Dawson Miller, C.J:— This is an appeal from an order of the District Judge of Muzaffarpur dated the 2nd May 1921 dismissing the appellant's application for execution of a decree. The suit was instituted by the appellant Mahadeo Prasad Sahu against the respondent Gajadhar Prasad Sahu his uncle and others, claiming partition of family property. The decree of which execution is sought was passed on the 24th July 1908 and was the result of a compromise between the parties. In the present execution case various points were raised and determined by the learned Judge against the appellant. In order to understand how these points arise it is necessary shortly to state the history of this case. In the year 1901 it appears that a previous suit for partition was instituted by the appellant against the same defendants or their predecessors and in that suit a compromise was arrived at and a decree was passed in April 1901 dividing the family property in the terms of the compromise. Subsequently the appellant sued the respondent and other parties claiming to set aside the compromise and have a fresh partition. The suit, was decreed in the lower Court; there was an appeal and in the appellate Court after a further compromise a decree was passed as I have already said on the 24th July 1908. The question for determination in that appeal depends principally upon the construction of the compromise decree passed on the 24th July 1908 in the High Court. Some of the properties which had been awarded to the appellant under the previous decree were exchanged for properties which had been awarded by that decree to the respondent Gajadhar Prasad Sahu each of them exchanging the properties which they had received by the previous decree. Under the third clause of the decree it was provided that instead of certain properties mentioned in Schedule I part 1 of the present decree which had been allotted to the plaintiff under the decree of 1901 the properties mentioned in Schedule III part I of the present decree with all outstanding and accruing rents and profits except the amount covered by the decrees which the defendant Gajadhar had already obtained against any tenant be allotted to the plaintiff. Then further provision is made with respect to other properties with which we are not concerned and clause 4 says that the interchange of the properties between the plaintiff and the defendant No. 1 that is to say the present appellant and the respondent, be subject to the following condition, that any holdings purchased from raiyats oil account of arrears of rent or other dues to remain with the parties who would themselves be entitled to the villages according to this decree-subject to one party paying to the other the purchase money as stated in the sale certificates; that the interchange of allotments be regarded to have taken place from the 1st Asar of the current Fasli year 1315, (that is June 1908) agreeing with the 1st Assar 1316 of the agricultural year; that the village papers, Kabuliats etc., of the properties exchanged between the plaintiff and the defendant No. 1 be delivered to each other within 3 months of the date of the decree. Then the 5th clause provides for the delivery of possession of the interchanged properties and holdings within two weeks from the date of the decree. The 7th clause which is the only other that we have been referred to provides that if the plaintiff or the defendant No. 1 has sold at a time when he was in possession under the decree of the 17th April 1901 any of the said properties respectively allotted to him he has to pay to the other party the consideration money received by such sale and if any property had been mortgaged or otherwise encumbered the party mortgaging or encumbering it do redeem the property or otherwise indemnify the other party for any loss that the latter may sustain.

2. The first question which arises, is as to the properties mentioned in Schedule 1, 2, and 3 of the plaintiff's petition.

3. Those mentioned in the 1st Schedule are zerait lands which between the time of the decree of 1901 and the decree in the present suit in 1908 were granted brahmottar by the respondent Gajadhar Prasad to a Kabiraj Jaisri Bhat Misra in consideration of certain medical services rendered by him to the respondent's family. That was granted rent free. The property, in the 2nd Schedule was zerait lands which had been permanently settled by the respondent under Patta and Kabuliat with certain tenants, and the property mentioned in the 3rd Schedule was zerait lands settled by the respondents under Adhkati receipts and Jamabandi situated within certain of the villages which had to be handed over to the appellant. The, question with regard to these properties is whether the disposition of them made by the respondent was an encumbrance in respect of which, under the terms of the decree which I have read, there would be a liability upon the respondent to indemnify the appellant. The learned Judge took the view that the mere grant of lands rent free or the grant of the landlord's zerait land to a tenant for the purpose of cultivation could not be regarded in the nature of an encumbrance. In my opinion in arriving at this decision he was wrong. In the ordinary acceptation of the term it seems to me that apart from mere dealings such as mortgages which create a charge upon the land you may well have other dealings which amount to an encumbrance. Anything, in my opinion, which interferes with the unrestricted rights of the proprietor as they then existed would be an encumbrance upon the land, even the granting of a lease of zerait lands, that is to say the lands, which the landlord is entitled to hold in direct possession and to cultivate for his own purposes. A lease of such lands granted to an occupier in circumstances which would give him a right of occupancy over the land would, in my opinion amount to an encumbrance. Therefore in so far as the learned Judge came to the conclusion that the properties mentioned in Schedules 1, 2, and 3 had not been encumbered I think he was wrong. Upon this part of the appeal the case must go back to determine the amount which the appellant is entitled to recover from respondent as compensation or indemnity for the encumbrances created. That is a question of fact which will depend upon the evidence produced.

4. The next point which was raised before us was that the respondent had out down certain trees standing upon the villages which had to be transferred to the appellant. The learned Judge considered that even if there had been a breach of the terms of the compromise, by reason of the cutting down of the trees, that was not a matter in respect of which the appellant could claim any relief in execution of the decree, but he would have to bring a separate action in order to enforce his claim. In my opinion in arriving at that decision he was wrong but the appellant has claimed compensation not only for any trees which may hive been cut down after the date of the decree but also for all those which were cut down between the date of the 1st decree in 1901 and the date of the present decree. His right to compensation depends again upon the terms of the decree itself. It is perfectly clear, to my mind, that the appellant has no right to any compensation for trees which may have been out down before the date of the present degree. Up to that time the parties knew exactly what the condition of the properties was. The appellant was claiming these particular properties in lieu of those which had been awarded to him under the previous decree and he cannot complain if those properties turn out eventually to have less trees upon them than he imagined they had at the date when the decree was passed. But the decree having once been passed the respondent was bound under the terms thereof to hand over property as it then existed in accordance with the terms of the decree to the appellant and, if before doing so he chose to cut down trees and appropriate them to his own use, then he was acting in breach of the obligation he was under by reason of the decree and was in fact committing a breach of trust. From that time he was only in possession of the property in a fiduciary capacity and for the purpose of handing it over to the appellant. I think therefore that in so far it can be shown that any trees were cut down after the time when the appellant became entitled to possession of the property the respondent will have to pay their value. I may point out however that in the petition no distinction is mile between the trees which were cut down before the date of the decree and those which were cut down, afterwards. Nor indeed is it in terms alleged that any of the trees were cut down after the date of the decree. What is claimed is a lump sum in respect of trees according to the different villages. I think that the learned Judge, when this case goes back to him, should insist upon the appellant giving full particulars as far as he is able of the trees which he alleges were cut down since the date of the decree, their value and their situation, that is to say the villages in which they are alleged to have been. The respondent will then be in a position to know exactly what case he has to meet whereas under Schedule 4 as it at present appears it would be impossible for him to do so. Any particulars which the respondent may require with regard to the nature and situation of these trees, I also think, ought to be furnished by the appellant.

5. The next point relates to the recovery of a sum of money amounting to Rs. 2,055 the value of a 5 annas 6 gandas share in Yaqubpur, one of the villages which had to be handed over to the appellant. The appellant contends that although he recovered a sum of Rs. 320 in a previous execution as the sale proceeds of this village in accordance with his rights under the decree, in fact he is entitled altogether in respect of that village to a sum of Rs. 2,375 after giving credit for that which he has already received. The position with regard to this village is somewhat peculiar. It appears that between the date of the previous decree and the date of the present decree that village was sold by the respondent in execution of a money decree obtained against him by Abdul Rahman for a sum of Rs. 320. That sale took place on the 22nd April 1998 very shortly before the decree was passed. When the appellant applied for execution of the decree in 1908 he raised the point that this sale to Abdul Rahman, the auction purchaser who held a decree against the respondent was a purely collusive affair, that Abdul Rahman never in fact had any legal claim against the respondent, that the suit was allowed to go by default and that the property was sold to Abdur Rahman merely as the creature or the respondent and that although the sum of Rs. 320 was named as the sale price in fact the property never passed out of the possession of the respondent although nominally Abdur Rahman was put in possession. It appeared further that on some day in August of the same year the purchaser sold the property to one Shamsuddin for a sum of Rs. 367-8-0. The appellant's, contention was that this also was merely another attempt on the part of Gajadhar to defeat the appellant's claim by pretending to have the property transferred not only once but a second time from the original purchaser to a third party, whereas in truth it remained all along the property of the respondent. When this matter was raised before the learned Judge in execution, he on the 21th September 1908, said that the appellant must either accept the purchase money which was admittedly Rs. 320 recovered by the respondent, or he must claim and prove that the property had never in fact passed out of the possession of the respondent. What action the appellant actually took is not very clear but we do know that on the 4th March 1909 in the same execution proceedings he put in a petition claiming that possession of this property, 5 annas 6 gandas share in Yaqubpur, should be given to him. That application was apparently refused, the learned Judge of the executing Court considering that the petition, as he stated thereon, had connection with the execution case. What his reasons for arriving at that conclusion were one cannot, from the materials before us, positively state. It may be that he thought that the appellant was only entitled to get the actual sale proceeds. It may be that he thought the appellant could not in that execution case ask that the property which had been sold should be handed over to him but must first seek to have the sale set aside or to pursue the property in the hands of the purchasers. However that may be no further action was taken upon the decision of the learned Judge of the executing Court. There was no appeal from his decision and there the matter rested until the 31st March 1911 when the decree-holder took out of Court the sum of Rs. 320 which had been paid in as the purchase price of this property. It is said that he took it out of Court under protest but we have not seen any document which shows that was so. However that may be whether he took it under protest or not the fact remains that the decision of the. Court having been against him, he subsequently took no action to try and get that decision set aside and he did eventually take out this sum of Rs. 320. In the present application he is asking that this matter should be re-opened and he alleges, and it is not disputed that on the 9th November 1911 Shamsuddin the purchaser from Abdur Rahman, sold this very property back again to Gajadhar for a sum of Rs. 400. The appellant again says that this was a purely fictitious transaction Gajadhar having been the owner all along, and that subsequently in August 1918 Gajadhar sold this property, this time apparently a genuine transaction, for Rs. 2,375. The appellant in his present petition claims that the property never really having passed out of the hands of Gajadhar he was entitled to it under the decree and that property or, at all events, its real value which he says was Rs. 2,375 should be handed over to him. It seems to me that the appellant has put it out of his power to ask us now to re-open this question. The matter was one which was sub-judice in the year 1908. It was decided against the appellant and he accepted that decision. He was given the option either of accepting the sale-proceeds or of proving that the sale in fact was merely a bogus transaction. He eventually elected to accept the sale-proceeds and I do not think that it makes his case any better, even if it be a fact as he states, that he took the sale-proceeds out under protest. He elected the course, that he would pursue and he cannot afterwards turn round, merely because Gajadhar has bought back the property and sold it for a greater price, and be heard to say that the matter should now be re-opened. So far as this question is concerned I think that the learned Judge's decision, although he arrived at it upon a different consideration, must be upheld.

6. The next point for our consideration it one which arises under Schedule 6 of the application and relates to the arrears of rent which were due at the time when the decree was passed. It will be remembered that by the terms of the decree the properties to which the appellant was entitled were to be handed over with all outstanding and accruing rents and profits except the amounts covered by decrees which the respondent had already obtained against the tenants, and delivery of possession was to be given within two weeks. The appellant's case is that the arrears of rent due at that time were something over Rs. 21,000, that the actual rents which appeared to have been still out-standing and not recovered at the date when he got possession were Rs. 10,680 leaving a balance of something over Rs. 10,500. He therefore claims that the respondent should refund him this amount. He alleges in his petition that soon after the passing of the decree in the High Court the respondent fraudulently and illegally got a considerable amount of the arrears of rent realised from the tenants of the villages which were allotted to the appellant and after remitting portions of the rent got entries made antedated in the Siaha in respect of the same and issued receipts also antedated with the result that the actual amount of rent shown to be still outstanding at the date of the decree was only roughly about half of whit it ought to be. Of course if the appellant could make out this case he will undoubtedly be entitled to recover the balance from the respondent to the extent to which the respondent has himself improperly collected these rents. When I say improperly collected the rants what I mean is not that he was not entitled to collect but that if he did he must hold them as trustee for the benefit of the appellant. There was only a short time between the date of the decree and the actual date when the appellant got possession and whether it was necessary to collect any rents during that time for the purpose of saving limitation or for any other reasons we do not know nor is it material. But if the appellant can make out his case then it is quite clear that any arrears of rent which were collected in fact during that period must be handed over to the appellant. It was contended again with regard to this part of the case that the question was not one which could be dealt with in this execution but that a fresh suit must be brought to establish the appellant's claim. I am unable to accept this view. I seems to me that under the decree itself the arrears of rent were clearly due to the appellant and if the land was handed over, the rent having been already collected, then the respondent who collected them is clearly responsible under the decree to hand them over to the appellant.

7. A further point with regard to this part of the case was taken, namely, that in stating the actual amount which was due the appellant in his application for execution did not properly state how the amount of arrears of rent improperly collected was made up. This is quite true. The manner in which he has done it is certainly no basis upon which a decision upon this part of the case can be based. Nor does it afford the Court any assistance in arriving at the proper amount, if any, which is due Tinder this head. What the appellant has done is this. He says in respect to the properties which I had to exchange with you, the respondent, there was a sum of ??? over Rs. 21,000 due for arrears of rent. You told me that the arrears of rent of the property which you had to hand over to me were about the same sum. Therefore he puts down that sum as the proper sum to be received. He deducts the arrears which in fact had been left uncollected, namely, Rs. 10,680 which shows a balance of Rs. 10,554 and this he says is the sum due. That of course is not the proper way to arrive at it. What the appellant will have to show will be the actual amount that he has collected for arrears since he got possession of the property, that is to say arrears due at the date of the decree, and the actual amount of arrears which were in fact then due and which have been improperly collected by the respondent.

8. In my opinion the appeal must be allowed, the decision of the District Judge is set aside except as to the question arising under Schedule 5 with regard to Mauza Yaqubpur and the case will be sent back to the Lower Court to dispose of this application for execution after enquiry into the evidence in accordance with the directions which appear in this Judgment. I ought to add that it will be open to the judgment-debtor to raise any of the points which he raised in his objection and which have not already been disposed of in this appeal. There was also a question raised as to the court-fee but that does not seem to us to arise at the present juncture. I think that the appellant is entitled to his costs of this appeal to the extent to which he had succeeded.

9. Jwala Prasad, J.:— I agree to the order proposed.

10. Case remanded.