Gajraj Singh v. Raghunandan Singh etc. — 1979 DIGILAW 225 (ALL)

JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree dated June 20, 1972 passed by the Additional Commissioner, Allahabad Division allowing appeal No. 24 of 1971 arising out of a suit under Sec. 229-B 176 of the UPZA and LR Act. 2. I have heard the learned counsel for the parties and have gone through the record. 3. Respondents Nos. 1 to 4, Raghunandan Singh, Ravi Mandal Singh, Yaduvansh Singh and Raghawendra Singh had filed a suit claiming to be co-Sirdars holding ?rd share in certain plots and seeking the division of the holding. Defendant-appellant, Gajraj Singh contested the suit by claiming to be the sole Sirdar. The Trial court dismissed the suit. In the lower appellate court Gajraj Singh gave a statement that if Ravinandan Singh would state on oath after taking 'Gangajali' that the land in suit is not the sole Sirdari of Gajraj Singh, then ?rd share in the land may be given to Ravi Nandan Singh, Ravi Nandan Singh stated that he was willing to take the oath. Thereafter on June 20, 1972 Ravi Nandan Singh took an oath with Gangajal that the land had been acquired by the common ancestor Prasidh Narain Singh and was not the sole acquisition of Gajraj Singh. The lower appellate court has decided the appeal on the basis of this special oath. 4. The main contention of the learned counsel for the appellant Gajraj Singh is that the lower appellate court had no jurisdiction to decide the case on the basis of this special oath, as the Indian Oaths Act of 1873 in which the provision of special oath was made had been repealed by Sec. 9 of the Oaths Act, 1969. It is indeed true that the provision of special oath made in the Indian Oaths Act had been repealed by Sec. 9 of Oaths Act, 1969. 5. The learned counsel for the respondents has, however, contended that the decision of the lower appellate court is covered by Order XXIII, Rule 3 of the Code of Civil Procedure inasmuch as the agreement between the parties amounted to the adjustment of the suit by a compromise. To support his view, the learned counsel has referred to Smt. Akbari v. Rahmat Husain AIR 1933 Allahabad 861 in which Sulaiman, C.J. Mukherji and King, JJ. To support his view, the learned counsel has referred to Smt. Akbari v. Rahmat Husain AIR 1933 Allahabad 861 in which Sulaiman, C.J. Mukherji and King, JJ. have discussed at length the question; 'Can the parties to a suit agree, apart from the Indian Oaths Act, that they will abide by the statement of a witness, including one who is a party to the suit and can they leave the decision of all points including costs arising in the case to be according to his statement ?" and have after discussing a number of decisions provided the answer as follows : "My answer to the first question referred to us is that the parties to a suit can validly agree, even apart from the Indian Oaths Act, that they will abide by statement of a witness, including one who is a party to the suit and that they can leave the decision of all points including cost arising in the case to be made according to the statement." 6. The second decision cited is Kedar Nath v. Badri Prasad AIR 1972 Allahabad 453 in which a learned Bench of the Allahabad High Court has held that a decree passed a suit decided on special oath administered in pursuance of an agreement thereto between the parties is a consent decree and as such is not appealable as provided in Sec. 96(3) of the CPC. 7. Thus, the legal position is quite clear that the partied having agreed among themselves to abide by the statement given on special oath, the decree passed on that basis is in accordance with law. In the circumstances of the case the lower appellate court was not required to discuss the evidence on record and to record findings on various questions. 8. Another ground taken in the appeal is that the transfer of Sirdari rights is illegal and invalid, and that the respondent No. 1 having no right in the land in dispute, could not be conferred a right of co-tenancy in the Sirdari holding by the appellant. As such even if the alleged offer and acceptance be deemed to be an agreement between the parties, it was still illegal and against the provisions of law and cannot be given effect to. This contention cannot be accepted. It is true that Sirdari rights were not transferable in law. As such even if the alleged offer and acceptance be deemed to be an agreement between the parties, it was still illegal and against the provisions of law and cannot be given effect to. This contention cannot be accepted. It is true that Sirdari rights were not transferable in law. But the present case is not the one of transfer of Sirdari rights at all. The plaintiff-respondent, Ravi Nandan Singh had claimed co-tenancy not on the basis of any transfer in their favour but on the basis that the land had been acquired by the common ancestor Prasidh Narain Singh and that both parties were the descendants of this common ancestor and the holding had come down intact from the time of the common ancestor. This question had already been discussed in M. Sahab Din v. Pherai 1976 RD 367 in which this court had held that where compromise deed constitutes a family settlement relating to joint inheritance, it does not amount to transfer of Sirdari holding and cannot be held to be prohibited under the law. 9. The learned counsel for the appellant has also challenged the mode of special oath, and has said that the appellant had suggested his own way of special oath but that was not permitted by the Court and in the said circumstances the offer of the appellant stood repealed. I do not find this to be the case. The statement of the appellant Gajraj Singh suggesting the mode of the oath is on the record and is quite clear. It was to the effect that Ravi Nandan Singh should take 'Gangajali' and state on oath in the court. This was exactly the mode of oath allowed by the Court and there is no discrepancy. Thus, it cannot be said that the offer of the appellant stood repealed. 10. The appellant's counsel has also raised a question of the identity of the holding. However, in view of the agreement reached between the parties in the lower appellate court about the decision by oath, this question of identity of the holding cannot now be taken in the second appeal. 11. I find no force in this second appeal and hereby dismiss it.