Full Judgment
S.U. Khan, J.
1. Heard learned Counsel for the petitioner. No one has appeared on behalf of respondent No. 3.
2. This is landlord's/decree holders' writ petition. Petitioners filed suit (SCC Suit) No. 1096/81 against respondent No. 3 and another for ejectment and recovery of arrears of rent. According to the plaint (copy of which is Annexure-2 to the writ petition) respondent No. 3 was tenant on behalf of the plaintiffs on the ground floor accommodation of house No, 33/166, Bhar Bharia Mohal, Kanpur at the rent of Rs. 15/- per month and he was liable to ejectment on the ground of sub-letting and default. The suit was decreed ex-parte. In execution of ex-parte decree possession was delivered to the landlord on 24.12.1982. Thereafter respondent No. 3 filed an application before executing Court complaining therein that he had been dispossessed from more accommodation than mentioned in the decree. The case set-up in the said application was that in the plaint relief was sought regarding one Kothari and Rasoi (Kitchen) while respondent No. 3 had been ejected from one room, one kothari and Rasoi meaning thereby that he had been ejected from one such room which was not included in the plaint and decree. The executing Court accepted the version of the respondent No. 3 and through order dated 15.1.1983 directed re-delivery of one room to respondent No. 3. Revision filed against the said order by the petitioners/decree holders being SCC revision No. 29 of 1983 was dismissed by 2nd A.D.J., Kanpur through judgment and order dated 26.2.1983 hence this writ petition.
3. In the writ petition stay order was passed hence redelivery of possession has not taken place.
4. At the time of delivery of possession one document was signed by the decree holder and the other by judgment debtor. Document signed by the decree holder is Annexure-1 to the counter affidavit, which states that 'today on 24.12.1982 I have received possession from Mukut Behari (respondent No. 3) of disputed residence consisting of one room, rasoi, store situate in house No. 33/166 Chowk, Kanpur. The dakhalnama has been executed so that it may serve the purpose of certificate (sanad).' The other document which was executed by tenant-respondent No. 3 states as under:-
'I on 24.12.1982 have vacated my tenanted accommodation of one room, one chauka and delivered its possession to landlords/decree holders. I have taken goods in my custody.'
5. The Commissioner reported that the tenant delivered possession of one room, one kothari and kitchen.
6. From the above it is clear that there was some confusion regarding number of room//kothari//store/kitchen in the tenancy occupation of respondent No. 3. However, it is also quite clear that respondent No. 3 was tenant of the entire ground floor and suit was also filed regarding that. If there is any conflict or confusion in the description of the property in the plaint, the true extent of the property in dispute is to be judged by reading the whole plaint. Written statement and evidence of the parties if available on record and conduct of the parties prior as well as subsequent to filing of the suit is also to be looked into. The documents signed by both the parties on 24.12.1982 at the time of delivery of possession clearly prove that respondent No. 3 was dispossessed from the entire accommodation on the ground floor, which was in his tenancy occupation. The tenant describes the property from which he had been dispossessed as one room; one chauka while landlords described the same as one room, rasoi and store. When the tenant himself gave in writing that he had delivered possession of one room and one chauka then he could not subsequently say that he was dispossessed from two rooms and one chauka. It appears that the room might be of such nature that it could be described in both ways either as one room or as one room and one store the dividing features between the two being quite thin.
7. In the plaint property in dispute was described in the schedule mentioned at the bottom of the plaint. In the schedule it was mentioned that 'house which is situate on ground floor of house No. 33/166 which consists of one kothari and rasoi.' Thereafter eastern, western, northern and southern boundaries were given. The boundaries encompassed the entire ground floor.
8. Perusal of entire makes it clear that the property in dispute regarding which relief of possession was sought consisted of entire tenanted accommodation of the ground floor. Even if it is assumed that the entire tenanted accommodation consisted of three portions/rooms (described either as room or kothari or store or chauka), still entire tenanted accommodation was subject matter of the suit. This is the correct interpretation of the plaint read as a whole coupled with conduct of the parties on the date of delivery of possession i.e. 24.12.1982.
9. The Revisional Court held that the suit was bad for partial ejectment hence the suit itself should not have been decreed. The Revisional Court also held that Commissioner should not have executed the decree, as it did not relate to the entire tenanted accommodation. Revisional Court also took into consideration prior disputes between the parties and the fact that one fictitious person had been impleaded as alleged sub-tenant in the suit. These things were wholly irrelevant for the purpose of the dispute required to be decided by the Revisional Court. In my opinion orders passed by the both the Courts below are erroneous in law. If there was any doubt or confusion in the property regarding which relief was sought in the plaint, the same was amply removed by giving boundaries. In the facts and circumstances of the case boundaries of the property given in the plaint should be taken to be decisive factor in determining the property in dispute.
10. Accordingly, writ petition is allowed. Both the impugned orders are set aside. The application of respondent No. 3 for re-delivery of possession of one room from which he was evicted in execution of decree on 24.12.1982 is rejected.