THANKAMMA Vs. CHACKI AMMA

JUDGEMENT

(1.) The 13th defendant is the appellant. The dispute between herself and her mother, the 8th defendant is about items 3 to 6 of the plaint schedule. The suit was for partition of these and other items of properties belonging to the tarwad of these parties. The aforesaid items belonged to the tarwad and were outstanding on lease. The 8th defendant had obtained an assignment of the leasehold right. This right has thus become her special right. At the stage of the final decree in the suit the parties settled all their differences and agreed to a division as proposed in a compromise petition. The terms of this compromise decree were incorporated in the final decree. One of the terms agreed to by the parties was in respect of the value of improvements to the 8th defendant. An amount of Rs. 58 as. 8 was agreed to be paid to her on this account and a provision was made that she may draw this amount from the deposit made in court by the Receiver appointed in the Suit. She in her turn agreed to surrender items 3 to 6 in due course. These terms are incorporated in paragraph 16 of the compromise decree. The dispute now centres round the construction to be put upon this clause. On the strength of the above-mentioned term in the decree, the 13th defendant obtained delivery of items 3 and 5. When she applied for delivery of items 4 and 6, the 8th defendant objected and also applied for getting re-delivery of items 3 and 5. Her contentions were upheld by the lower court and hence this appeal.

(2.) The contention urged on behalf of the 8th defendant is that her leasehold right in respect of items 3 to 6 still subsists and that the compromise decree so far as it relates to these items has to be deemed to be a decree for eviction on the strength of the lease. It is also contended that such eviction proceedings are stayed by section 4 of Act 1 of 1957. We are clearly of the view that these contentions are untenable. The compromise decree was passed on 18-10-1955 i.e., long prior to the passing of Act 1 of 1957. Sec. 4 of this Act could be invoked by the 8th defendant only if the leasehold in her favour was subsisting in her favour at the time of the Act. When the compromise decree was passed, it was perfectly open to her to retain her leasehold right or to abandon that right. If she had elected to retain that right, a provision to that effect would have been made in the compromise petition. It was not so made. In fact there is nothing in that petition to indicate that she wanted to retain her leasehold right. On the other hand it is abundantly clear that she had given up that right and agreed to receive a specified sum as value of improvements due to her. She agreed to treat items 3 to 6 also as divisible properties of the tarwad. The clear stipulation is to the effect that along with other items of tarwad properties in her possession, the 8th defendant will surrender items 3 to 6 also to the 13th defendant in due course. The expression "due course" cannot be taken to mean that the parties contemplated any fresh proceedings on the strength of the lease which the 8th defendant had in her favour. The payment of value of improvements was not also made a condition precedent to the surrender of items 3 to 6. The right to recover that amount had to be enforced independent of the surrender of items 3 to 6. For getting the amount of Rs. 58 as. 8, the 8th defendant has also to apply to the court. Similarly in case of her refusal to surrender items 3 to 6, the 13th defendant could seek the aid of the court for getting delivery of those items. It is merely recovery of possession of the items allotted to her as per the final decree in a partition suit. This cannot in any sense be said to be a decree for eviction on the foot of a lease. As already stated, the 8th defendant had willingly and voluntarily surrendered that right and had agreed to items 3 to 6 also to be partitioned as any other tarwad property. It follows therefore that section 4 of Act 1 of 1957 has no application to this case and that the 8th defendant is not entitled to raise any objection to the delivery of items 3 to 6 in favour of the 13th defendant on the basis of the compromise decree. In the result, this appeal is allowed with costs and the order of the lower court is reversed. The 13th defendant will retain possession of items 3 and 5 which have already been delivered over to her. She will also be entitled to get recovery of possession of items 4 and 6.