MATHURA PRASAD MISSIR Vs. MOSST FULMATI KUER

JUDGEMENT

(1.) This Miscellaneous Second Appeal arises out of a restitution matter. An application under Section 144 of the Code of Civil Procedure for restitution of properties mentioned in Schedule I of the application was died before the Second Additional Subordinate Judge, Muzaffarpur. This application was dismissed. There was an appeal against the aforesaid decision. On appeal restitution has been allowed and hence this Second Miscellaneous Appeal.

(2.) The circumstances leading to the filing of the restitution application under Section 144 of the Code of Civil Procedure may be briefly stated. A Title Suit being Title Suit No. 74 of 1949 was filed by Mathura Prasad Missir. The suit was for declaration of title and recovery of possession in respect of sixteen annas share of tauzi No. 19555 in the district of Muzaffarpur. The suit was dismissed. A First Appeal was preferred First Appeal 465 of 1954. This appeal was allowed and the plaintiff-appellant was held entitled to recover possession of the suit properties from the defendants. After the disposal of the first Appeal Execution case 13 of 1963 was started and the plaintiff decree holder obtained delivery of possession on 22.12.1963. Since the zamindary interest had already vested in the State of Bihar, the possession was obviously obtained in respect of the bakast lands. The Letters Patent Appeal being L.P.A. 96 of 1960 (hereinafter to be referred as L.P.A.) was filed by some of the respondents in the First Appeal. The L.P.A. was allowed to this extent that while the title of the plaintiff to the proprietary interest till the date of vesting was declared, his prayer for recovery of possession was disallowed. The judgment in L.P.A. 96 of 1960 was delivered on 16.4.1965. Soon hereafter an application under Section 144 of the Code of Civil Procedure for restitution of the properties mentioned n Schedule-I of that application was filed giving rise to Miscellaneous Case No. 23 of 1965.

(3.) The first contention that has been raised by the learned Counsel for he appellant is that the effect of the decision in L.P.A. 96 of 1960 was not to disturb the decision in the First Appeal (sic) concerned. Learned Counsel contended that what was held was that the plaintiff could not get recovery of possession of the proprietory interest in the said tauzi. So far as the right to recover possession of bakast lands are concerned it remained unaffected by the decision in the Letters Patent Appeal. It is difficult to accept this contention. There is no specific mention of bakast lands in the plaint. Neither the judgment of the trial court nor of this Court in First Appeal mentioned anything specifically about the bakast lands. The contest both in the trial court and the First Appellate Court. (High Court) was in relation to recovery of possession of the tauzi in question. It is in this context that the observation in the Letters Patent Appeal has to be under stood and appreciated. Learned Counsel for the appellant relied on the following sentences in the judgment of the Letters Patent Appeal: