DOYAL CHANDRA MANDAL Vs. KAURI (CHARAN) NASKAR

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order by which his application for execution has been dismissed, on the ground that the decree is vague and indefinite and is incapable of execution. The decree was made on the 26th June 1907 in a suit for recovery of possession of immoveable property which had been dismissed by the Court of first instance but was decreed on appeal. The decree is in these terms: "The claim of the plaintiff is decreed; let it be declared that the land within the boundaries mentioned below and measuring 145 bighas is the mourasi mokarari leasehold land of the plaintiff-appellant; let the plaintiff-appellant obtain possession of the land mentioned and let it be declared that the southern boundary of the decreed land is the land of Debnarain Naskar." In a schedule to the decree the boundaries were described in these terms: Southern boundary: The leasehold land of Dharmadas Mandal recently purchased by Haribrahma. Eastern boundary: The western bank of the silted-up channel of Chowsa river. Southern boundary; The land of Debnarain Naskar. Western boundary: The eastern bank of Horailkhal." The land, it will be observed, is bounded on the east and the west by two water-courses and On the north and south by the leasehold lands of Dharamadas Mandal and Deb Narran Naskir respectively. The decree-holder applied for delivery of possession of the land decreed to him by way of execution. A Commissioner was appointed to hold a local investigation and to compare the map with the locality. He determined what appeared to him to be the site of the land decreed to the plaintiff. The execution Court, however, did not agree with the Commissioner in his demarcation of some of the boundaries and directed possession to be delivered to the plaintiff in respect of a portion only of the land pointed out by the Commissioner. Both parties were dissatisfied with this decision and appealed to the District Judge, who has held that the decree is indefinite and incapable of execution. In this view, he has dismissed the appeal of the decree-holder, allowed the appeal of the judgment-debtors and disallowed the application for execution in its entirety. In our opinion the order of the District Judge cannot possibly be supported.

(2.) Section 207 of the Code of 1882, which was in force when the decree now under execution was made, provided as follows: "When the subject-matter of the suit is immoveable property, and such property is identified by boundaries or by numbers in a record of Settlement or Survey, the decree shall specify such boundaries or numbers." The rule embodied in Section 207 has been reproduced in a slightly modified form in Order XX, Rule 9, of the Code of 1908, in the following terms: Where the subject-matter of the suit is immoveable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of Settlement or Survey, the decree shall specify such boundaries or numbers." In the case before us, the property can be identified by boundaries and the decree does specify the boundaries. But it has been argued on behalf of the judgment-debtors that the decree as drawn up is indefinite, inasmuch, as there was no local investigation in the course of the suit. It has been suggested that the proper procedure was to appoint a Commissioner in the suit to have the locality surveyed and a copy of the map thus prepared should have been annexed to the decree. If this course had been pursued it may be conceded that the difficulty which has arisen in execution proceedings, might possibly have been avoided, although even in the case of decrees to which maps are annexed difficulties are known to have arisen in the course of execution proceedings in locating on the spot the boundaries of the land as indicated in the map. On behalf of the judgment-debtors reliance has further been placed upon the cases of Dwarkanath Roy v. Jannobee Chowdhrain 19 W.R. 81 and Barbaree Sayal v. Fatu Dhalee 23 W.R. 285 in support of the proposition that a decree of this character must be deemed indefinite and incapable of execution. There is, in our opinion, no force in this contention and the cases mentioned are clearly distinguishable. In the case of Dwarkanath Roy v. Jannobee Chowdhrani 19 W.R. 81 the decree was for a portion only of the land claimed in the suit. As such portion was not specified by boundaries, it was impossible to determine from the decree which portion had been awarded to the plaintiff, and the Court very properly refused execution. A similar view was taken in the case of Barbaree Sayal v. Fatu Dhalee 23 W.R. 285 where also the decree was for possession of a portion only of the land in suit and it was held for a similar reason that the decree was incapable of execution. The same view was subsequently taken in the cases of Mahomed Ismail v. Lalla Dhundhur Kishore 25 W.R. 39 and Ajoodhia Lall v. Gumani Loll 2 C.L.R. 134. The, case before us is, however, of an entirely different description. Here the land decreed is comprised within boundaries specified in the schedule to the decree; where these boundaries lie, is a question of fact to be determined upon evidence. As regards the eastern and western boundaries which are two water-courses, there is no real difficulty. The difficulty arises in connection with the southern boundary which is described as the land of Debnarain Naskar. The Court of first instance found it impossible to determine the northern boundary of the land of Debnarain Naskar which is the southern boundary of the land decreed to the plaintiff. It has been contended, however, on behalf of the respondent Sures Chandra Mukerjee that he has no interest in these proceedings, because his land lies to the south of Debnarain Naskar. We are unable to attach any weight to this contention. The southern boundary of the land decreed to the plaintiff is the northern boundary of the land of Debnarain Naskar, which means the land comprised in the lease of Debnarain Naskar and not the land in occupation of Debnarain Naskar; and it has been suggested on behalf of the appellant that the respondent Sures Chandra Mukerjee is in occupation; of land which is really comprised in the tenancy of Debnarain Naskar. It is impossible for us to pronounce any opinion as to the accuracy of these allegations. But the Court of first instance must determine the northern boundary of the lands of Debnarain Naskar, for the decree-holder is entitled to obtain delivery of land up to that limit.

(3.) The result is that this appeal is allowed, the order of the District Judge set aside and the case remanded to the Court of first instance for re-consideration. There will be a fresh local investigation in the presence of all the parties interested and the boundaries as specified in the decree will be determined on evidence to be adduced by the parties.