Decided on September 04,1952



Sarjoo Prosad, J. - (1.) This appeal has been preferred by the defendants first party and is directed against the decision of Mr. Brindaban Bihary Lal, Subordinate Judge of Purnea. It relates to a suit for declaration of title and recovery of possession in respect of certain lands as forming part of the plaintiff's villages and not those of the defendants first party, after relaying the revenue survey line & demarcating the boundary by fixing pillars between the villages of the parties.
(2.) The area in dispute is an area of 40 bighas 19 kathas 14 dhurs out of a total area of 153 bighas 18 kathas 18 dhurs of village Naulakhi, 59 bighas 6 dhurs of Naulakhi Milik and 63 bighas 18 kathas and 18 dhurs of vil lage Gangapur as set out in Schedule I of the plaint. Plaintiff is admittedly the proprietor of tauzi no. 1/1309 of the Purnea Collectorate, common ly known as Pargana Dharampur, to which the plaintiff's villages in question appertain. The defendants first party re the shebaits of a debottar estate, (sic) known as the Paikpara estate, and (sic) which is contiguous to and lies on the order of plaintiff's villages, belongs to this (sic) estate.
(3.) In 1916 the, plaintiff filed a Title suit in the Court of the Subordinate Judge, Purnea, numbered as Title Suit 574 of 1916 against the defendants first party and others with respect to 125 bighas of lands in village Sirsia Kalan, about 100 bighas of lands in village Bishunpur Bhaiyaram, and about 75 bighas of land in village Goalpara. The suit was ultimately compromised between the parties and it was decreed in terms of the compromise petition which was embodied in the decree. One of the terms of the compromise was that the parties, for the purpose of determining the situation of the disputed lands and relaying the boundaries of certain villages ("though not the subject matter of the suit but included in the compromise petition") would abide by the revenue survey line and the demarcation would be done by the appointment of a Commissioner. The construction of the terms of this compromise petition has been a subject of serious contention at the Bar, and I will have to revert to them at an appropriate stage of this judgment. Plaintiff's case is that on different occasions pleader commissioners were appointed and demarcation was made according to the revenue survey line with respect to lands of those villages which were directly in suit in that litigation, but have nothing to do with the lands now in dispute, and the parties got into possession of those lands according to the revenue survey line. In 1921 the defendants first party filed a Title suit (No. 669 of 1021) in the Court of the Subordinate Judge. Bhagal-pur, with respect to certain lands which, they alleged, formed part of their village Basarh and were contiguous to village Jorawarganj of the plaintiff. In this suit these defendants succeeded in getting relaying done on the basis of the revenue survey line in so far as those lands were concerned. Against the decree in favour of the defendants first party, the plaintiff, who was defendant second party to that suit, preferred an appeal to this Court, which was dismissed on 19-6-1928. In this litigation the plaintiff claims that the present appellants based their case on the terms of the corrmro-mise decree in the previous Title suit of 1916. In 1927 came a third round of litigation between the parties. The plaintiff's father filed another Title suit (No. 252 of 1927) wrongly stated in the plaint as Rent suit No. 252/27. This suit was in substance a suit for recovery of arrears of rent from certain tenants, but Use present appellants were also parties to the suit as defendants second party. The suit was dismissed for non-prosecution. In 1929 the plaintiff, the Darbhanga Raj, instituted another Title Suit (No. 29 of 1929) again wrongly described as a rent suit in the plaint. This suit was dismissed on contest. The appellants, who were also defendants in that suit, contended that the suit was premature as demarcation, according to the decree in Title Suit No. 574 off 1916 which was still pending, had not been effected. An appeal against the decree was also dismissed in September, 1932. The plaintiff then filed an application on 19-4-1940, in execution case No. 41 of 1925 arising out of the compromise decree in Title Suit No. 574 of 1916 of the Court of the Subordinate Judge, Purnea, praying to appoint a pleader commissioner to demarcate and relay the revenue survey line but the application was dismissed on 19-4-1941, on contest made by the defendants. As this order amounted to a refusal of performance by the defendants first party of the agreement embodied in the compromise petition, the plaintiff claimed that it gave rise to a cause of action for the institution of the present suit praying for the reliefs aforesaid.;

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