KAMALA BALA GARAI Vs. SAMAR SEN

JUDGEMENT

(1.) One Haricharan Bose was a tenant in respect of a premises comprised of 2 rooms, 1 kichen, 1 bath and one privy in Holding No. 133, Keshab Chandra Sen Street. The plaintiff filed an ejectment suit No. 1364 of 1970 against the heirs of the said Haricharan including the mother of the present judgment debtor Samar Sen. The judgment debtor Samar Sen happens to be the son of one Pravabati who has been wrongly described as Rajlaxmi alias Rajubala in ejectment suit No. 1364 of 1970. The said ejectment suit ended in a decree on 6.1.72. It is stated that the judgment debtors thereafter amicably vacated possession and the said premises was let out to Haricharan's grandson Samar Sen. The plaintiff filed ejectment suit No. 433 of 1974 against Samar Sen which was decreed in favour of the present plaintiff on 30.9.77. The judgment and decree were upheld in F.A. 14D of 1978 by this Court on 8.7.81. The plaintiff thereafter levied an execution being execution case No. 452 of 1977. The decree could not be executed by the bailiff since he failed to identify the property. The judgment debtor filed Misc. Case No. 816 of 1983 under section 47 Civil Procedure Code which was dismissed by the Executing Court on 6.6.85. In revision, Sukumar Chakraborty, J. rejected the revisional application of the judgment debtor. Another attempt to deliver possession by the bailiff also proved unsuccessful. The judgement debtor again filed a Misc. Case No. 774 of 1986, which was rejected by the Executing Court. The judgement debtor moved the High Court in C.O. No. 1233 of 1987. High Court directed to deliver possession with the aid of a Pleader-Commissioner, who, however, failed to deliver possession and he submitted his report on 1.12.87 stating that the decretal rooms could not be identified with reference to the schedule of the property given in the decree. In such circumstances the decree-holder filed this application for amendment of the decree and the schedule of the plaint.

(2.) The opposite party contends that the Court cannot amend the decree if there is mistaken identify of the property so much so that the property cannot be identified at all. It is however, contended that misdescription of property would justify the amendment of the decree and the plaint.

(3.) There cannot be any dispute that the opposite party is possessing a property which he took settlement someone in 1972. He has admitted in his deposition (Annexure C) that he is in occupation of the disputed premises since 16,2.72. A Xerox copy of the rent receipt has been filed by the opposite party which has been marked as Annexure 'A' to the affidavit-in-opposition It can no mere be disputed, therefore, that the opposite party came in possession of the decretal premises sometime in 1972. It is contended that the petitioner take possession of the premises involved in ejectment suit No. 1364 of 1970. In execution of the decree in the said suit and by virtue of execution of the decree in ejectment suit No. 433 of 74, the petitioner was not required to take possession of the said premises. The contention of the petitioner is that the petitioner was not required to execute the decree to obtain possession of the premises let out to petitioner's maternal grandfather Hari Charan Bose since the judgment debtors of the said suit de1ivered amicable possession to the petitioner, and thereafter the opposite party was inducted in the said premises. It may be noted that ejectment suit No. 1364 of 1970 was decreed on 6.1.72 and the opposite party came in possession of the disputed premises sometime thereafter. Therefore, the contention of the petitioner cannot be lightly brushed aside. It may not be overlooked that the opposite party happens to be the grandson of Hari Charan Bose. The heirs of Hari Charan, who were judgment debtors in Title Suit No. 1364 of 1970, were all relations of the opposite party and therefore, it was not unlikely that they parted with possession of the decretal property amicably in favour of the landlady having regard to the fact that the said property was again being demised to their relation Samar Sen.