SANKARSAN PRUSTY Vs. BANSIDHAR PRUSTY AND OTHERS

JUDGEMENT

(1.) Defendant No. 1 is the petitioner. The plaintiff filed Title Suit No.21 of 1977 for declaration of title and delivery of possession of l/3rd of the suit schedule property from the northern side. In the plaint it was alleged that the disputed properties were acquired by the aid of joint family fund, and, therefore, was treated as joint family property. In the year 1957 all the three brothers by mutual partition divided the property among themselves and in pursuance of the said partition an allotment sheet was drawn on 30.9.1957. After the said partition all the brothers were in separate possession of the properties allotted to each of them. In the year 1969 by way of a mutual agreement 1/3rd from the northern side measuring A. 023 decs, was re-allotted to the share of the plaintiff. As defendant No. 1 disturbed in the possession of the plaintiff, he filed the above suit. As the defendants did not appear, they were set ex parte and the following ex parte decree was passed:-

(2.) It is no more res integra that ordinarily the executing Court cannot go behind the decree. Where there is no ambiguity in the terms of a decree, the Court is bound to interpret it according to its plain meaning. In case of ambiguity, in order to ascertain die meaning of the decree, the executing Court may refer to the judgment and pleadings in the case. (See Chandra Sekhar Rath Vs. Lingaraj Mohapatra & Others, 34 (1968)CLT 288, Biswanath Vs. Smt. Uttara Bewa and Others, AIR 1988 Ori 9, Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, AIR 1972 SC 1371.

(3.) In this case in the plaint the plaintiff categorically prayed for declaration of tide and recovery of possession regarding l/3rd of die disputed property from the northern side. After considering die materials on record, the Trial Court came to the conclusion that die plaint schedule land belonged to the joint family and further accepted mutual partition and mutual exchange.