Judgment

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.

2. Plaintiffs 1 to 4 are the daughter s sons of one Kishundeo Singh, plaintiffs 5 and 6 are his daughters and plaintiff 7 is his widow. The plaint property together with some other properties belonged to the joint family of which Kishundeo Singh and his brothers were the members. Suit No. 80/34 of 1944-46 was instituted for partition of the properties. That suit was compromised on July 4, 1947 and different schedules were prepared for the property allotted to the shares and some property was left in the joint possession of all of them. The plaint property fell to the share of Kishundeo Singh under the compromise. It may be mentioned that as none of the parties to the compromise produced the necessary stamp paper as directed by the Court, no decree was drawn up by the Court.

3. 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 in their favour and they were put in possession of the plaint property as lessees and so they were entitled to remain in possession. They further contended that the suit was barred by limitation and also by S. 47 of the Civil Procedure Code.

4. The Trial Court found that Kishundeo Singh obtained possession of the plaint property on the basis of the compromise, that the case of the defendants 1 and 2 that Kishundeo Singh had executed a hukumnama in their favour and that they obtained possession of the plaint property under it was false, that the suit was not barred by limitation or by S. 47 of the Civil Procedure Code and decreed the suit. This decree was confirmed in appeal. It was against this decree that the second appeal was filed by the defendants before the High Court.

5. The High Court held that the plaintiff should have paid the stamp fee and got the decree drawn up in Suit No. 80/34 of 1944-46 and executed it and so the suit was barred by S. 47 of the Civil Procedure Code. The Court further held that since the plaint property had vested in the Bihar Government under the Bihar Land Reforms Act, 1950, hereinafter referred to as the Act, the plaintiffs were not entitled to maintain the suit. Therefore, the High Court allowed the appeal and dismissed the suit.

6. The two questions that arise for consideration in this appeal are: whether the suit was barred by S. 47 of the Civil Procedure Code and whether under the provisions of the Act, the plaint property had vested in the Government and, therefore, the plaintiffs were incompetent to maintain the suit.

7. As regards the first question, the High Court was of the view that, though none of the parties to the compromise had produced the necessary stamp paper as directed by the Court and no formal decree was drawn up, the plaintiffs could not have instituted a fresh suit for recovery of possession of the plaint property as their only remedy was to execute the decree in Suit No. 80/34 of 1944-46. In other words, the High Court held that the plaintiffs should have produced the necessary stamp paper and got the final decree drawn up and executed it, instead of filing a suit for the relief which they could have obtained by executing the decree and so, the suit was barred by Section 47 of the Civil Procedure Code.

8. The Trial Court had found that Kishundeo Singh obtained possession of the plaint property without the assistance of the Court in pursuance of the compromise but that he allowed the defendants to occupy the same. To put it in other words, the finding of the Trial Court was that the defendant of the Trial Court was that the defendants were in permissive occupation. The Trial Court also found that the definite case of the defendants was that they were put in possession of the property under the hukumnama and, the