MUNDER LAL SASHU Vs. JIWAN RAM MARWARI

JUDGEMENT

(1.) This is an appeal by the judgment-debtors against an order of the Subordinate Judge, Godda, dated 7 February 1942, rejecting their petition of objection under Section 47, Civil Procedure Code. The execution was taken out by the decree- holder in pursuance of a decree obtained by him in the High Court, which decreed possession of the plaintiff over the entire 16 annas of kamat lands in village Simaria Ghat, Tauzi No. 610: That suit had arisen out of certain transactions between the two parties which led to a dispute with regard to the kamat lands of village Simaria Ghat Tauzi No. 610 and village Sonarchak Tauzi No. 611 which were ultimately sold to the decree-holder by a sale deed dated 27 June 1933. Amongst the reliefs sought in the plaint of the suit, it was prayed. that a decree for possession be passed in favour of the plaintiff against the defendant first party with respect to property mentioned in Schedule 1 appended hereto on adjudication of plaintiff's title to the same by virtue of his purchase. There was also n prayer: that the defendant first party be evicted from the property mentioned in Schedule 1 and the plaintiff be given khas possession thereof. In Schedule 1 the property was described thus: Entire sixteen annas of kamat lands 45 bighas 8 ch. 3 dhurs in mauza Simaria Ghat T. No. 610 covered by jamabandi No. 113 with all rights and interest therein, being plots Nos. 38, 39, 40, 58, 91, 93, 103, 110, 116, 168, 169, 177, 191,198, 200, 88, 166 and 117.

(2.) It is not necessary to give the details of the lands of the other village Sonarchak, because that is not the subject of dispute before us. But it appears that at the time of taking out execution, eight other plots namely, plots Nos. 109, 186, 82, 83, 34, 87, 82 and 101 were also included by the decree-holder. These plots are obviously not included in the description given in Schedule 1 which I have just quoted; and the question that has been agitated before us is whether the description given in the plaint showing fewer plot numbers will prevail, or whether in execution the decree-holder can proceed to take delivery of possession according to the description given by him in the execution proceedings, which description shows more plots of land than those described in the plaint as appertaining to village Simaria Ghat lauzi No. 610.

(3.) The Court below has pointed out that the decree-holder's case was that the suit was for recovery of possession over the entire 16 annas kamat lands of village Simaria Ghat, which comprises 45 bighas 8 kathas 8 dhurs, and that he took out execution for that area, and it was urged in the Court below that the description of the lands by plot numbers was merely secondary to the claim of the decree-holder for the 16 annas kamat lands in respect of which the decree in execution was granted. The Court below has pointed out that the khatian relating to these kamat lands showed that 16 annas of the kamat lands in the village comprised of 45 bighas 8 kathas 8 dhurs. It appears that the sale deed on which the suit was based did not describe the kamat lands by indicating therein the plot numbers and the schedule to the plaint proceeded to describe as "16 annas pokhta zamindari property in village Simaria Ghat together with kamat....