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Amarnath and ors. Vs. Deputy Director of Consolidation, Kanpur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 316 of 1972
Judge
Reported inAIR1985All163
ActsTransfer of Property Act, 1882 - Sections 52
AppellantAmarnath and ors.
RespondentDeputy Director of Consolidation, Kanpur and anr.
Appellant AdvocateV.K.S. Chaudhary, Adv.
Respondent AdvocateS.N. Agarwal, Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
.....(ii) pendency of litigation - section 52 of transfer of property act, 1882 - doctrine of privity - suit for partition decided - admission by transferor - transferee bound by the admission. - - 5. the learned counsel for the contesting opposite party has tried to support the impugned judgment of the revisional court and has emphasized that the plots mentioned in the written statement as well as the plots mentioned in the plaint would be treated as subject matter of the partition suit. for the sake of argument even if it is assumed that the compromise in the partition suit might suffer from any technical infirmity but the admission regarding the claim of the contesting opposite (party) in the compromise decree would be a good piece of evidence and if the revidional court has acted upon..........j.1. in the basic year, the petitioners were recorded over the disputed land. the contesting opposite party suresh kumar had filed objection under section 9 of the u. p. consolidation of holdings act and had claimed 1/2 share in the disputed land on the basis of a compromise in suit no. 552 of 1956 as mentioned in the judgment of the consolidation officer. it appears that the claim of the contesting opposite party was resisted by the petitioner on the ground that the disputed land did not form part of the decree or it was not subject-matter of the partition suit of the year 1956. it was also asserted that the disputed land was gifted to the petitioners by lakshmi narayan (plaintiff of the suit of the year 1956). hence on the date of the compromise the aforesaid lakshmi narayan had.....
Judgment:
ORDER

K.P. Singh, J.

1. In the basic year, the petitioners were recorded over the disputed land. The contesting opposite party Suresh Kumar had filed objection under Section 9 of the U. P. Consolidation of Holdings Act and had claimed 1/2 share in the disputed land on the basis of a compromise in suit No. 552 of 1956 as mentioned in the judgment of the Consolidation Officer. It appears that the claim of the contesting opposite party was resisted by the petitioner on the ground that the disputed land did not form part of the decree or it was not subject-matter of the partition suit of the year 1956. It was also asserted that the disputed land was gifted to the petitioners by Lakshmi Narayan (plaintiff of the suit of the year 1956). Hence on the date of the compromise the aforesaid Lakshmi Narayan had no right and interest in the property, therefore, the compromise relied upon by the objector Suresh Kumar was not binding upon the petitioners.

2. The Consolidation Officer and the Settlement Officer of Consolidate have given judgments for the petitioners whereas the revisional court has recognised the claim of the contesting opposite party Suresh Kumar in the present writ petition. Aggrieved by the judgment of the revisional Court the petitioners have approached this Court under Article 226 of the Constitution.

3. The learned counsel for the petitioners has assailed the judgment of the revisional Court on the ground that the disputed land was not subject-matter of the partition suit of the year 1956, hence the claim of the contesting opposite party on the basis of the compromise decree in that suit was wrongly accepted by the revisional Court. According to the learned counsel for the petitioners the disputed plots were not mentioned in the partition suit. Only in the written statement the objector had asserted that the disputed plots were wrongly included in the partition suit in which the defendant had a share. Therefore, it has been urged on behalf of the petitioners that the plots mentioned in the written statement could not be treated as subject-matter of the partition suit because no court-fee was paid regarding the claim of share in the plots mentioned in the written statement.

4. Second contention raised on behalf of the petitioners is that the plaintiff Lakshmi Narayan of the partition suit had gifted the property during the pendency of that suit and on the date of the compromise, he had no interest in the present disputed plots, hence the compromise entered into by Lakshmi Narayan cannot bind the petitioners because they had acquired interest in the disputed plots at present due to the gift deed executed by Lakshmi Narayan in their favour.

5. The learned counsel for the contesting opposite party has tried to support the impugned judgment of the revisional court and has emphasized that the plots mentioned in the written statement as well as the plots mentioned in the plaint would be treated as subject matter of the partition suit. The compromise in the partition suit would bind the parties, therefore, the claim of the contesting opposite party regarding one half share in the disputed plot was correctly recognized by the revisional Court. He has drawn my attention to the rulings mentioned in : AIR1960Pat179 Ram Das Sah v. Jagarnath Prasad : AIR1953Pat178 , : AIR1951Pat299 Ramjanam Tewary v. Bindeshwari Bai and AIR 1944 Bom 239 (1) Govt. of Bombay v. Mohan Lal and he has emphasized that the contention of the learned counsel for the petitioners to the effect that the disputed plots were not subject matter of the partition suit should be repelled.

6. The learned counsel for the contesting opposite party has also submitted that the petitioners being transferee during lis pendens, hence they are bound by the compromise decree in the partition suit whereby the petitioners' claim to the extent of 1/2 share in the disputed land has been recognized. It has been asserted on behalf of the contesting opposite party that non-payment of court-fee regarding the disputed plots in the partition suit or non-registration of the compromise decree in the circumstances of this case would not stand in the way of the contesting opposite party getting 1/2 share in the disputed land. He has also stressed that the transferee during the pendency of a suit is bound by the ultimate decree in the suit. Viewed from this angle, the impugned judgment of the revisional court has done substantial justice between the parties and should not be interfered with in writ jurisdiction by this Court.

7. I have considered the contentions raised on behalf of the parties to the present writ petition. During the course of arguments, the learned counsel for the petitioners has placed reliance upon the rulings reported in AIR 1956 J & K 38 Ghulam v. Ghulam Ahmed, : AIR1955Pat320 Sarangdhar Singh v. Lakshmi Narayan Wahi : AIR1936Cal277 Jitendra Nath Ray v. Jahanda Kanta Das and : AIR1933Cal27 Ahmad Kasim Molla v. Khatun Bibi, and has contended that because the contesting opposite party had not paid requisite court fee regarding the plots mentioned in his written statement in the partition suit the compromise decree could not be of any help to the contesting opposite party. It has been emphasized that unless the court-fee had been paid, the facts mentioned in the written statement of the partition suit could not be termed as subject matter of the suit. None of the rulings cited by the learned counsel for the petitioners relates to partition of the property. They are based on the question of equitable set off, hence the aforesaid rulings are inapplicable to the facts and circumstances involved in the present case. For the sake of argument even if it is assumed that the compromise in the partition suit might suffer from any technical infirmity but the admission regarding the claim of the contesting opposite (party) in the compromise decree would be a good piece of evidence and if the revidional court has acted upon the compromise, I think there is enough material and evidence to support the claim of the contesting opposite party in the disputed plots forming subject-matter of the present litigation. No doubt, a suggestion has been made that in the compromise decree there is some interpolation regarding the disputed plots but it has neither been demonstrated nor proved to the satisfaction of this Court that any such interpolation exists. To me it appears that the suggestion has been made on behalf of the petitioners only for the sake of suggestion and it has not been seriously pressed or demonstrated. Therefore, on that score the claim of the contesting opposite party in the disputed plots cannot be doubted.

8. The learned counsel for the contesting opposite party has invited my attention to the rulings mentioned supra of the Patna High Court. In : AIR1960Pat179 Ram Das Sah v. Jagar Nath Prasad a Division Bench of that court has made the following observation vide para 2 : --

'The question whether a particular term of a compromise relates to the subject-matter of the suit is obviously a question to be answered on the frame of the particular suit, the relief claimed in the suit and the matters arising for decision on the pleadings of the parties. The term is comprehensive enough, and if the compromise relates to all the matters which fall to be decided in the case, it cannot be said that any part of the compromise is beyond the subject-matter of the suit.'

9. In the present case the contesting opposite party Suresh had raised a plea in the partition suit that the disputed plots in the present writ petition were not mentioned in the plaint of the partition suit and that he had claimed a share therein. In the compromise in that suit the claim of the contesting opposite party has been accepted by the plaintiff of that suit. In such a circumstance I feel that the disputed plots were subject matter of the partition suit and the admission of the plaintiff regarding the claim of the contesting opposite party Suresh Kumar in the present writ petition is a good piece of evidence. Since the revisional Court has recognized the claim of the contesting opposite party on the basis of the compromise in the partition suit, I think that substantial justice has been done between the parties and the impugned judgment does not call for any interference by this Court in the exercise of powers under Article 226 of the Constitution. The other cases cited by the learned counsel for the contesting opposite party need not be dealt with because they have been mentioned in the abovementioned ruling of the Patna High Court.

10. As regards the second contention on behalf of the petitioners, it is sufficient to note that the petitioners' grand-father Lakshmi Narayan had filed the partition suit in the year 1956. The contesting opposite party Suresh Kumar had filed written statement in that suit in the year 1957 and had indicated that the disputed plots were wrongly not mentioned in the partition suit, the gift deed in favour of the petitioners has been executed by their grand-father in the year 1958 regarding the disputed plots in the present writ petition. The aforesaid Lakshmi Narayan compromised the partition suit with a specific understanding that he and the opposite party Suresh Kumar had half share in the disputed plots. In such a circumstance I am unable to hold that the petitioners are not bound by the decree in the partition suit. In : AIR1928All3 Shyam Lal v. Solian Lal, a Division Bench of this Court has very succinctly indicated that a transferee pendente lite is bound by the decree just asmuch as he were a party to the suit. Such transferee puts himself in privity with the suit, and must be treated, not as a stranger to the suit, but as a party to it and consequently bound by the terms of the decree in full. A decree based upon a compromise is just asmuch binding as a decree founded upon a decision on merits. Therefore, I think that the petitioners are bound by the admission contained in the compromise made by their grand-father Lakshmi Narayan in the partition suit regarding the share of the contesting opposite party in the disputed plots in the present litigation. The petitioners have utterly tailed to demonstrate that the compromise decree contains any interpolation as suggested on their behalf. In my opinion the petitioners are bound by the admission of their grandfather Lakshmi Narayan in the compromise decree whereby the partition suit was decided.

11. In : AIR1933All649 Shyam Lal v. Shyamlal, a Full Bench of this Court has indicated as below, at page 651 Col. 1 :

'In cases where a part of the compromise does not strictly speaking relate to the suit and nevertheless the Court decides that it relates to the suit and incorporates it into the operative portion and passes a decree in terms of it, the decree is not a nullity and not one passed without jurisdiction, but would be binding upon the parties to the decree.......'

Later on, in column 2 at page 651 it has been observed as below :--

'Where a Court has jurisdiction to dealwith the property having regard to its nature,character and valuation, the mere fact that itwas not originally included in the plaint wouldnot oust the jurisdiction of the Court when itwas acting upon the agreement of theparties.'

(See Head Note).

12. Viewed from the above stand point it is evident that in the partition suit the present disputed plots were mentioned in the written statement and in the compromise decree there is specific admission of the share of the contesting opposite party in the disputed plots, hence the decree is binding upon the plaintiff and his successors and transferee during the pendency of the suit.

13. In view of the facts and discussions made above, the claim of the petitioners denying the share of the contesting opposite party in the disputed plots is wholly wrong, unfair and inequitable, hence in my opinion, the petitioners are not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution.

14. In the result, both the contentions raised on behalf of the petitioners fail and the writ petition being devoid of merits is hereby dismissed. There would be no order as to costs.


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