Kamlanath Jha and Others vs Mobit Narain Jha

Das, J.—This appeal is directed against the order of the learned Subordinate Judge of Darbhanga, dated the 9ch of April, 1923, by which he allowed the application of the respondent for restitution.

The facts are these. Sometime in 1918 the appellants instituted a suit as against the widows of Sheonath for recovery of certain properties which were held by Sheonath. It appears that Sheonath died sometime in 1917 and thereupon a dispute arose between his widows and the appellants in regard to the succession to the properties of Sheonath. The respondent was in possession of the properties as thicadars by virtue of a lease executed by Sheonath in his favour and it appears that the lease was to run from 1322 to 1328 with option to the respondent to renew it for a further period-of seven years. The appellants recovered a decree both as against the widows and the respondent, but the decree expressly preserved the title of the respondent under the lease. In other words, the decree-directed that the appellants were entitled to recover rent from the respondent and were only entitled to khas possession upon the expiry of the lease. In December, 1920 the appellants executed the decree and obtained symbolical possession as against widows On the 17th September, 1921 they applied for delivery of khas possession as against the respondent on the ground that-the term of the lease had expired. The Court executing the decree came to the conclusion that the term of the lease expired in 1328 and issued the usual writ for delivery. On the 30th of September, 1921 the respondent made an application before the Court executing the decree. It is somewhat difficult to understand the scope of that application, but it appears that the respondent insisted that he was still in possession of the property and was entitled to be maintained in possession. The respondent contended before the Court that, under the lease executed in his favour by Sheonath, he had the right to-renew the lease for a further period of seven years from 1328 and that the decree preserved his rights and the Court executing the decree had no right to deliver khas possession of the property to the appellants.

The first Court refused the application of the respondent who thereupon appealed to this Court, This Court came to the conclusion that the respondent had an option to renew the lease and that the decree did not give the appellants any right whatever to khas possession of the disputed property until the expiry of 1335. The respondent then presented an application which is the subject-matter of this appeal. The application was made under Sections 151 and 144 of the Code and it alleged that

in execution of the said writ of delivery of possession, they (that is to say, the appellants) dispossessed your petitioner (that is to say, the respondent) from the said share and appropriated all the bhadaie aghani and rabbi produce and other profits of all the khas lands Batai and Bhauli tands, etc.,

The respondent contended that the order of the Subordinate Judge having been set aside by the High Court in appeal he was entitled to be restored to possession. The learned Subordinate Judge has acceded to the application made before him and has directed that the respondent should be restored to possession.

It is strongly urged by Mr. Sushil Madhab Mullick on behalf of the appellants that it being the case of the respondent throughout that he was in possession of the disputed properties and has never been dispossessed, it is not open to him to maintain an application for restitution. It is undoubtedly true that, for some reason or other which I have not been able to understand, the respondent did make the case both before the Subordinate Judge and this Court that he was in possession of the disputed properties and was entitled to be maintained in possession. But it is quite impossible to decide this case on a mere technicality. The decision of the learned Subordinate Judge establishes beyond reasonable doubt that the appellants did recover possession of the disputed land from the respondent. It is not disputed that a writ of delivery of possession was issued at the instance of the executing Court, and it is not denied that all that was necessary to be done by the Nazir was in fact done. Mr. Sushil Madhab Mullick contends that the possession was a formal one. For myself, I do not understand the exact meaning of the words

formal delivery of possession.

The appellants did recover possession of the properties from the respondent by virtue of the process of a Civil Court and were entitled by virtue of that order to recover rant from the actual raiyats of the land and to cultivate the khas land within the village. In my opinion, there is not a shadow of doubt that the appellants did recover khas possession of the disputed land. That being so, the question arises whether it was competent to the learned Subordinate Judge to direct that the respondent should be restored to possession. Mr. Sushil Madhab Mullick suggested that the Court, in dealing with an application of this nature is confined to the terms of Section 144 of the Code, and that as the original decree has not been varied or reversed by am appellate Court there was no power in the Subordinate Judge to direct that the respondent should be restored to possession. I am unable to assent to this argument. Under cover of a decree pronounced by a Civil Court the appellants took possession of the properties to which they were not entitled until the year 1335. It is quite true that the original decree has not been reversed, but it is not suggested by Mr. Jayaswal on behalf of the respondent that the decree was in any way erroneous or that it purported to give the appellants the right which they claimed under it during the execution proceedings. The whole point is this. The appellant did get a decree both as against: the widows of Sheonath and as against the respondent. Under cover of that decree they proceeded to turn the respondent out of the land upon which the respondent was entitled to remain until a particular year and the question is, whether the Court is now entitled to say that the respondent should be restored to possession. The power of a Court to order restitution is by no means confined to the terms of Section 144 of the Code. It is the inherent power of a Court to do what is right and proper under the circumstances which had happened. By a wrong interpretation of the decree the Court executing the decree delivered possession of the disputed land to the appellants. This Court decided that the interpretation put on the decree by the executing Court was erroneous. That being so, the Court had complete jurisdiction to restore the respondent to possession. of the properties from which he was dispossessed by an erroneous order of the Executing Court.

The decision of the learned Subordinate Judge is right and must be affirmed. This, appeal must be dismissed with costs.

On the question of mesne profits, Mr. Mullick contends that, having regard to the attitude which has throughout been adopted by the respondent, his clients should only be called upon to pay what they have actually made out of the disputed land, The learned Subordinate Judge has not dealt with this matter and the question really does not arise fox our consideration; but Mr. Jayaswal does not object to the enquiry for mesne profits being confined to the actual profits made by the appellants.

Ross, J.

I agree.