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Hargyan and anr. Vs. Banwari Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 4579 of 1960
Judge
Reported inAIR1968All275
ActsEvidence Act, 1872 - Sections 91
AppellantHargyan and anr.
RespondentBanwari Lal and anr.
Advocates:H.C. Sharma, Adv.
DispositionAppeal allowed
Excerpt:
civil - ejectment - section 91 of evidence act, 1872 - suit filed for ejectment - plaintiff alleged that there was written compromise deed - plaintiff had not established that defendant had violated the agreement - held, suit was liable to be dismissed. - - as he failed to do so, it must be held that he has not established that the defendants have violated the agreement and his suit must be dismissed......plaintiff. the trial court dismissed the suit on the ground that the plaintiff had not filed the document containing the terms of the compromise which had been reduced to writing. on appeal the learned civil judge held that the plaintiff had not filed the written agreement containing the terms of the compromise, but he took the view that there was sufficient evidence to prove the terms. relying on this evidence he held that the plaintiff was entitled to a decree for eiectment unless the appellants paid a sum of rs. 1000 which according to him was due from them he gave the appellants six months' time for making the payment and directed that in case of default they should be ejected.3. in my opinion the decision of the lower appellate court is erroneous. it is the case of both the.....
Judgment:

S.S. Dhavan, J.

1. This is a defendants' second appeal from the decree of the Second Civil Judge, Meerut reversing that of the Second Additional Munsif, Ghaziabad and decreeing the plaintig-respondent's suit for their ejectment from four houses. The plaintiff respondent Banwari Lal alleged that he purchased four houses by auction purchase from one Lal Chand who had purchased them in the execution of his decrees against the defendant appellants that the appellants took forcible possession of the houses illegally and he obtained a decree for their ejectment; that subsequently the dispute led the criminal proceedings but the plaintiff and the appellants entered into a compromise under which the appellants were allowed to remain in possesion provided they paid a sum of Rs. 1000 to him; that the appellants did not carry out the terms of the compromise and were liable to ejectment

2. The defendants resisted and denied that the plaintiff was the owner of the houses. They admitted the compromise but alleged that they had fulfilled its terms by paying the required sum to the plaintiff. The trial court dismissed the suit on the ground that the plaintiff had not filed the document containing the terms of the compromise which had been reduced to writing. On appeal the learned Civil Judge held that the plaintiff had not filed the written agreement containing the terms of the compromise, but he took the view that there was sufficient evidence to prove the terms. Relying on this evidence he held that the plaintiff was entitled to a decree for eiectment unless the appellants paid a sum of Rs. 1000 which according to him was due from them He gave the appellants six months' time for making the payment and directed that in case of default they should be ejected.

3. In my opinion the decision of the lower appellate court is erroneous. It is the case of both the parties that there was a compromise and its terms were reduced to writing. It is also common ground that the document containing the terms of the compromise was not produced by the plaintiff respondent. Section 91 of the Evidence Act provides in effect that when the terms of a compromise have been reduced to the form of a document no evidence shall be given in proof of the terms of such contract except the document itself or secondary evidence of its contents if such secondary evidence is admissible in law. In the present case the terms of the compromise agreement were reduced to writing, but neither the original document was produced nor any secondary evidence of its contents was given by the plaintiff respondent. In spite of this the learned Judge relied on other evidence in violation of the express prohibition under Section 91.

4. The plaintiff's case is that he is entitled to eject the appellants because they have violated the terms of a compromise, but the latter have denied this charge The plaintiff could have proved his case only by producing the document containing the terms of the compromise. As he failed to do so, it must be held that he has not established that the defendants have violated the agreement and his suit must be dismissed.

5. I allow this appeal, set aside the decree of the lower appellate court, and restore that of the trial court.


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