Sumanta Mukherjee v. Bharati Bhattacharjee — 1992 DIGILAW 429 (CAL)

Judgment 1. THE instant application under Section 115 of the Code of Civil Procedure is directed against an Order No. 20 passed on. September 8. 1992 by the learned Munsif, 2nd Additional Court. Alipore 24-Parganas (S) in title execution case No. 25 of 1991 arising out of title suit no. 186 of 1986. 2. THE plaintiff petitioner filed a title suit being Title Suit No. III of 1985 in the 2nd Court of Musiff, Alipore which was subsequently on transfer, renumbered as Title Suit No. 186 of 1986. The said title suit was decreed in favour of the plaintiff petitioner. The defendant opposite party preferred an appeal being Title Appeal No. 32 of 1990 before the learned District Judge, alipore and the said appeal was dismissed for default. On June 19, 1991 an application for restoration of the appeal was filed by the defendant opposite party which is still pending. The plaintiff made several attempts for amendment of the schedule to the plaint and the decree but all those attempts failed. Thereafter the plaintiff filed an application for execution of the decree passed in Title Suit No. 186 of 1986 on or about July 1, 1991. By execution of the decree on June 28, 1992 the petitioner was given possession of the suit property with the help of the bailiff and after the defendant opposite party filed an application for restoration of the possession of the room delivered in execution of the decree and the said prayer for restoration was allowed by the order impugned in this application on September 8, 1992. 3. IN the schedule to the plaint the suit property was described as follows:- "all that the servant's room on the Western side appertaining to flat No. III, 'a' type on the 11th floor at premises No. 58/1, Ballygunge Circular road, P. S. Ballygunge, Calcutta-19 under the illegal occupation of the defendant No. 1 and as 'depicted in the annexed map or plan" The ordering portion of the judgment states that the defendant No. 1 was directed to quit, vacate and deliver khas possession of the suit premises in favour of the plaintiff etc. 4. THE question now centres round the existence and identification of the suit premises. 4. THE question now centres round the existence and identification of the suit premises. In the schedule to the plaint it has been stated that the suit premises lay to the western side of Flat No. III A type and this description was sought to be corrected by the petitioner as already stated on various occasions but was rejected although. The plaint schedule does not stop merely with the description of the suit property by stating that it is to the western side of Flat no. III A' type but it goes on to state that as depicted in the annexed map or plan. A sketch map of the property which was appended to the plaint has been handed up to this court from which it appears that the servants' room concerned was actually on the eastern side of Flat No. III 'a' type and both the parties were quarrelling and litigating over the servants' quarter which appears on the western side of Flat No. 112 b' type in occupation of the defendant. The contention of the defendant before the executing court after execution case was that as the plaint stated the disputed premises to be on the western side of the plaintiffs Flat No. 111 a' type, no delivery of possession could be given to the plaintiff in respect of the servants' quarter which was situated on the eastern side of the plaintiffs Rat but which was situated in the western side of the defendant's apartment. 5. IT appears from the records of the execution proceeding that the defendant opposite party herself stated on June 27, 1992 as follows:-"in respect of the court's order I have given the possession of the disputed servant's room to the decree holder". So it is very much known to the defendant opposite party as to which was the disputed room in whatever way it may have been described in the schedule to the plaint or in the decree. 6. MR. So it is very much known to the defendant opposite party as to which was the disputed room in whatever way it may have been described in the schedule to the plaint or in the decree. 6. MR. S. Roy Choudhury learned advocate appearing for the defendant opposite party sought to argue with considerable force that the plaintiff petitioner's application for amendment of the Plaint and the judgment at various stages of the proceeding having failed, the point is concluded by the principles of res judicata and the plaintiff cannot, in that state of affairs take the possession of servants' quarter which was on the east of the plaintiffs apartment No. 1ll 'a' type. The cases; cited by Mr. Roy Choudhury are cases on the point of res judicata and these cases laid down time tested proposition of law with which I agree with the highest of respect but the question is those cases have no manner of application in the facts and circumstances of the present case. It is not a question as to whether refusal to grant some amendment of some pleadings would prevent the delivery of suit premises which was on the eastern side of the plaintiffs apartment when the decree was for suit premises on the western side of the plaintiffs apartment. Both the plaint and the decree wrongly described the location of the suit premises but both the parties understood the suit premises as they were litigating over only one room which was in between apartments of the plaintiff and defendant. Had the disputed room been really to the west of the plaintiffs apartment the defendant opposite party would not even be interested in such a room. In this connection the defendant's declaration in the execution papers are also significant to the extent that she knowingly delivered possession of the suit premises in terms of the orders of the court. The plaint's schedule undoubtedly at one place described the suit premises to be situated at the western side of the plaintiffs apartment but it also stated that the suit property was "as depicted in the map or plan" which was to the east of the plaintiff s apartment and west to the defendant's apartment. The plaint's schedule undoubtedly at one place described the suit premises to be situated at the western side of the plaintiffs apartment but it also stated that the suit property was "as depicted in the map or plan" which was to the east of the plaintiff s apartment and west to the defendant's apartment. In fact, the learned executing court, himself in passing the impugned order confused between the expressions eastern and western as in the second paragraph of the certified copy of the impugned order, the executing court itself stated that by filing the petition under section 151 of the Code of civil Procedure the judgment debtor had prayed for an order for restoration of the servants' room on the 'eastern' side of the 11th floor being Flat No. 112 b' type at the premises concerned. It is nobody's case that there is any servants' room on the eastern side of defendant's flat coupled with the fact that the defendant admittedly had never delivered possession of any servants' room in the eastern side of her flat. All parties specialty the defendant understood that the suit premises means the servants' room an the eastern side of the plaintiffs apartment and that is why she gave up the possession of that room purportedly under the order passed by the executing court. 7. IN this connection a reference may be made to the case of Topanmal chhotamal vs. M/s Kundomal Gngaram and Ors. reported in AIR 1960 SC 388 where in their Lordship the Supreme Court held, inter alia, that in case of ambiguous decree it is the duty of the executing court to construe the decree and for that purpose it would be certainly entitled to look into the pleadings and the judgment and if the learned executing court in passing the impugned order had looked into the pleadings and the judgment the cloud would have cleared and he would not have been lost to the web of technicalities and legal niceties including the technicalities of the principles of res judicata. In this connection a reference may also be made to the case of Bhavan Vaja and Ors. vs. Solanki Hanuji Khodaji Mansang and Anr. reported in AIR 1972 SC 1371 . In this connection a reference may also be made to the case of Bhavan Vaja and Ors. vs. Solanki Hanuji Khodaji Mansang and Anr. reported in AIR 1972 SC 1371 . In paragraph 19 of the said judgment The Lordships of the Hon'ble Supreme court stated as follows- "19 it is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing, a decree it can and in appropriate case, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in thus case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as, by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them. " 8. IN this connection a reference may also be made to the "a selection of legal Maxims Classified and Illustrated" by Herbert Broom. At page 426 of the tenth Edition we find the interpretation of the doctrine of Falsa Demonstration non Nocet. Falsa demonstration means an erroneous description of a person or a thing in a written instrument: and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise. This explanation has been borrowed from the case of Cowen vs. Truefitt 1899 2 Ch. 309 at page 311. We can also turn to "a treaty on deeds" by Robert f. Norton 2nd Edition where the doctrine of Falsa Demonstration Non Nocet has been dealt with in the following words namely, "where the parcels are described by both a general or collective, and a special description, or divers special description, and nothing exists which satisfies all descriptions, but something exists which satisfies some or one of them and is described with sufficient certainty, the other or others may be disregarded". Norton, quoting from Doe vs. Galloway (1833), 5 B. and Ad. 43 at page 51 observes as follows :- "the rule is clearly settled, that when there is a sufficient description set forth of premises by giving the particular name of a close, or otherwise, we may reject a false demonstration. " we may also refer to the case of Llewellyn vs. Earl of Jersey (1843) IIM and W 183 at page 189. The passage runs as follows:-"as seen as there is an adequate and sufficient definition, with convenient certainty, or what is intended to passed by a deed, any subsequent erroneous-addition will not vitiate it". 9. NO useful purpose will be served by multiplying illustration. The passage runs as follows:-"as seen as there is an adequate and sufficient definition, with convenient certainty, or what is intended to passed by a deed, any subsequent erroneous-addition will not vitiate it". 9. NO useful purpose will be served by multiplying illustration. So far as the doctrine of Falsa Demonstration on nocet is concerned it may be stated with some amount of certainty that what principles apply to deeds or instrument the same principle will also apply to description of property in litigation. 10. SUMMING up it may be stated that although parties were litigating over the suit premises which was allotted to the plaintiff by the co-operative Society concerned erroneously, the same may have been described in the schedule to the plaint coupled with the fact that the defendant opposite party delivered the vacant possession of such a property in terms of the courts order in the execution proceeding being fully aware of the situation of the property, the defendant cannot be heard to lay a claim on the said property basing her case on the filmy grounds that the property in the plaint was described to have been to the western side of the plaintiffs apartment and possession of the room concerned was taken from the eastern side of the plaintiffs apartment. In passing the impugned order the teamed executing court has not cared to go through the pleadings or even the judgment to construe the decree and based its finding merely on high and dry technicalities of law. When the Hon' ble supreme Court in the two cases cited hereinbefore have really cast an obligation on the executing court to construe the decree with reference to the pleadings and the judgment the order impugned cannot be sustained in law. 15. In the circumstances, the application succeeds and is made absolute, the order impugned in the revisional application is set aside. There will be no order as to costs. Application allowed.