LAWS(PVC)-1948-9-95

MAQBOOL ALAM KHAN Vs. MTKHODAIJA BEGUM

Decided On September 07, 1948
MAQBOOL ALAM KHAN Appellant
V/S
MTKHODAIJA BEGUM Respondents

JUDGEMENT

(1.) Before formulating the question of law involved in this reference, it is necessary to set out the material facts which though complicated are not in dispute. Hamid Ali and Mahmood Ali (sons of Ahmad Ali by his first wife) were recorded as holders of a tenure of 83 acres odd under Khewat No. 4, Touzi No. 3309 of village Babhnaul. In 1926 the Maharaja of Dumraon obtained a decree for rent against the recorded tenants. In execution of the decree, Latafat son of Sheikh Asghar Ali purchased the tenure and obtained delivery of possession over it. Sheikh Asghar Ali was the son of Ahmad Ali through his second wife, Elahi Jan. In 1939 Mt. Najma wife of Sh. Amanat Ali, brother of Sk. Asghar Ali, brought a title suit (No. 127 of 1939) for declaration that the decree obtained by Maharaja Bahadur of Dumraon was merely a money decree, that Latafat obtained only the right and interest of Hamid Ali and Mahmood Ali by the execution sale. Mt. Najma alleged that her share was unaffected, and asked for partition. While this suit was pending, the Maharaja Bahadur brought a rent suit against Latafat and obtained a decree in execution of which Latafat's interest was purchased by Mt. Khodaija. At the instance of Mt. Najma Khodaija was made a party in Title Suit No. 127 of 1939. In this suit Najma ultimately obtained a decree, in execution of which the tenure was partitioned and Najma was given delivery of possession of her share. But in 1944 Mt. Khodaija brought a Title Suit (No. 126 of 1944), for setting aside the decree obtained against her in Title suit No. 127 of 1939. The suit was dismissed in the trial Court but decreed in appeal. A second appeal was preferred to the High Court, but the parties effected a compromise and the Court allowed the appeal in terms thereof. According to this compromise the name of Khodaija was expunged from the category of defendants in Title Suit No. 127 of 1939, though "the decree will stand in other respects." Mt. Khodaija then applied to the Munsif for restitution alleging that on account of the compromise the decree in Title Suit No. 127 of 1939 was reversed so far as she was concerned. The application was contested by Mt. Najma's heirs. But the Munsif held that Section 144 applied and ordered that Mt. Khodaija ought to be restored to possession and to be granted mesne profits.

(2.) Against this order Mt. Najma's heirs have obtained a rule from this Court under Section 115, Civil P.C.

(3.) The question which presents itself on the threshold of this case is whether High Court is competent to revise the order of the Munsif directing that restitution should be made. 3a. For the opposite party learned advocate relied upon the Full Bench case, Jogendra Nath Singh V/s. Hira Sahu , and contended that the order of the Munsif being made under Section 144 an appeal lay to the District Judge and the High Court had no jurisdiction to interfere. On the contrary, learned advocate for the applicant referred to Ram Tahal Singh V/s. Sukeswar Reyain A.I.R.1916 Pat. 400 and maintained that Section 144 was confined to cases in which the decree had been varied or reversed by a superior Court, that the Munsif had no jurisdiction to order restitution in the present case.