate Judge after the commissioner had submitted his map and report. That, in our judgment, is the effect of the last order of this Court dated 13th January 1937 passed in Miscellaneous Appeal No. 319 of 1936. That is indicated by directing the learned subordinate Judge, not only to determine the dispute as to the position of the decretal land but also the dispute as regards the extent of the disputed land. We cannot therefore give effect to Dr. Basak's contention that his clients are entitled to the whole of the block of land which falls within the red line, on the ground that the matter had been finally adjudicated between the parties at a previous stage of the execution proceedings. The reasons which we have given for disposing of Dr. Basak's contention also dispose of the point raised by Mr. Gupta in his Miscellaneous Appeal No. 5 of 1939.

11. It is therefore open to us to enter into the merits of the question, and for the purpose of seeing whether the contention raised by Dr. Basak is correct or not, we have to look into the decree. The decree-holders cannot claim any portion of the land which falls to the south of plot No. 4 but which falls within the dwitiya khanda of Ex. 101. At the time when the amin went to the locality for local investigation before the trial he was asked to plot only the prathama khanda of Ex. 101 in the locality which he did. The plaintiffs never attempted to have the second khanda of Ex. 101 located on the case map. These facts have been pointed out by both the Courts below and they indicate clearly that the second khanda of Ex. 101 was never the subject-matter of the dispute. The two amendment petitions of the plaintiffs filed on 13th September 1915 and 9th December 1915 which had been allowed by the Court on 17th December 1915 indicate clearly that the plaintiffs claimed title to and possession of only that portion which they had pointed out to the amin at the time of the local investigation, namely the land which was enclosed by the amin in the ease map, by the yellow lines. The land so enclosed by the yellow lines covers a good portion of the first khanda or portion of the map, Ex. 101. It does not cover any portion of the second khanda of Ex. 101 which is to the south of the, first khanda. We cannot therefore give effect to the first contention of Dr. Basak, namely that his clients are entitled to the lands to the south of plot No. 4, which are also covered by the second khanda of Ex. 101.

12. There remains the question as to whether the decree-holders are entitled to joint possession of all the lands included in the first khanda of Ex. 101 as plotted on the case map. To us it seems that the decree as drawn up by the Court of first instance and which was affirmed by this Court is ambiguous. The words, 'within the ambit of the map Ex. 101' used in the decree raise the ambiguity. It is therefore necessary to look to the terms of the judgment of the Court of first instance. Even if there had not been any proceeding in review in this Court, the meaning of the decree as made by the Court of first instance which was affirmed by this Court, read along with the judgment is clear. It is this : that the plaintiffs were given a decree only to such portion of the first khanda of Ex. 101, in respect of which their predecessors were given a decree in 1892 by Ex. 108, because the whole judgment on the basis of which the decree was passed proceeds on the footing, so far as this part of the case was concerned, that the plaintiffs were entitled to that portion of the land in suit because of the title acquired by their predecessors-in-interest by the compromise decree, Ex. 108. Whatever ambiguity there was in this decree (which was confirmed by this Court) has been removed by the order passed on review by this Court on 11th April 1922. That order clearly states that the decree-holders would be entitled to possession up to the southern red line plotted in the commissioner's map, that is to say, in the case map prepared by the amin at the time of the suit which had been decreed to their predecessors-in-interest by the consent decree of 1892. Even if it was not possible to hold that the decree by itself was not ambiguous, and a reference to the judgment was not legitimate, the order passed on review on 11th April 1922 which is the final judgment between the parties, defines exactly the rights of the decree-holders, and even if the directions contained in the said judgment passed on review, had not been embodied in the decree, there would have been no bar in bringing the decree into conformity with the final judgment, inasmuch as the rights of third parties have not been intervened. If it were necessary, we would have directed an amendment of the final decree passed by this Court so as to bring it in conformity with the judgment passed on review. But as we have already said, that even without this amendment, the view we have taken follows from the construction of the decree taken along with the judgment. The result is that we dismiss both the appeals. As both sides have failed to substantiate their contentions we make no order as to costs.


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