JOGI DAS Vs. FAKIR PANDA

JUDGEMENT

(1.) THIS is an appeal by the defendants against the judgment of the 1st Addl. District Judge, Cuttack, in Title Appeal No. 146 of 1962 confirming the judgment of the First Additional Subordinate Judge, Cuttack, in Title Suit No. 214 of 1959.

(2.) THE plaintiffs suit, in short, was for declaration of title and confirmation of possession or in the alternative for recovery of possession in respect of 4 decimals 5 Kadis of land out of plot No. 620 and also for a permanent injun- ction restraining the defendants from interfering with the plaintiff's possession of the aforesaid portion of the land. The plaintiff also claimed damages for Rupees 300/and a direction on the defendants to demolish a certain construction. He claimed title to the disputed land on the basis of a compromise entered into between himself and defendants 3 and 4 and one Svamsundar Das (since dead) in a previous suit (T. S. No. 170/42 of 1955-57 in the Court of the 1st Munsif at cuttack ). The defendants contested the suit on various grounds, and I would refer to the same as and when necessary. The plaintiff succeeded in both the Courts below in getting a declaration that he acquired title to the disputed land on the basis of the compromise decree in the previous suit and was entitled to recover possession of the same from the appellants.

(3.) MR. Basu, the learned counsel for the appellants, seriously contended at first that as title of plot No. 620 was not in dispute in the previous suit, the decree passed in the same suit on the basis of the compromise comprising terms for relinquishment of right in plot No. 620, would be a case within the exception contained in Section 17 (2) (vi) of the Registration Act, and the said decree not having been registered did not pass any title on plot No. 620 to the plaintiff. It was also contended that even in case the said decree was good and effective (which was challenged seriously) then the plaintiff should have proceeded in execution of the said decree without filing a fresh suit of this nature, which would be barred by res judicata; and that as the compromise petition forming a part of the said decree did not anywhere mention that 4 decimals 5 Kadis of plot No. 620 was transferred to the plaintiff, his right and title to the same could not be established on the basis of the said decree. It was further submitted that the terms of the compromise in the previous suit, clearly provided that in case defendants 2, 3 and 5 in the said suit ever claimed their right in plot No. 620 then in the case the plaintiff would be entitled to claim his right over the said plot as he claimed in the plaint of the previous suit. On this it was contended that since one of the above mentioned defendants, namely defendant No. 3, asserted his right over plot No. 620. the plaintiff had the right only to pursue his original remedy in his previous suit, and did not by the said decree acquire any title to the suit land,