Saberjan Bibi And Ors. vs Kantari Bibi And Ors. on 27 July, 1928

Calcutta High Court
Saberjan Bibi And Ors. vs Kantari Bibi And Ors. on 27 July, 1928
Equivalent citations: AIR 1928 Cal 753 a


1. This appeal arises out of application relating to delivery of possession in execution of a partition decree. The appellants before us are plaintiffs 1 to 3 or their heirs and the respondents-plaintiffs 4 to 6. The defendants in the suit have no interest in the proceedings. But in a partition suit every plaintiff may be in the position of a defendant. Therefore the question of the parties being ranged on the sama side in the suit is of no moment in this particular case. The controversy between the contending parties to this appeal was with regard to delivery of possession in respect of four dags of the properties in suit, that is to say dags 134 and 135 on one side and dags 164 and 165 on the other. The dispute was that the respondents, the opposite parties before the trial Court, claimed that the final decree had been adjusted between the parties in this way, that the petitioners the appellants before us would get dags 164 and 165, while the opposite parties would get the other two dags. This was, however, in contravention of the final decree as made. The petitioners objected that there was no such adjustment of the decree and this objection arose when the commissioner went to deliver possession in terms of the final decree for partition. The Subordinate Judge allowed the petitioners’ objection and made an order that possession should be delivered as in the final decree for partition. The opposite party appealed before the District Judge and the District Judge was of opinion that this matter did not arise under Section 47, Civil P.C., and the order of the Subordinate Judge was without jurisdiction as the decree had been finally satisfied.

2. Obviously the District Judge was in error. The authority that he cited in support of his opinion has no bearing on the present case. Here possession was asked to be delivered according to the final decree and such delivery of possession must be held to be in execution of the decree, and when the dispute arose with regard to such delivery of possession it was a dispute falling under Section 47, Civil P.C., The District Judge was also in error in holding that the decree had been fully satisfied, because it was not a fact that possession was fully delivered in accordance with the decree as the petitioners the appellants before us objected to the delivery of possession in terms of the alleged settlement between the parties.

3. The judgment and order of the District Judge are therefore sat aside and the case sent back to the lower appellate Court for decision on the merits as to whether there was really an adjustment or not.

4. The costs will abide the final result. We assess the hearing fee at three gold mohurs.

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