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Ved Prakash Vs. Ram Kishan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1391 of 1966
Judge
Reported inAIR1974P& H297
ActsCode of Civil Procedure (CPC), 1908 - Order XXXII, Rule 7 and 7(1)
AppellantVed Prakash
RespondentRam Kishan and ors.
Cases ReferredKaushalya Devi v. Baijnath
Excerpt:
.....under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - these entries had a presumption of correctness which has been ignored on the basis of the unreliable testimony of a priest or panda and the..........the minor against whom the decree was being passed on the concession of his guardian-ad-litem. the present suit has been filed by the minor to avoid that compromise decree by which he has been deprived of the land in dispute. the effect of non-compliance with the provisions of order xxxii, rule 7(1) of the code has been discussed by the hon'ble judges of the supreme court in kaushalya devi v. baijnath, air 1961 sc 790. 4. the courts below have in the present case gone into the uncalled for inquiry as to how far the compromise was for the benefit of the appellant. their concurrent findings of fact on this point in favour of ram kishan defendant-respondent also proceed on a complete misreading of the entries in the records of right prepared by the revenue authorities. these entries had a.....
Judgment:

1. This second appeal by a minor plaintiff has been filed by his mother as the next friend under the following circumstances:--

2. The land in dispute had been sold by one Shrimati Sohna, widow of Khubi, by registered sale deed dated 23-5-1957 in favour of the minor appellant. Ram Kishan defendant-respondent had filed a suit to pre-empt that sale. He had shown the appellant's father as the guardian ad litem and had impleaded him as the defendant-vendee in that case. Ram Kishan had claimed a superior right to step in as vendee on the ground of his being a collateral of Khubi, the deceased husband of the vendor.

3. Under a compromise, the appellant's father suffered a decree to be passed against the minor defendant-vendee (namely the present appellant). The Court's permission was not taken as required by of Order XXXII of the Code of Civil Procedure. According to sub-rule (2) ibid, the compromise entered into without the leave of the Court is voidable against all parties other than the minor. The Court had not applied its mind in that pre-emption suit as to how far the compromise entered into on behalf of the appellant by his father was for or against the interests or benefit of the minor against whom the decree was being passed on the concession of his guardian-ad-litem. The present suit has been filed by the minor to avoid that compromise decree by which he has been deprived of the land in dispute. The effect of non-compliance with the provisions of Order XXXII, Rule 7(1) of the Code has been discussed by the Hon'ble Judges of the Supreme Court in Kaushalya Devi v. Baijnath, AIR 1961 SC 790.

4. The Courts below have in the present case gone into the uncalled for inquiry as to how far the compromise was for the benefit of the appellant. Their concurrent findings of fact on this point in favour of Ram Kishan defendant-respondent also proceed on a complete misreading of the entries in the records of right prepared by the Revenue Authorities. These entries had a presumption of correctness which has been ignored on the basis of the unreliable testimony of a Priest or Panda and the entries in his bahi. The revenue records show that Ram Kishan respondent and Khubi, the deceased husband of Shrimati Sohna vendor, had belonged to different gotras and that there could be no ties of blood between them. Reference could in this connection be made to copies of pedigree tables, Exhibits P.W. 3/1 and P.W. 3/2. These pedigree tables do not establish any link between Ram Kishan and Khubi. If these two persons had been the descendants of a near common ancestor, they would have the same gotra. It may, therefore, appear that Ram Kishan had no right to pre-empt the sale and that the appellant's father had suffered a pre-emption decree to be passed without taking the minor's benefit into consideration. The Court had also failed to apply its mind before certifying the compromise. The complete disregard of the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure may seem to entitle the appellant to have the pre-emption decree avoided in the present case.

5. The appeal is accordingly accepted and the plaintiff-appellant's suit is decreed. The compromise decree in the earlier preemption suit is set aside. Parties are left to bear their own costs throughout.

6. Appeal allowed.


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