RAM SARUP Vs. PURAN

JUDGEMENT

(1.) THIS appeal came up for hearing in the first instance before my Lord the Chief Justice and was referred by him to a Division Bench for decision by order dated January 23, 1970. This is how this Appeal comes up for hearing before us.

(2.) THE facts of the case have been given in detain in the order of reference but it is necessary to recapitulate them in order to decide the point of law involved. The facts are that the predecessors of the present plaintiff-appellants filed a suit on April 20, 1905, against Kaithal, defendant 4, and predecessors of the other defendants, who are all respondents to the appeal, for the possession of the entire land left by Smt. Jiwani, widow of Dilsukh, who held the estate before her death for her life as widow's estate. The land measured 224 Bighas 5 Biswas. It was alleged by the plaintiffs of that suit that they were the sole heirs of Dilsukh and Smt. Jiwani and were entitled to inherit the entire land. It may be stated here that the common ancestor of the parties had three branches. The plaintiffs and their predecessors belonged to one branch while the defendants and their predecessors belonged to the second branch. Dilsukh belonged to the third branch and had died issueless. In the revenue records prepared in 1900-1901 Smt. Jiwani was described as being in possession of the said land as the widow of Dilsukh and the land held by her was an occupancy tenancy. She died in 1904 and the Jamabandi of the year 1904-1905, Exhibit P. 3, shows that on her death the land was mutated as Shamlat Thula Pandu, in other words, as the common land of the rightholders of Thula Pandu in the village. This Thula Pandu solely consisted of the plaintiffs and the defendants of the suit of 1905. There was no other co-sharer in that Thula. The entry in the mutation, which was subsequently incorporated in the Jamabandi, was that the rightholders of Thula Pandu had shares in this common land according to their shares in the khewat (hasab rasad khewat.) this entry was channelled in the suit as the plaintiffs then claimed that they were the sole heirs of Dilsukh but at the trial of the suit they gave up their claim to one-half of the estate and only claimed the possession of one-half of that estate presumably on the basis that the plaintiffs and defendants were equally entitled to succeed to the land left by Dilsukh and his widow Smt. Jiwani. The learned subordinate Judge passed a decree in favour of the plaintiffs against the defendants in respect of the one-half of the estate of Dilsukh left by his widow Smt. Jiwani, on July 17, 1905. No appeal was taken against that a decree and thus it became final. It is also an admitted fact that this decree was never executed through the Court by the plaintiff-decree-holders but it is alleged that in 1909, the plaintiffs had taken possession of more land than fell to their share according to the said decree. Before filing the suit in 1905, the plaintiffs alleged that they were already in possession of 89 Bighas 18 Biswas and 7 Biswans is of land. The remaining 134 Bighas 12 Biswas 6 Biswans is of land was in possession of the defendants according to the entry in Jamabandi hasab rasad khewat. The present plaintiffs and their predecessors continued to remain in possession of land which was more than their share till July, 1954, when the proceedings for the consolidation of holdings in their village started. In repartition, the Consolidation Officer, in spite of the protest by the plaintiffs, allotted the lands to the plaintiffs and defendants in accordance with the entry in the Jamabandi husab rasad khewat and not in accordance with the decree which had been passed in 1905 and which, being inter parties, was binding on them. The total area of the holding divisible between the plaintiffs and defendants on consolidation came to be 286 Kanals 8 Marlas. Out of this area, 62 Kanals 8 Marlas were left joint for Thula Pandu and the remaining 244 Kanals were distributed amongst the plaintiffs and the defendants. The area allotted to the plaintiffs measured 102 Kanals 10 Marlas while 121 Kanals 10 Marlas were alleged to be in the possession of the defendants. The plaintiff - appellants thus claimed that they had been allotted 39 Kanals 10 Marlas of land less than what was their due in accordance with their half share in the entire joint land. This area of 39 Kanals 10 Marlas was one half of the difference in the area allotted to the plaintiff -appellants and the defendant -respondents as stated above. Before the District Judge, however, it was made clear that 62 Kanals 8 Marlas of land which had been kept joint and not divided, was out of the entire holding of 285 Kanals 8 Marlas and out of the remaining land measuring 224 Kanals, the plaintiffs were entitled to the allotment of 112 Kanals on account of their one-half share but they were allotted only 102 Kanals 10 Marlas while defendants were allotted 121 Kanals 10 Marlas. Thus the plaintiffs were only entitled to recover the area of 9 Kanals 10 Marlas from the defendants out of the area allotted to them in lieu of the joint holding and they were further entitled to one-half area out of 62 Kanals 8 Marlas which was left joint.

(3.) IT was pleaded by the defendant -respondents that the suit was not maintainable and the plaintiff -appellants were not entitled to any decree in view of the fact that the decree obtained by the plaintiffs' predecessors in 1905 had never been executed through Court as prescribed in O. 21, R. 35 (2) of the Code of Civil Procedure. That decree having become inexecutable, the possession of the land cannot be claimed by the plaintiff -appellants under that decree. The learned lower Courts have accepted that argument completely forgetting that the plaintiff -appellants never claimed the possession of the land under that decree. Their allegations in the plaint were that they had taken possession of more land than was decreed to them and remained in possession of that land, till they were deprived of it in consolidation proceedings in 1958 when the possessions were delivered to the parties in accordance with the repetition scheme. It was admitted by the defendants that the plaintiffs had taken share under the decree of 1905, and, therefore, in our opinion, that decree should be deemed to have been satisfied. The abuse of action for the present suit is not the decree of 1905, but the allotment of less area to the plaintiffs in consolidation proceedings than they were entitled to and the claim is that the deficiency in their area should be made good. Reference to the decree obtained in 1905 has been made in support of their claim that they were entitled in consolidation proceedings to have one-half of the area left by Dilsukh and not in accordance with the entry in the Jamabandi hasab rasad khewat. It is true that the decree of 1905 became inexecutable by lapse of time which only means that the executing Court would not have rendered any assistance to the decree-holders in obtaining the possession in accordance with that decree if an application of execution was made to it but it does not obliterate the decree which was validly passed. One of the points determined in that decree was the extent of the share of the predecessors of the present plaintiff -appellants and the predecessors of the defendants as well as defendant No. 4 who was personally a party to that suit. The finding with regard to the respective shares of the plaintiffs and the defendants in the land left by Dilsukh, is still binding on the parties and the plaintiffs can claim that they are entitled to one-half of the estate left by Dilsukh on the basis of the finding given in the judgment on the basis of which the decree of 1905 was based. We are supported in this view by the judgment of Walsh, J. , of the Allahabad High Court, in Mt. Lakhrani Kaur v. Dhanraj Singh, 32 Ind Cas 634 (2) = (AIR 1916 All 261), which decision was upheld on this point by the Letters Patent Bench whose judgment is reported as Dhanraj Singh v. Lakhrani Kuar, (1916) 14 All LJ 709 = (AIR 1916 All 163 ). The facts of that case were that Lakharni Kuar brought a suit against the defendant in 1907 for possession of land which was decreed in her favour in November, 1907. Her husband had died in 1904 and the defence put forth by the defendant was that the land had been given to him orally by the husband of Lakhrani Kuar. This defence failed. She filed a second suit on February 26, 1914, for possession of the land on the ground that she had obtained physical possession in 1908 and was dispossessed again by the defendant. The possession alleged to have been taken by Lakhrani Kuar in 1908 was not by means of execution proceedings through the Court and the defendant pleaded that since the decree inexecutable, she was not entitled to maintain the second suit for possession and it was also denied that she had infact obtained physical possession of the land in 1908. The learned Judge referred to evidence and believed the witness for Lakhrani Kuar who stated that she had in fact obtained the physical possession of the land in 1908 and did not believe the defendant when he stated that she never obtained possession of the land. On these facts, the learned Judge held that the obtaining of possession by Smt. Lakhrani Kuar in 1908 amounted to satisfaction of the decree and a fresh cause of action arose to her subsequently when the defendant retook possession. In appeal, the learned Judges endorsed that decision with the following observation: