Girwar Prasad Narayan Singh vs Rameswar Lal Bhagat

Kulwant Sahay, J.—Remeshwar Lal Bhagat, the respondent in the present appeal, instituted a suit against the appellant on 28th November 1913 for declaration of title and recovery of possession over mauzas Gurturi original with dependencies (dakhili) and Kolhua original with dependencies. In the plaint the dependencies were not specified but the boundaries of the mauzas claimed by the plaintiff were set out in the plaint. "We are not concerned in this appeal with mouza Kolhua, but we are concerned only with mauza Gurturi. The suit was dismissed by the Subordinate Judge on 24th August 1915, but on appeal to the High Court the decree of the Subordinate Judge was set aside and the plaintiff''s suit was decreed on 14th August 1917, and this decree was affirmed on appeal by the Privy Council on 1st November 1922.

The decree of the High Court was executed first on 27th November 1917 and a writ for delivery of possession was issued and served but ultimately the execution case was dismissed on 5th May 1921 and it was declared that the delivery of possession was irregular and void. Several other applications for execution were made but they proved in fructuous. The present, application was made on 27th March 1925 and possession was sought to be delivered over the entire mauza Gurturi original with dependencies and the boundaries thereof were set out in the application. The application was for delivery of possession over mauza Kolhua also, but as I have said, We are not concerned in the present appeal with that mauza. An objection was taken by the judgment-debtor to the execution of the decree. It appeared that in the decree of the High Court the property in respect whereof the title of the plaintiff was declared over which he was awarded possession was not specified. The decree merely recited that the plaintiff shall get a decree for possession with mesne profits. The learned Subordinate Judge by his order dated 14th December 1925 held that a writ should be issued directing the delivery of possession of the properties as described in the plaint. The writ was accordingly issued giving the boundaries of mauza Gurturi as stated in the plaint. The peon who was entrusted with the delivery of possession reported that he had delivered possession over mauza Gurturi asli mai" dakhili within the boundaries given in the writ for delivery of possession, and he further stated in his report that he delivered possession to the decree-holder over Kumradih, a tola of mauza Gurturi, which tola he found included within the boundaries as given in the writ. The judgment-debtor raised objections and alleged that delivery of possession had not, as a matter of fact, been effected, and further that Kumradih was not a tola a dakhili village of Gurturi and that possession over Kumradih could not be delivered in execution of the decree. The learned Subordinate Judge has held by his order dated 7th September 1926 that possession was, as a matter of fact, delivered to the decree-holder of the decretal village Gurturi together with the tola Kumradih and further that Kumradih was a tola of Gurturi and not an independent village. The judgment-debtor has preferred the present appeal against this order of the Subordinate Judge.

The only contention raised on behalf of the judgment-debtor in this appeal lis as to whether mauza Kumradih was a dakhili village of mauza Gurturi, and whether the decree awarding passession can be construed to include mauza Kumradih amongst the properties decreed to the plaintiff The earliest document on the record bearing on the point is - the revenue survey map (Ex. D) of the year 1864-65. From this map it appears that Kumradih was treated as dakhili of Gurturi. In the note attached to the map it is stated that mauza Gurturi was an asli village and that mauza Kumradih was a dakhili village. The area of mauza Gurturi was 426 acres and that of Kumradih 165 acres. The area under cultivation with rice in mauza Gurturi was 115 acres while as regards Kumradih the entry was that there was no cultivation of rice therein. The learned Subordinate Judge has painted out that in the map no T-junction stations have been shown anywhere between Gurturi and Kumradih although Gurturi and Kumradih had each been given a separate number, and he was of opinion that the map showed that Kumradih was surveyed and mapped as a part of Gurturi. It is contended on behalf of the appellant that this map is a combined map of several villages and that the mere mention of the fact that Kumradih was a dakhili village does not necessarily go to show that it was a dakhili village of Gurturi and not of any other mauza. There is no suggestion on the part of the appellant anywhere in this record to show what other particular mauza there was of which Kumradih was the dakhili village. (The judgment then discussed other evidence and proceeded.) In the cadastral survey map of 1916-17 Kumradih was surveyed separately from Gurturi as it had a separate revenue survey number, but the village notes Exs. E, and F, relating to Gurturi No. 471 and Kumradih No. 472 go to show that Kumradih was a tola of Gurturi. It also appears from the village note of Gurturi that the lands of Kumradih were part of the raiyati holdings of the tenants of village Gurturi and that the rents paid by the tenants in respect of the lands in Gurturi included the rents for the lands held by them in Kumradih. The cadastral survey map, therefore, does not help the appellants inasmuch as during the same survey proceedings the village notes were prepared which go to show that Kumradih was a tola of Gurturi.

On a consideration, therefore, of the documentary evidence in the case it is clear that Kumradih was a dakhili village of Gurturi and was not an independent village. In the boundaries of mauza Gurturi asli mai dakhili as given in the plaint the eastern boundary was stated as follows :

Mauza Patila, Birtia Daudar and Mauza Konwai

On reference to the revenue- survey map "it appears that Kumradih is included within this boundary. Patila, Dandar and Konwai are all to the east and north-east of Kumradih. It is clear therefore, that although in the plaint Kumradih was not specifically named yet the boundaries given of the property in dispute of which possession was claimed included Kumradih. It is contended, however, on behalf of the appellant that the mention of the villages lying to the east of Kumradih in the plaint as the eastern boundary was a false description and that the real description was the name of the village Gurturi which was well-known and ascertained property and that, therefore, the mere description of the boundaries would not include Kumradih. It is true that if an ascertained property is claimed and the boundaries given are not the correct boundaries of that property then the area included within the four boundaries given would not pass. Here, however, mauza Gurturi asli mai dakhili as claimed by the plaintiff was not a property which was ascertained and well known. No objection appears to have been ever taken on behalf of the appellant that even if the plaintiff was entitled to mauza Gurturi the area claimed by him was more than the area of mauza Gurturi asli mai dakhili and that the description as regards the boundaries was a false description.

Reference has, however, been made by the appellant to a writ for delivery of possession dated 1st December 1917 issued in one of the previous execution proceedings relating to the execution of the decree. In this writ the schedule of the property of which possession was to be delivered contains mauza Gurturi original with dependencies and the boundaries thereof are given in it. The eastern boundary of mauza Gurturi of which possession was to be delivered is shown in this document as Kumradih and Patila The receipt of delivery of possession dated 8th December 1917 in which the decree-holder wrote "I got full possession of mauza Gurturi" and the report of the peon dated 9th December 1917 relate to this writ for delivery of possession. It is contended that this writ shows that the decree-holder, wanted delivery of possession of mauza Gurturi the eastern boundary whereof was Kumradih, in other words that Kumradih was treated as lying outside Gurturi. It is pointed out by the learned advocate for the respondent that this writ does not give a correct description of the property as contained in the application for execution filed by the decree-holder. He explains that at the time that this application for execution was made in the year 1917 the cadastral survey map had already been prepared and in that map Kumradih was surveyed separately and in the application for execution the properties over which possession was sought to be delivered were given in three items viz., (1) Gurturi, (2) Kumradih and (3) Kolhua. Instead of the boundaries of the plaint the two cadastral survey villages falling within those boundaries namely, Gurturi and Kumradih were given separately with their cadastral survey boundaries, but in the writ for delivery of possession which should have followed the description in the application, Kumradih was omitted either by mistake in the writ (which otherwise was carelessly drawn, being actually unsigned), or because the decree showed Gurturi and did not specifically mention Kumradih and it was not observed by the office of the Court that if (2) Kumradih was left out the boundaries of (1) Gurturi alone would not be the boundaries of the plaint. Possession was delivered to the decree-holder in accordance with this writ of December 1917 but the execution proceedings were held to be illegal and this property of possession was held to be void, as the writ was not signed by the Court. In the absence of the application for execution filed in December 1917 in connexion with which this writ was issued it cannot be held that the plaintiff decree-holder treated the property in respect whereof he had obtained the decree as mauza Gurturi No. 471 that is excluding Kumradih. On the contrary it would appear from Exs. E and F that in fact he obtained delivery of possession of Kumradih also, notwithstanding the mistake in the writ.

Reference is next made to the report of the civil Court moharrir, dated 8th September 1923, in an earlier execution proceeding from which it appears that the moharrir reported to the Subordinate Judge that in the petition for execution of the decree filed by the plaintiff decree-holder he had applied for delivery of possession of mauza Gurturi and Kolhua with their "tola Deodih alias Kumradih" and it is argued that at that time the decree-holder treated Kumradih as another name for Deodih and not as a separate village. It is true that the decree-holder not having named Kumradih in the plaint tried to make out that Kumradih was only another name for Deodih which was shown in Register D as a dakhili village of Gurturi, but it is evident that the plaintiff has throughout been claiming mauza Kumradih or the area known as Kumradih as appurtenant to Gurturi.

No oral evidence on the point has been referred to by the appellant.

On a consideration of the entire evidence, therefore, I am clearly of opinion that Kumradih was included in Gurturi asli mai dakhili as described in the plaint and that the decree made by the High Court in favour of the respondent therefore included Kumradih. The decision of the learned Subordinate Judge, therefore, appears to be correct. This appeal is dismissed with costs.

Macpherson, J.

I agree.