TATA IRON AND STEEL CO LTD Vs. AMRIT LAL BISWAS

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for declaration of title and recovery of possession over a piece of land measuring 21 feet X 12 feet in the town of Jamshedpur, fully described in the schedule of the plaint. The plaintiff alleged that the defendant had encroached upon the land measuring 12 feet X 10 feet and hence a suit had been filed sometime in 1951, being Title suit No. 70 of 1951. That suit was decreed and, thereafter, in 1956 the defendant voluntarily abandoned the land but soon thereafter, in 1957, he took possession of the entire suit land. The main defence in this case was that the defendant had taken possession of the suit land in 19=17 and constructed the house Standing on the suit land between the years 19-17 and 1949 and since then he was adversely coming on in possession of the suit land and, therefore, the suit was barred by limitation. The trial court decreed the suit but on appeal by the defendant, the plaintiff's suit has been dismissed. Hence the second appeal by the plaintiff.

(2.) Mr. Advocate-General, appearing for the appellant, contended that the judgment of the court of appeal below is not in accordance with law. According to him, the peon's report in the execution case (Exhibit 4) which was considered by the trial court and is a material piece of evidence has not been considered by the lower appellate court and, therefore, he urged that the case requires fresh consideration. It is difficult for me to accept this contention. The lower appellate court has fully considered the matter as to whether the defendant abandoned the suit land of 1951 in 1956 and thereafter he took possession of the suit land in 1957. In that connection, the lower appellate court considered the order sheet of the execution case filed by the plaintiff On April 18, 1958 the plaintiff decree-holder of the suit of 1951 had filed an application before the executing court for effecting delivery of possession by breaking open the lock of the house and the same prayer was again made by a subsequent petition on November 27, 1958. The peon's report (Exhibit 4) which is dated January. 30, 1961 shows that the defendant told him that he had vacated the suit premises but in view of the definite assertion of the plaintiff that the defendant had given up possession of the suit land of the suit of 1951 in 1956 and in 1957 the defendant encroached upon the land and since then he had been continuing in possession of the land. Exhibit 4 could have no importance in this case. Moreover, the peon has not been examined and, therefore his statement in exhibit 4 could not be admissible in evidence. Though the court of appeal below has not mentioned Exhibit 4 in its judgment but there is no doubt in my mind that it has considered the case of the plaintiff and also the entire evidence in that regard. The plaintiff has nowhere come with the story that after January 30, 1961 the defendant came upon the land. The Court of appeal below has fully considered the evidence as to whether the defendant has been coming on in possession of the suit land from 1957 and on a consideration of the evidence on the record it has come to the conclusion that the case set up by the plaintiff is false and accepted the case of the defendant that he has been coming on in adverse possession of the suit land from 1947 and the suit was, therefore, barred by the law of limitation. There is, thus, no substance in the contention of learned counsel for the appellant that the judgment of the court of appeal below is not in accordance with law.

(3.) Learned Counsel for the appellant next contended that the suit may be treated as an application for execution under Section 47 of the Code of Civil Procedure since the execution proceedings in the previous case was dismissed on February, 27, 1961 and the present suit was filed on December 23, 1963 i. e. within three years of the institution of the suit. In support of his contention, learned counsel referred to the decision of the Supreme Court in Merla Ramanna v. Nallaparaju, AIR 1956, SC 87 and in M. P. Shreevastava v. Mrs. Veena, AIR 1967 SC 1193 and a decision of the Madras High Court in Lakshumanan Chetty v. Muthiah Chetty, AIR 1916 Mad 429. There is no dispute in this case that all questions arising between the parties to the suit relating to execution, discharge or satisfaction of the decree shall be determined by the executing court and not by a separate suit. The court is also empowered under Section 47 of the Code of Civil Procedure to treat the proceeding under this section as a suit or a suit as a proceeding subject to any objection as to limitation or jurisdiction. In Ramanna's case properties in excess as allowed by the decree were sold. A suit was filed by one of the judgment-debtors to the effect that excess properties could not be sold and for recovery of possession of the same. It was held in that case that the question could be agitated only by an application under Section 47 of the Code of Civil Procedure and not in a separate suit. The Supreme Court granted relief to the plaintiff by treating the suit by the judgment-debtor as an application under Section 47. Learned counsel relied on the operative portion of the judgment which states that "treating the plaint as an execution application we direct that the properties mentioned in Schedule A to the plaint be partitioned and the respondents put in possession of 126 acres... In proceedings to be taken in the execution of the orders". Therefore, learned counsel contended that the suit itself could be treated as an application for execution. The expression "treating the plain 1 as an execution application" means treating the plaint as an application under Section 47 of the Code of Civil Procedure in the execution proceedings. This case is, therefore, of no assistance to the appellant.