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Sita Ram Vs. Har Sahai - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All438; 71Ind.Cas.619
AppellantSita Ram
RespondentHar Sahai
Cases ReferredParbati v. Naunihal Singh
Excerpt:
partition proceedings - compromise effected pending proceedings--compromise given effect to by revenue court and acted upon by parties--registration act (xvi of 1908), section 17--compromise--registration--'house', meaning of. - .....coming to the question of construction of the compromise it certainly does deal with ail the houses residential or otherwise and would not, in the ordinary acceptance of the term 'house', exclude the materials and be confined to the site only. this objection also is untenable. the third objection is that the unstamped and unregistered compromise which was not made part of any order is inadmissible in evidence. this compromise has certainly been made part of the last order in mutation (see the order of the collector dated the 30th of april 1920). the finding of the lower appellate court is, that this compromise has been acted upon, the revenue court has given effect to it and the parties have been in possession of the divided property in accordance with the terms of that agreement......
Judgment:

Gokul Prasad, J.

1. This is a defendant's appeal arising out of a suit for an injunction restraining the defendant from demolishing a certain house and removing its materials and for Rs. 385 as damages due to the demolition of a part of the house and the removal of the materials thereof by the defendant. The plaintiff's case was that the parties were members of a joint Hindu family owning a certain number of villages and other properties, that in the year 1920 an application for partition of the Zemindary was made in the Revenue Court. That pending this application there was a private settlement by mutual consent and the village Chatkapur in which the property in dispute is situate came to the plaintiff with shares in certain other villages and the remaining properties were allotted to the defendant, that the compromise was brought to the notice of the Revenue Court by an application dated the 16th of April 1920 and by an order dated the 30th of April 1920 the Collector confirmed the partition made according to this compromise, that by virtue of this compromise the dwelling house of the other side and the other houses in the village came to the plaintiff's share and this partition was to take effect from the 1st of July 1920, the beginning of the next agricultural year. That the defendant dishonestly on the 30th of May 1920 commenced to demolish a part of the dwelling house, called the baithak, pulled down certain walls and removed a large quantity of bricks and this gave rise to the present suit. The defence pleaded was that the land only was partitioned under the compromise which did not refer to the house property in the villages and the Revenue Court could not partition them and that by this partition the plaintiff acquired no right in the buildings or the materials. It was further contended that the compromise, dated the 16th of April 1920, was neither stamped nor registered and was consequently inadmissible in evidence. The Trial Court came to the conclusion that the partition referred to the land only and the Revenue Court had no jurisdiction to divide buildings or materials. On other points also it came to a conclusion favourable to the defendant and dismissed the suit. On appeal the learned Judge of the lower Appellate Court has come to the conclusion that the compromise did not require either stamp or registration and decreed the claim of the plaintiff with Rs. 208-4-6 as damages. The defendant comes here in second appeal and his first plea is that the Courts below have not decided whether the building in dispute was a residential house or not, (2) that the construction of the compromise by the lower Appellate Court was a wrong one inasmuch as the same did not deal with the buildings and (3) that the unstamped and unregistered compromise was not admissible as evidence of the plaintiff's title, The learned Vakil for the appellant has not been quite able to explain to me how the question whether the house in dispute was residential house or not o fleets the ease. The compromise dealt with all the houses situated in the village Chatkapur mentioning the residential house first and the other houses afterwards, so that if that compromise is admissible in evidence the title in all the houses whether residential or not passed to the plaintiff. This ground of appeal, therefore, fails. Coming to the question of construction of the compromise it certainly does deal with ail the houses residential or otherwise and would not, in the ordinary acceptance of the term 'house', exclude the materials and be confined to the site only. This objection also is untenable. The third objection is that the unstamped and unregistered compromise which was not made part of any order is inadmissible in evidence. This compromise has certainly been made part of the last order in mutation (see the order of the Collector dated the 30th of April 1920). The finding of the lower Appellate Court is, that this compromise has been acted upon, the Revenue Court has given effect to it and the parties have been in possession of the divided property in accordance with the terms of that agreement. This compromise does not by itself create any title in the par-tics. It is only an information given to the Revenue Court of the compromise at which the parties had arrived out of Court. Under these circumstances the document was admissible in evidence, and the compromise having been acted upon the defendant cannot be allowed to resile from it. See the cases of Raghubans Mani Singh v. Mahabir Singh 2 A.L.J 564 : 28 A 78 : A.W.N. (1905) 195 and Baladeo Singh v. Udal Singh 58 Ind. Cas. 732 : 18 A.L.J. 877 : 2 U.P.L.R. (A) 202 : 43 A. 1. Even an oral agreement of partition acted upon by the parties and admitted by them had been held to be binding [see the case of Parbati v. Naunihal Singh 3 Ind. Cas. 195 : 6 A.L.J. 597 : 10 C.L.J. 121 : 13 C.W.N. 983 : 5 M.L.T. 427 : 11 Bom. L.R. 878 : 35 : A. 412 : 36 I.A. 71 : 19 M.L.J. 517 (P.C.). Under the circumstances of the case the judgment of the lower Appellate Court seems to be a correct one. I, therefore, dismiss this appeal with costs.


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