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PETITIONER: UMA SHANKER (DEAD) & ORS.

       Vs.

RESPONDENT: SARABJEET (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT:       23/01/1996

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) PUNCHHI, M.M.

CITATION:  1996 AIR 1005            1996 SCC  (2) 371  JT 1996 (1)   476        1996 SCALE  (1)479

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs.Sujata V. Manohar, J.      The respondent,  Sarabjeet,  was  originally  the  sub- tenant of  one Damri  Lal, the  predecessor in  title of the present appellants,  in respect of lands situated within the limits of  the Municipal  Board,  Bhadohi,  Tehsil  Gyanpur, which are the subject matter of this appeal. These lands, at all material  times, were  governed by the provisions of the Banaras State Tenancy Act, 1949.      Damri Lal  had brought  a suit being Suit No.46 of 1955 against the  respondent for ejectment of the respondent from the suit  lands under  Section  154  of  the  Banaras  State Tenancy Act,  1949,  in  the  Court  of  the  Sub-Divisional Officer, Bhadohi.  On 1.10.1955  the parties compromised the suit  and   a  consent  decree  was  accordingly  passed  on 4.11.1955. The  compromise which  is dated  1.10.1955 and is signed by  both the parties including the respondent, states that the  respondent relinquishes  his rights in the land in favour of  Damri Lal.  The respondent  who is  the defendant there, has stated: "I have no concern in the land in dispute and the  crops standing  thereon from today’s date. A decree in  favour   of  the  plaintiff  against  the  defendant  be passed........." Accordingly a consent decree was passed.      According to  the  appellants,  under  this  compromise decree possession  of the  said lands was surrendered by the respondent to  Damri Lal.  They  further  contend  that  the respondent interfered  with Damri  Lal’s possession  in July 1957. As  a result, proceedings were initiated under Section 145 of  the Criminal Procedure Code at the instance of Damri Lal. These  proceedings finally  concluded on 30.3.1959. The Sub-Divisional Magistrate, Bhadohi, held that the respondent was  in   possession  of   the  said  lands.  As  a  result, immediately thereafter  on 12.4.1959,  a suit  was filed  by Damri Lal under Section 159 of the Banaras State Tenancy Act before the Revenue Court for ejectment of the respondent and

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for recovery  of possession. Damri Lal, however, died during the pendency  of the  suit and  the present  appellants were brought on  the record  of the  suit in  his place. The suit remained stayed  for several  years. Ultimately,  the  trial court, by  its judgment and order dated 26.7.1969, held that the plaintiffs  (appellants herein) were entitled to succeed and passed a decree in their favour.      It was contended before the Revenue Court that the suit was barred  under Section  47 of  the Civil  Procedure  Code because the  proper remedy  was for  the appellants  to have executed the  compromise decree  which they  had obtained in the earlier  proceedings. A  separate suit  was barred. This contention was  negatived by  the trial  court. It held that the appellants  were dispossessed  after the  consent decree and as a result of the order passed under Section 145 of the Criminal Procedure  Code. Hence  a fresh cause of action had accrued to the plaintiffs and they were entitled to maintain the suit.      In  the  meanwhile,  some  time  after  the  compromise decree, the respondent had filed Suit No.709 of 1956 against Damri Lal in the Munsif’s Court at Gyanpur for setting aside of the  compromise decree  on the ground of fraud. The trial court held that the compromise was valid and binding between the parties and this conclusion was ultimately upheld by the High Court  in its  judgment and  order dated 28.4.1967. The attempt of  the respondent  to get  out  of  the  compromise decree had,  thus failed.  It seems that in the interregnum, he  took   possession  of   the  lands   which  resulted  in proceedings under Section 145 of the Criminal Procedure Code at the  instance of  Damri Lal.  It was, however, held there that the  respondent was  in possession  of the  land.  This compelled  the   appellants  to  file  the  suit  which  has ultimately come before us.      After the  judgment of the trial court dated 26.7.69 in that suit  decreeing the plaintiff’s suit for possession, an appeal was filed by the respondent before the Addl. District Judge at  Varanasi who  allowed the appeal and set aside the decree passed  by the Revenue court. The District Court held that the  suit under  Section 159 of the Banaras Tenancy Act was barred  under Section 47 of the Civil Procedure Code. It held that although the respondent had surrendered his rights over the  lands under the compromise decree, that decree was not executed. The respondent had not been dispossessed under the compromise  decree. The  remedy of  the appellant was to execute the  compromise decree.  In Second  Appeal, the High Court has  confirmed this conclusion holding that in view of the provisions of Section 47 of the Civil Procedure Code the suit was not maintainable.      Both the courts below seem to have ignored the terms of the compromise  decree which records that the respondent has given up  from that  day all  rights over the land including the standing  crops thereon  -  clearly  implying  that  the possession of  the land was given to Damri Lal from the date of the  compromise. It  is only  on this basis that criminal proceedings under Section 145 of the Criminal Procedure Code at the  instance of  Damri Lal  can be understood. It was on account of  the dispossession  of Damri  Lal some time after the compromise  decree that  it became  necessary for him to resort to  proceedings under  Section 145  of  the  Criminal Procedure Code. The respondent was at this time taking steps to set  aside the compromise decree by filing a suit. As the findings in  the criminal  proceedings showed the respondent in possession, the present suit was filed by Damri Lal.      On assessment of evidence, the trial court was right in coming  to   the  conclusion   that  on   account   of   the

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dispossession of  Damri Lal  after the  compromise decree, a fresh cause  of action  arose in  his favour.  There was  no occasion  for  Damri  Lal  to  have  the  compromise  decree executed since  he was given possession under the compromise decree. It  was his dispossession thereafter which gave rise to the  next round  of litigation.  Such litigation  is  not barred under Section 47 of the Civil Procedure Code. Section 47 bars  a  separate  suit  only  in  respect  of  questions relating to  the execution, discharge or satisfaction of the decree. If  there is  a subsequent  dispossession after  the decree for  possession is  complied with,  a suit  to obtain possession is not barred simply because there was an earlier decree obtained by the plaintiff for possession which decree had been complied with. In fact there will be no question of executing the  earlier  decree  when  it  has  already  been complied with.      Under Section  159 of  the Banaras  State Tenancy  Act, 1949, a  person taking  possession of a plot of land without the written  consent of  the person entitled to admit him to occupy his  plot and  otherwise than  in accordance with the provisions  of  law,  is  liable  to  ejectment  under  that section. The  present suit  was filed by the appellant under Section 159 of the Banaras State Tenancy Act, 1949. The High Court was  not right  in  holding  that  the  suit  was  not maintainable.      Learned  Advocate  for  the  appellant  has  drawn  our attention to a decision of this Court in Brij Kishore Prasad Singh and  Ors. v. Jaleshwar Prasad Singh and Ors. (AIR 1973 SC 1130).  In that  case a  decree for  partition  had  been obtained by  the parties  on a  compromise. Certain property came to  the share  of one Kishundeo Singh. But Defendants 1 and 2  had been  allowed to  continue in possession with the permission of  Kishundeo Singh,  acknowledging the  title of Kishundeo Singh to this property. The partition deed was not drawn up  as the necessary stamp paper was not produced. The Court, in  a subsequent  suit which  was filed  by Kishundeo Singh for Khas possession, held that the suit was not barred by Section  47  of  the  Civil  Procedure  Code.  Under  the compromise, Kishundeo  Singh was  in constructive possession of the property and his suit for recovery of Khas possession was not  barred. The  present suit  is on a stronger footing because under  the compromise  decree, possession was handed over to  Damri Lal,  of the  property in  question.  On  his subsequent dispossession  Damri Lal  was entitled  to file a suit for  possession on  the basis of the title which he had acquired under  the compromise decree which has been held to be valid and binding between the parties.      The appeal  is, therefore,  allowed. The  judgment  and decree of  the High  Court is set aside and the judgment and decree of the trial court is restored with costs.