ABDUL HAMID Vs. PROKASH CHANDRA NANDI

JUDGEMENT

(1.) This is an appeal by defendant 81 in an execution case arising out of a final decree in a partition suit. The partition suit was instituted in 1928. A preliminary decree-was passed in March 1931 and a final decree in September 1931. The final decree was amended on petition in 1932. The respondents, who were defendants in the partition suit as co-sharers, applied for possession of their share. A Commissioner was directed by the Court to deliver possession to the respondents. He delivered possession on 24 April 1932. At that time it was found that there was within the respondents share some huts belonging to the appellant. Thereupon on 27 April 1932 the respondents applied to the Court for fresh delivery of possession by removal of the appellant's huts. After hearing the objection filed by the appellant the Court by an order dated 22 August, 1932, overruled the appellant's objection and passed an order for delivery of possession to the respondents by removing the huts of the appellant. Against that order the present appeal is made. The first ? ground taken in appeal is that the Court below acted without jurisdiction inasmuch as there is no provision in law for a second delivery of possession. It appears that the delivery of possession made on 24 April 1932 was not complete. Under the final decree the respondents were entitled to get actual possession and as the appellant had some huts standing on a portion of the land they could not get actual possession. In the circumstances, the Court acted within jurisdiction in ordering a fresh delivery of possession by removing the huts of the appellant.

(2.) The next point urged is that the learned Subordinate Judge was wrong to order removal of the appellant's huts. It appears that the appellant was owner of a small share of the taluk which was under partition and within the taluk he had purchased a jote right; the area of his jote was larger than the area of his share of the taluk. In the final partition his own jote was allotted to him as far as possible within his share of the taluk. But as the area was in excess, certain portions of the jote fell within the shares of other co-sharers of the taluk. All the co- sharers had demanded actual possession of their shares and the Court by its final decree directed actual possession to be given.

(3.) The appellant in this case did indeed file a written statement in which he mentions his jote right, but he did not give evidence in Court nor did he take any steps to guard his jote rights. Under the law as it existed to the end of 1928 a jote which was an occupancy holding was not transferable without the consent of the landlords and the landlords were entitled to ignore the transfer and treat the transferee as a mere trespasser. In this case there is nothing to show that the appellant obtained recognition of the transfer of the jote from the other co-sharers of the taluk. In the circumstances the Court of trial did not take into account the jote right in making the final partition. Further, the matter cannot be agitated in the execution stage. The execution Court has no jurisdiction to go behind the decree and alter or revise it. The decree gave the respondents actual possession of the shares. The appellant should have proved his jote right in the trial Court. Having omitted to do so he cannot now agitate the matter in the execution Court. The appeal therefore fails and is dismissed with costs, hearing fee being assessed at two gold mohurs. Lort-Williams, J.