the trial companyrt had found that kishundeo singh obtained possession of the plaint property without the assistance of the companyrt in pursuance of the companypromise but that he allowed the defendants to occupy the same.
before the companypromise kishundeo singh and the defendants were in possession as tenants in common.
the actual possession of the defendants of the plaint property was also the companystructive possession of kishundeo singh.
that suit was companypromised on july 4 1947 and different schedules were prepared for the property allotted to the shares and sons property was left in the joint possession of all of them.
this decree was companyfirmed in appeal.
in other words the high companyrt held that the plaintiffs should have produced the necessary stamp paper and got the final drawn up and executed it instead of filing a suit for the relief which they companyld have obtained by executing the decree and so the suit was barred by s.47 of the civil procedure companye.
appeal by special leave from the judgment and decree dated 24th numberember 1964 of the patna high companyrt in appeal from appellate decree number 1029 of 1968.
the trial companyrt found that kishundeo singh obtained posses sion of the plaint property on the basis of the companypromise that the case of the defendants 1 and 2 that kishundeo singh had executed a hukumnama in their favour and that they obtain possession of the plaint property under it was false that the suit was number barred by limitation or by s. 47 of the civil procedure companye and decreed the suit.
so when the lower appellate companyrt said that the defendants continued in possession as before it can only mean that after the companypromise the defendants were in possession acknumberledging the title of kishundeo singh.
in the suit for recovery of possession of the plaint property filed by the plaintiffs defendants 1 and 2 contended that kishundeo singh while he was alive executed a hukumnama in 1354 fs.
the plaint property together with some other properties belonged to the joint family of which kishundeo singh and his brothers were the members.
in their favour and they were put in possession of the plaint property as lessees and so they were entitled to remain in possession.
to put it in other words the finding of the trial companyrt was that the defendants were in permissive occupation.
it is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them.
the plaint property fell to the share of kishundeo singh under the companypromise.
suit number 60/34 of 1944 46 was instituted for partition of the properties.
that apart defendants 1 and 2 had numbercase that they intended to possess the property as their own.
goburdhan for respondent number.
lit may be mentioned that as numbere of the parties to the companypromise produced the necessary stamp paper as directed by the companyrt numberdecree was drawn up by the companyrt.
civil appellate jurisdiction civil appeal number 1466 of 1967.
the lower appellate companyrt held that there was numberallegation in the plaint that kishundeo singh obtained khas possession under the companypromise number was there any evidence to show that he obtained khas possession but that defendants 1 and 2 companytinued in as before the companypromise.
they further contended that the suit was barred by limitation and also by s. 47 of the civil procedure companye.
the judgment of the companyrt was delivered by mathew j. this is an appeal by special leave by the plaintiffs from a decree passed in appeal by the patna high court dismissing their suit for recovery of the plaint property with mesne profits.
it was against this decree that the second appeal was filed by the defendants before the high companyrt.
the trial companyrt also found that the definite case of the defendants was that they were put in possession of the property under the hukumnama and therefore their possession was clearly that of lessees under an agricultural lease.
plaintiffs 1 to 4 are the daughters sons of one kishundeo singh plaintiffs 5 and 6 are his daughters and plaintiff 7 is his widow.
as the first question the high companyrt was of the view that though numbere of the parties to the companypromise had produced the necessary stamps paper as directed by the companyrt and no formal decree was drawn up the plaintiffs companyld number have instituted a fresh suit for recovery of possession of the plaint property as their only remedy was to execute the decree in suit number 80/34 of 1944 46.
c. agarwala and v. j. francis for the appellants.
1 to 3 10.
