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Khagendra Nath Bose Vs. Prafulla Kumar Bose and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1931Cal170
AppellantKhagendra Nath Bose
RespondentPrafulla Kumar Bose and ors.
Excerpt:
- .....6 sq. ft.) and lot e 3 k 4 ch. 18 sq. ft.).3. defendant 1 applied for execution of the decree and obtained delivery of possession of the three lots as demarcated on the spot by a commissioner. the plaintiff then applied for execution, and when a commissioner appointed to give him possession went to measure the lots, he found that of the two lots b and e which lay contiguous to each other, lot b, as it appeared on the spot-would, not give the area 7 k. 5 ch. 31 sq. ft. as contemplated by the decree. this, he found, was due to two causes, first, that a portion of the land on its west side had been encroached upon by some third parties; and second, that the former commissioner had allotted to defendant 1 as e an area much in excess of 3 k. 4 ch. 18 sq. ft. which the decree entitled him to......
Judgment:

1. The final decree in a suit for partition, in which there were several parties, provided amongst others that two of the parties, namely the plaintiff and defendant 1, would get the following allotments:

Plaintiff-Lot A (6 K. 9 Ch. 31 Sq. ft.) and Lot B (7 K 5 Ch. 31 Sq. ft.).

2. Defendant 1 - Lot C (18 K. 14 Ch. 30 Sq. ft.); Lot D (5 K. 12 Ch. 6 Sq. ft.) and Lot E 3 K 4 Ch. 18 Sq. ft.).

3. Defendant 1 applied for execution of the decree and obtained delivery of possession of the three lots as demarcated on the spot by a commissioner. The plaintiff then applied for execution, and when a commissioner appointed to give him possession went to measure the lots, he found that of the two Lots B and E which lay contiguous to each other, Lot B, as it appeared on the spot-would, not give the area 7 K. 5 Ch. 31 Sq. ft. as contemplated by the decree. This, he found, was due to two causes, first, that a portion of the land on its west side had been encroached upon by some third parties; and second, that the former commissioner had allotted to defendant 1 as E an area much in excess of 3 K. 4 Ch. 18 Sq. ft. which the decree entitled him to. He then sliced off a portion out of what defendant 1 had already got and included it in B, with the result that, plaintiff got as Lot B. 7 K. 0 Ch. 27 1/2 Sq. ft. in the place of 7 K. 5 Ch. 31 Sq. ft. which the decree gave him, and defendant 1 got as Lot E. 3 K. 5 Ch. 9 Sq. ft. in the place of 3 K. 4 Ch. 18 Sq. ft. which he got under the decree.

4. It would thus appear that defendant 1 still got something in excess of the decree. He nevertheless objected to his allotment of which he had already obtained possession being disturbed, and the Subordinate Judge upheld his objection and cancelled the delivery of possession which was subsequently made as aforesaid. The plaintiff has then appealed.

5. The whole question in the appeal is whether the plaintiff is bound by the delivery of possession which defendant 1 had obtained. We called for the records of the previous execution case, and on reference thereto are satisfied that in those proceedings the plaintiff was no party and there is nothing to indicate anywhere that he was even aware of them. The respondents are unable to controvert this position. In such circumstances it must be held that the plaintiff is not bound by what the commissioners or the officers of the Court did in the matter of allotment of Lot E in favour of defendant 1. What the present commissioner has done is, in our opinion, perfectly reasonable, and defendant 1, having got more than what the decree gives him, has no just cause of complaint.

6. We accordingly allow the appeal, and, setting aside the order of the Subordinate Judge dated 14th July 1928, direct that the delivery of possession according to the commissioner's report dated 10th March 1928 be confirmed.

7. There will be no order for costs in this appeal.


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