RAM NARAIN Vs. RAM NARAIN

JUDGEMENT

(1.) These are two second appeals (Nos. 1006 and 1007 of 1936) which arise out of the same suit. The appellant in both appeals is the plaintiff in the suit. The suit was for possession of the site of a kotha by demolition of the constructions existing thereon and of an adjoining piece of land by demolition of the walls enclosing it. It was instituted in the following circumstances: The plaintiff, Ram Narain, who is one of the zamindars of the village in which the property in dispute is situated, obtained a decree for arrears of rent against Ram Sahai and others. He put that decree into execution and attached a kotha which ha alleged was owned and possessed by Ram Sahai. Thereupon Ram Narain, son of Than Singh, who is a respondent in both appeals, made an objection under Order 21, Rule 58, Civil P.C. alleging that the kotha really belonged to him and he was in possession thereof. This objection was dismissed by the first Court, but allowed in appeal with the result that the kotha was released from attachment. The plaintiff then filed a suit under Order 21, Rule 63, Civil P.C. on 11 September 1931 (No. 459 of 1931) claiming a declaration that the kotha in question was owned and possessed by Ram Sahai and was consequently liable to sale in execution of the plaintiff's decree against Ram Sahai and others. That suit was, in the first instance, decreed ex parte against the respondent Ram Narain, who alone was contesting it. It appears that on the date on which the ex parte decree was passed the counsel appearing for the plaintiff made a statement that the relief claimed by the plaintiff was confined to the materials of the kotha. That ex parte decree was however set aside upon an application made by the respondent Ram Narain, who then proceeded to file a written statement in which he put forward the case that the kotha in dispute had been built by him 14 or 15 years ago with the permission of several zamindars of the village, and that Ram Sahai, the judgment- debtor of the plaintiff, had no right of any kind in that kotha. There is nothing to show that the respondent Ram Narain was aware of the fact that the relief originally claimed by the plaintiff had been modified by a subsequent statement of the plaintiff's counsel as mentioned above. The suit ended in a, decree based upon a compromise between the parties. The compromise is to be found on the record in the shape of a statement made by the parties counsel. As the question which arises for consideration in these appeals turns principally upon a correct interpretation of this compromise, I consider it necessary to set it out in extenso. Literally translated, it runs as follows: We the parties have arrived at the following settlement, that if defendant 1 (Ram Narain) pays a sum of Rs. 36 to the plaintiff by 1 June 1932, the plaintiff's suit shall be dismissed and the parties shall bear their own costs. And the plaintiff shall set off the said amount against his decree of the Revenue Court. And if defendant 1 fails to pay the said amount within the prescribed period, then the plaintiff's suit shall be deemed to have been decreed with costs.

(2.) A decree followed upon this compromise at agreement between the parties, but it is to be noted that besides incorporating the abovementioned terms, the decree contains an addition to the following effect: Then the, plaintiff's suit shall be deemed to have been decreed with costs, that is the materials of a kutcha built, house bounded as given below...shall be liable to attachment and sale in execution of the decrees No. 135 of 1928 dated 19 December 1928, Ham Narain V/s. Ram Sahai and Ors.

(3.) It is admitted that the respondent Ram Narain curried out his part of the agreement by laying the sum of Rs. 36 to the plaintiff. The legal effect of this decree is the principal point which arises for consideration in these appeals. On 25 January the plaintiff instituted the suit out of which these appeals arise. In this suit the plaintiff's case it that the kotha in question was originally in the occupation of one of his tenants named Parmai, who was the father of Ram Sahai and died about 15 years ago. Upon his death his son Ram Sahai, who was then a minor, became entitled to the kotha, but as ho lived with some of his relations in another house, the kotha remained unoccupied and gradually fell into ruin and finally collapsed about six years ago. Taking advantage of these facts, the respondent Ram Narain who lived with some of his relations in an adjacent house wrongfully took possession of the kotha and connected it with the house in which be lived by opening a door of communication in between. Later on, about four years ago, he encroached upon an adjoining piece of land belonging to the plaintiff and took possession of it by enclosing it with walls all round and turning it into a compound. The plaintiff alleges that Ram Sahai, who alone was entitled to occupy the kotha, abandoned it some time ago and gave up his residence in the village so that the plaintiff as one of the zamindars of the village has the right to re-enter upon the site of the kotha. On these allegations he claims possession of the site of the kotha and of the adjoining piece of land by demolition of all constructions standing thereon.