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Bharath Chaube and ors. Vs. Gaya Chaube and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All303; 29Ind.Cas.418
AppellantBharath Chaube and ors.
RespondentGaya Chaube and ors.
Cases ReferredMahomed Musa v. Aghore Kumar Ganguli
Excerpt:
evidence - compromise in execution court--registration, if necessary--compromise, whether admissible in evidence. - - moreover, we are of opinion that, on the facts of this particular case, the question of the manner in which the joint decree-holders were entitled to enjoy the fruits of their decree was so intimately connected with the question of the satisfaction or extinction of the charges which the two sets of decree-holders severally held on the property, the subject-matter of the decree, that the one question could not be dealt with without the other. for these reasons we are of opinion that this appeal must fail, and we dismiss it accordingly with costs, including in this court fees on the higher scale......the court executing the pre-emption decree. that petition was to the effect that possession over a share of 2 annas 8 pies should be given to one set of plaintiffs (the respondents now before us), and over a share of 2 annas to the other set of plaintiffs, the appellants now before us. it was further provided that the payment of rs. 1,169 should be treated as having been made on behalf of all the decree-holders, pre-emptors, and that the holders of the premium lease should give up their rights under the same. the order passed on this petition was that the parties should be considered bound by it and the decree executed accordingly. unfortunately at a later stage the court executing the pre-emption decree seems to have felt some difficulty about duly carrying out its own order. it had.....
Judgment:

1. This is a defendant's appeal in a suit for possession which arose out of certain previous litigation. There was a zemindari share of a 4 anna 8 pies belonging to one Harnam Singh. There were two incumbrances on this share, one was a mortgage of Rs. 931 in favour of the plaintiffs-respondents now before us. The other was a charge of Rs. 1,200 due on account of a premium lease in favour of the present defendants-appellants. Harnam Singh sold this share, and a suit for pre-emption was brought in which both parties to the appeal now before us appeared as joint plaintiffs. The result was that their right of pre-emption was decreed and it was held that a sum of Rs. 3,300 represented the sale price, apart from incumbrances. The Court, therefore, passed a decree for preemption of the entire share, jointly in favour of all the plaintiffs then before it, on payment of Rs. 1,169. In view of the fact that the incumbrances on the property were unequal in amount and different in nature, the preemption decree as passed was calculated to lead to difficulties in the execution department, apd it is clear that it did so. One set of plaintiffs, who are the plaintiffs-respondents now before us, paid into Court the entire sum of Rs. 1,169 and asked for possession. Objections were raised by the other set of plaintiffs, the defendants-appellants now before us, and eventually a petition of compromise was presented to the Court executing the pre-emption decree. That petition was to the effect that possession over a share of 2 annas 8 pies should be given to one set of plaintiffs (the respondents now before us), and over a share of 2 annas to the other set of plaintiffs, the appellants now before us. It was further provided that the payment of Rs. 1,169 should be treated as having been made on behalf of all the decree-holders, pre-emptors, and that the holders of the premium lease should give up their rights under the same. The order passed on this petition was that the parties should be considered bound by it and the decree executed accordingly. Unfortunately at a later stage the Court executing the pre-emption decree seems to have felt some difficulty about duly carrying out its own order. It had directed possession over a share of 2 annas 8 pies to be given to one set of plaintiffs, the present respondents. An objection was put in by the other set of plaintiffs (the present appellants) to the effect that, though proprietary possession might be given, the executing Court was not entitled to eject them from their possession as lessees. On this the Court said that all it was concerned with in executing the decree was to give proprietary possession to the parties in accordance with the terms of the compromise, and it passed orders accordingly. The present suit as brought by the plaintiffs-respondents was to recover possession of a share of 2 annas 8 pies. As it happened, the lease in favour of the opposite party covered a share of 4 annas 3 pies only, and it has been finally decided by the Courts below that the present plaintiffs are, as a matter of fact, in actual possession of a share of 5 pies and had no need to sue in respect of the same. The question, however, remains as to the claim of the plaintiffs to obtain actual possession over the share of 2 annas 3 pies, in respect of which the defendants-appellants are asserting their rights to continue in possession under the terms of their lease. The case went to trial in the Courts below on a number of issues all of which have been decided in favour of the plaintiffs. An important question of fact was whether the sum of Rs. 1,169 paid into Court by the present respondents actually came out of their pockets, or whether some portion of the same was contributed by the defendants-appellants. This point has been found in favour of the plaintiffs on the evidence, and if the finding is correct, there is certainly no equity in favour of the defendants-appellants. The one contention on behalf of the latter which we have to consider is as to the admissibilty in evidence of the compromise filed iif the execution Court. Undoubtedly that compromise has been admitted in evidence by the Courts below and has been made the basis of many of their findings. It has been contended before us that, if this document were ruled out as inadmissible, even the finding with regard to the payment of Rs. 1,169, though proceeding on the face of it upon other evidence, would require to be reconsidered. We have been referred to a great deal of case-law on the subject, which we do not propose to discuss in detail. The position of the parties before the execution Court was that of joint holders of a decree, which on the face of it merely entitled them to recover possession of a certain zemindari property on payment of a certain sum. The decree, as it stood with reference to the litigation out of which it arose, was an imperfect decree, and apart from the compromise entered into by the parties it is quite possible that the decree could not have been executed without an applicatipn to the Court which passed it to amend it or to bring it into conformity with the judgment. The joint decre e holders were undoubtedly entitled to enter into a compromise amongst themselves as to the manner in which that decree should be executed, and their petition of compromise presented to the execution Court did not as such require registration. It was a petition to a competent Court and in so far as it was submitted to and was acted upon judicially, it was undoubtedly binding upon the parties, vide Bindesri Naik v. Ganga Saran Sahu 20 A. 171 : 25 I.A. 9 : 2 C.W.N. 129. The petition was so far acted upon that proprietary possession was given to the two sets of decree-holders in accordance with its terms. To this extent, at any rate, the document was admissible in evidence, and if it was admissible in evidence, it was not possible for the Courts to take into consideration one part of it and exclude another part. Moreover, we are of opinion that, on the facts of this particular case, the question of the manner in which the joint decree-holders were entitled to enjoy the fruits of their decree was so intimately connected with the question of the satisfaction or extinction of the charges which the two sets of decree-holders severally held on the property, the subject-matter of the decree, that the one question could not be dealt with without the other. We are, therefore, of opinion that this petition of compromise, although unregistered, was admissible in evidence and binding upon the parlies, by reason of the order to that effect whiqh was passed upon it by the Court executing the decree. In principle the case is closely analogous to a case decided by their Lordships of the Privy Council, Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas 930 : 13 A.L.J. 229 : 17 Bom. L.R. 420 : 21 C.L.J. 231 : 28 M.L.J. 548 : 19 C.W.N. 250 : 17 M.L.T. 143 : 2 L.W. 258 and on principles of equity we have no doubt that these defendants-appellants ought to be held bound by the terms of the compromise, of which they have already taken advantage by obtaining proprietary possession over a share of 2 annas in respect of which they paid no money into Court. For these reasons we are of opinion that this appeal must fail, and we dismiss it accordingly with costs, including in this Court fees on the higher scale.


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