MUSTT. KITABJAN BIBI Vs. RAMLAL DURGADUTTA

JUDGEMENT

(1.) CAN be Executing Court go behind the decree in a case where the decretal land cannot be located in terms of the decree and order delivery of possession of a different land whose three boundaries coincide with the three boundaries of the land decreed in favour of the plaintiff-opp?

(2.) THE question has to be determined in this revision. What happened is that the plaintiff-Opp. instituted a suit being Title Suit No. 20/64 in the Court of Assistant District Judge, Nowgong. Subsequently the suit was transferred to the Court of the District judge where it was re-numbered as Title Suit No. 5/67. The suit was for declaration of title and recovery of possession of 3 kathas of land out of 1B, 18L. covered by Dag No. 958 under Patta No, 775 of Nowgong town and the suit was against late Keramat Ali predecessor in interest of the petitioners. It was decreed on 9-6-70 and the decree was put into execution in Title Execution Case No. 1/70 in the Court of the Assistant District Judge, Nowgong. The writ of delivery of possession to 3 K. of land under Dag No. 958 was issued to be executed with the help of Amin and Mandal. The Amin on spot verification found that the judgment-debtors were not in possession of the land covered by Dag No. 958 which was converted to Dag No. 1255 in the current settlement. It was found that the judgment-debtors-petitioners were in possession of the land under Dag No. 957 pertaining to the aforesaid patta. Thereafter the decree-holder O. P. moved the Court for delivery of possession of the land of Dag No.957 according to the boundaries. Learned Asstt. District judge issued a commission for determining the location of the decretal land. The Commissioner after local investigation submitted his report and it was accepted by the Court on 7-5-81. However, the learned Court adjourned the case for hearing objection to execution of the decree. On 23-9-81 J. D. No. 3 filed a petition under Section 47 C. P. C. disputing maintainability of the execution proceeding due to non-ascertainment of the location of the decretal land. This objection petition was heard by the learned Court and decided in favour of the D. H. O. P. and against the J. D. Petitioners vide order dated 24-5-82 and directed delivery of possession of the land of Dag No. 957 to the D. H.

(3.) IN SSmt. Samabati Riang v. Shri Dinabandhu Das. AIR 1964 Tripura 36, it was held that in a suit for declaration of title and delivery of possession of land, it is the duty of the plaintiff to describe the land giving plot numbers or specific boundaries so that the land can be properly identified and that it is unnecessary for the defendant to identify the land claimed by the plaintiff. It was also held that a decree given to the plaintiff without knowing what exactly was the land which he is claiming is unworkable in execution as it will not be possible for the Court Officer who goes to execute the decree to identify the land from the description. This is no doubt a good proposition and is acceptable. The position in the present case stands like this: The plaintiff brought the suit for land under Dag No. 958 with specific boundaries. In execution the Amin found that the lands is not ascertainable in the field. The learned executing Court then issued Commission and the Commissioner did not go to dog number 958, but allegedly went to present dog No. 1259 and found a land having north and west boundaries being identical with the corresponding two boundaries of the decretal land and having different boundaries, on the east and south and located this as the decretal land. It hasto be said also here that the Commissioner himself is not firm in his identification of the land in view of his report discussed above. It was not a case of subsequent change of dag number. But it appears to be a case of shifting to another land bearing another dag number. The two lands under Dag Nos. 958 and 957 are apart from each other having separate locations. Moreover, mere accidental coincidence of 2 or 3 boundaries of a different land cannot bring it under the decree obtained by the D. H. A decree has a sanctity of its own and there cannot be any fishing in finding the decretal land at the execution stage. The terms of the decree cannot be disturbed by a Commissioner so as affect the right of the J. D. with regard to a different land. It appears that he D. H. himself was not aware of the location of his disputed land and gave wrong description regarding the suit land. Unless the decree has been amended, the executing Court cannot give any direction whose consequence is to disturb the identity of the decretal land. True the executing Court cannot give any direction whose consequence is to disturb the identity of the decretal land. True the executing Court is not an automaton and it can exercise its power to properly construe the decree in order to find out the true import and effect of the same, so that it can proceed to execute the decree in its true and correct perspective giving full effect to the same and for that purpose the Court can look into the pleadings and judgment. But this does not imply that he will travel outside those materials and give effect to the decree.