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1942 DIGILAW 14 (CAL)

Sita Nath Saha v. Hari Rani Dasya

1942-01-14

body1942
JUDGMENT 1. We are of opinion that this appeal should succeed. We do not agree with the learned District Judge that the portion of the decree which related to the pathway was incapable of execution. It is true that there is discrepancy between the partition papers consisting of the chitta and the dole on the one hand and the partition map on the other though they were both made parts of the decree. But in such cases the rule that is to be followed is that the partition papers should prevail over the map inasmuch as the map simply purports to delineate the plots that are allotted to the co-sharers by the partition paper [vide Anil Kumar Biswas v. Rash Mohan Saha 28 C.W.N. 46, (1923)]. The trial Judge, therefore, was perfectly right in directing that the partition map should be rectified in the light of the dole and the chitta. The District Judge has observed in one passage of his judgment that the chitta did not agree with the dole. We do not think that there is any warrant for this observation. No such objection was hinted at in the petition of objection preferred by the Respondents and this is also not mentioned anywhere in the report of the Commissioner. Mr. Chakravartti has satisfied us that the total area as given in the chitta exactly tallies with the total area of the different plots as shown in the dole. The learned Judge was of opinion that to correct the partition map would be going behind the decree. But in this case the executing Court was the very same Court which made the decree and there is nothing in law to prevent it from amending the decree by bringing one portion of it in conformity with the other. The result, therefore, is that we allow the appeal, set aside the order of the lower Appellate Court and restore that of the trial Court. We make no order as to costs of this appeal.