AMAN Vs. PANNA LAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against the judgment and decree dated the 4th of February, 1959 passed by the Second Addl. District Judge Gwalior arising out of Civil Original Suit No. 512 of 1953 of the Court of the Addl. Civil Judge 1st Class City Lashkar.

(2.) THE facts giving rise to this suit may briefly be stated thus. The plaintiffs had formerly filed a suit for possession of a house against the present respondent. On appeal the first appellate Court remanded the suit to the trial Court for decision as to the amount of compensation to be awarded to the defendant in respect of improvements made by him to the property in dispute. The decision of the appellate Court was affirmed on appeal by the High Court. The trial Court determined the amount of compensation to be awarded to the defendant but, due to in advertance, in the decree which was ultimately passed no mention was made that possession of the house was to be given to the plaintiffs. No appeal was preferred by the plaintiffs against this decree. After the period of limitation for filing an appeal had expired several unsuccessful attempts were made by the plaintiffs for an amendment of the decree passed by the trial Court. Thereafter they tried to get possession of the house in execution proceedings. But their claim for possession was finally rejected by the High Court. Ultimately the plaintiffs filed the present suit claiming (1) the correction of the decree passed in the previous suit or (2) an independent decree for possession or (3) for return of the costs of improvements and mesne profits already realised by the defendant. The trial Court dismissed the suit on the findings arrived at by it on issues Nos. 5,8 & 9. An appeal against the decree passed by the Court of first instance was also dismissed. The plaintiffs have now come up in Second appeal.

(3.) BY his judgment dated the 24th of June, 1938 the City Sub -Judge, Lashkar held that the plaintiff's should pay a sum of Rs. 90 to the defendant by way of cost of repairs to the house in suit. Neither the judgment passed by the original Court, nor the decree framed on its basis, however, made any mention about possession of the house in dispute being handed over to the plaintiffs. The defendant has admittedly recovered the amount of Rs. 90 awarded to him in execution of the decree passed by the trial Court.