Jahuri Lal and others vs Khandhai Lal and others

Wort, J.—This is an appeal from the judgment of the Subordinate Judge of Patna in an action in which part of a building was in dispute. I use the expression "part of a building," because from the map in the case one would suppose that the portion in dispute was a part of holding No. 187, although the appearance of the plan itself would by no means be conclusive of the matter. Indeed having regard to the course of the litigation in this case and the former litigation regarding the property the map would by no means, as I have already said, dispose of the question in dispute.

The defendants were the appellants and they admittedly were in possession of those blocks marked red on the plan and had been in possession for some considerable time. That possession however has been held permissive in the sense that the plaintiffs had allowed the defendants to remain in possession of this part of the building. The matter arises in this way: The defendants, who arc the appellants before this Court, were the plaintiffs in a partition action regarding the family property which included holding No. 187 and holding No. 138. The partition proceedings were compromised, and it is on the basis of that compromise that the plaintiffs now claim that part of the property in dispute. The plaintiffs and defendants appear to be cousins and the plaintiff''s admittedly at the time of the partition suit were in possession of what is now known as holding No. 138. In their plaint in that action item No. 5 of Sch. B, the plaintiffs described a part of the joint family property (that is, holding No. 87 which is now the defendants'' portion) in these terms:

One storied kucha pucca residential homo, situted at Mohalla Afzalpur and bounded.

and then the boundaries on the cast and the west and the north are given, the north boundary being a lane and so it is shown by the map. Now if the plaintiffs are right in this action, that is to say, they are right in saying that holding No. 187 includes this part of the building in dispute, the proper boundary in the action to be giver, so far as the south was concerned, would be Lallbagh Lane, but instead of that the plaintiffs described the south boundary in their plaint as house No. 138 in circle No. 32. Now that could be only described as the correct boundary if house No. 133 extended towards the east in the sense that the part of the building now in dispute was a part of house or holding No. 138. Now it is true that when the present plaintiffs in that partition action filed their written statement, they disputed these boundaries. Then came the compromise. The compromise took the usual form a petition was set out and various schedules given of the properties and under item No. 5, Sch. 2, is given the holding known as No. 187. The schedule is made up of several columns, the first column being the schedule number, the second column being the number mentioned "in the plaint along with the schedule of the plaint," to use the words of the heading of that column. Then when we come to item No. 13 relating to holding No. 87, we simply had the mention "No. 5, Schedule No. 2 B" No. 5 refers to the item in the schedule in the plaint and 2 B refers to the description of the schedule to the plaint. Now by a reference back from this schedule of the compromise, to the schedule of the plaint, the schedule of the plaint would seem to be incorporated. It is on this basis that Mr. Manuk''s argument proceeds. As the schedule of the plaint was incorporated in this manner it was a clear admission by the defendant that the boundaries given in their plaint by the plaintiffs were the correct boundaries, and if those were the correct boundaries, then admittedly the property given to the present defendants in the partition suit was holding No. 138 amongst other properties and this holding No. 138 would include that part of the building now in dispute in this action. The only fact that could possibly affect that construction is that the description in the last column of the schedule to the decree in which the property No. 187 is described as one storied kucha pucca house situated in so and so. But that does not help, because it is clear from the case that this part of the building which is now in dispute, although it may now have a second storey was a single storied building at the time of the partition action.

The other argument advanced against the contention of Mr. Manuk is that in the schedule to the plaint descriptions are somewhat different in the sense that, although in the schedule to the plaint holding No. 138 is described as a house in Mahalla Afzalpur and then in parenthesis "two kitas." This description of "two kitas" in the plaint is left out of the description in the schedule to the compromise decree. I am not at all convinced with regard to this matter, because it is by no means clear as to what the kitas referred to. Had there been any latent ambiguity about this matter the parties would have been entitled to call evidence. But if anything this omission of the kitas was a patent ambiguity and by the Common law and under the Evidence Act evidence with regard to it would be inadmissible. I should not feel at all satisfied in coming to the conclusion that the omission of the expression "two kitas" from the schedule to the compromise decree disposes of the matter.

There is another important fact which I have not so far mentioned, and that is that not only was there this schedule to the decree which referred back to the schedule of the plaint, but when the plaint came to be made out either the parties or the office of the Court included the schedule of the plaint as a part of the decree; and would be strange, if the arguments of the respondent can bear any weight at the moment they made no protest against this but allowed the matter to stand. Whether the inclusion of this schedule of the plaint in the decree itself was an accident or not does not appear; and in my judgment the reference from the schedule which at first appeared as a part of the consent decree to the schedule of the plaint would be sufficient to conclude the matter in favour of the appellants. But the learned Judges in the Courts below have adopted a course regarding which some conclusion must be arrived at by this Court. They have admitted evidence which according to the decision of the Courts below was evidence to enable them to construe the consent decree which was final as between the parties. That was a course which they were not entitled to follow. Only under one set of circumstances could the parties be allowed to give evidence as to what the decree meant or to give evidence to assist the Court in coming to their conclusion; and that would be where there was a latent ambiguity. There was no latent ambiguity. Ambiguity, if any, was on the face of the document itself. An example of latent ambiguity it is unnecessary to state, but it would be where a property was included under a wrong name or where there were more properties than one of the same name or something of that kind which could not be disclosed to a person reading the document without the assistance of evidence to explain the actual facts. In those circumstances the evidence would be admissible under the Evidence Act. But where a Court has any difficulty as to what the decree means either by reason of an ambiguous sentence or an apparent contradiction arising out of that, no evidence is admissible. I must state in this connection that it has been held not only by this Court but by the Privy Council that a consent decree is still a contract which must be construed as such although it has the sanctity of a judgment. If the evidence which the the Courts below have considered was inadmissible as I have held it was, then the conclusion at which I first arrived seems to me to dispose of the matter.

I will restate those conclusions in order to make the matter perfectly clear.

The schedule to the consent decree refers back to that of the plaint. It is not seriously argued that according to the description in the plaint schedule the property was admittedly given to the present defendants-appellants. The omission of the expression "two kitas" from the schedule to the decree docs not finally dispose of the matter. The third matter which is a statement of fact is that the schedule of the plaint, as it existed at the time the action was brought, was finally incorporated in the decree itself. It is difficult therefore to contend that the description given in the plaint is not to be read into the compromise decree. In certain events, that is to say, if both parties had been acting under some mistake, the present respondents might have had rectification of the decree. But it is not suggested that there was a mistake nor that any such cause of action accrued to the respondents.

In these circumstances it seems to me that the appeal succeeds and must be allowed with costs throughout and the plaintiffs'' suit dismissed with costs.