Sir Madhavan Nair.-

The appeal arises out of proceedings in execution of the decree in Suit No. 177 of 1924 (remanded), made by the Subordinate Judge of Arrah on 17 - 5 - 1930, which was modified by the High Court of Judicature at Patna in P. A. No. 130/1930, on 9 - 1 - 1935.

[2] The order of the High Court in pursuance of which execution proceedings had been taken runs as follows:

"In the execution there must be an enquiry as to the respective areas of Balbhadarpur and Darihat as they existed at the time of the defendant's mortgages irrespective of the cadastral survey."

[3] The order now appealed against was passed by the High Court on 29 - 1 - 1944, setting aside the order in execution proceedings of the Additional Subordinate Judge of Arrah dated 18 - 11 - 1942, passed in pursuance of the High Court's order in F. A. No. 130/1930 (quoted above), and dismissing the said execution proceedings.

[4] The question for decision in this appeal is whether the appellants (decree - holders) are entitled to get in execution proceedings an order for possession of the village Darihat which had been decreed to them, the boundaries and area of which cannot be ascertained and which they are unable to identify.

[5] To appreciate the arguments, the facts and circumstances which led to the passing of the High Court's order in P. A. 130/1930 must first be mentioned. These are as follows :

"Jamalpur, Tajpur, Darihat and Balbbadarpur were four villages of the mahal Balbhadarpur, also known as Balbhadrpur Darihat, which consisted of 15 villages. The mahal belonged to two brothers. A village called Arjunbigha had been constituted out of portions of Jamalpur, Tajpur and Darihat.

On 15 - 7 - 1889, a usufructuary mortgage had been executed by the mortgagors in respect of the village Arjunbigha in favour of the respondents' (judgment debtors') predecessors - in - interest. On the next day a simple mortgage was executed in their favour in respect of village Balbhadhrpur."

[6] At the time of the above mortgages, a partition was proceeding in respect of the whole mahal, by which the mahal was divided into two estates and each brother was given one estate. In spite of this partition the two brothers executed on 10 - 2 - 1896, a simple mortgage of the entire mahal in favour of the appellants' predecessor - in - interest.

[7] Soon after the execution of mortgages litigation began. The predecessors - in - interest of the parties to this appeal instituted suits on their respective mortgages and obtained decrees which were ultimately confirmed by the Privy Council: see 22 CWN 505.1 Both decree - holders took out execution of their respective decrees and purchased the mortgaged properties. Though the appellants purported to purchase the entire mahal, it is clear that they had no title to that part of it which consisted of the villages of Arjunbigha and Balbhadarpur, in respect of which title vested in the respondents.

[8] The respondents having been put in possession of both Balbhadarpur and Arjunbigba, proceedings were taken in the Land Registration Court by the appellants but they were resisted by the respondents who had forestalled them in the matter of registration; whereupon the appellants instituted Suit No. 177 for possession of some of the villages in mahal Balbhadarpur excluding the principal village Bablbadarpur. The respondents (defendants to that suit) contended that by the year 1889 when they had taken their mortgages Balbhadarpur bad become enlarged by the inclusion in it of the three villages Jamalpur, Tajpur and Darihat and the villages had lost their identity. Ultimately, the appellants were given a decree for the villages of Jamalpur, Tajpur and Darihat.

[9] In FA No. 130/1930, the above decree was modified and the plaintiffs in the suit now represented by the appellants were given a decree only for Darihat. It was found as a fact that by the year 1889, when the mortgages had been executed, Balbhadarpur had become enlarged by the merger in it of the three