MEGHRAJ SAH Vs. RAJBANSI LAL

JUDGEMENT

(1.) In Title Suit No. 9 of 1950 of the Court of the Munsif at Bettiah, appellant Meghraj Sah was the plaintiff. The respondents of this appeal were the defendants in that suit. Declaration of title and recovery of possession in respect of 4 1/2 kathas out of plot No. 1577 appertaining to Khata No. 777 in village Jaitia were claimed in the suit. It was, however, disposed of on compromise between the parties. One of the terms in that compromise has been translated on behalf of the appellant as follows : "That these defendants neither have nor shall have any connection or concern with 4 1/2 kathas of the disputed land bearing khata No. 777, khesra No. 1577, situate at village Jaitia." The respondents have accepted this translation as correct.

(2.) The appellant levied execution of the compromise decree, and sought delivery of possession in respect of the area of four and a half kathas, referred to above. The respondents filed a petition in which they raised several objections. One of the objections was that the execution petition did not lie. The objection petition was heard by the Additional Munsif of Bettiah who, by his order dated 17-1-1953, rejected it without giving any reasons. The respondents then took the matter in appeal. The appeal was heard by the Additional District Judge of Motihari who, by his order dated 7-5-1953, allowed the appeal and dismissed the appellant's application for execution. Hence, the appellant has filed this appeal in this Court.

(3.) The first point which Mr. N. P. Agarwala has raised on behalf of the appellant is that the Additional District Judge has erred in holding that the compromise decree is not executable on the ground that the term quoted above merely declared the rights of the parties and did not direct any act to be done. He has contended that the suit was filed for declaration of title as well as for recovery of possession, and, therefore, the term quoted above should be construed to mean only a declaration of title in favour of the plaintiff in respect of the disputed four and a half kathas of land but it should have also be held to imply that delivery of possession was to be made in favour of the plaintiff (who is the appellant in this Court at present) as claimed by him in his plaint. If the suit had proceeded to trial and if the Munsif, who held the trial was of the view that the plaintiff was entitled to a decree in his favour, he may well have granted a decree not only for declaration of title but also for recovery of possession. The suit, however, did not proceed to trial. As I have already mentioned, it was compromised. For an interpretation of the terms of the compromise, it is fruitless to look into the reliefs claimed by the plaintiff in the suit. What has to be done is to look into the terms of the compromise itself. If one looks into the terms, which I have quoted it is clear that the parties merely agreed to a declaration of the plaintiff's right, title and interest in the disputed land. They did not say that the defendants would deliver possession of the land to the plaintiff, nor did they say that, failing delivery of possession by the defendants out of court, the plaintiff would be entitled to take delivery of possession through Court. It is perfectly clear, therefore, that the parties did not agree that either of them would do any act in future in fulfilment of the term which I have quoted, nor did they contemplate that, on failure of the party concerned, the act would be done with the assistance of the Court. That being so, I am of opinion that the decree is not executable at all because it merely declares the rights of the parties. If the appellant seeks to get possession of the land with the assistance of the Court, he has no option but to institute a suit for the purpose. I am supported in this view by the decision in the case of Shyama Charan Das v. Satya Prasad Chaudhuri, AIR 1923 Cal 252 (A). The following observation may be quoted from that decision :