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1992 DIGILAW 353 (ALL)

Keshav v. Horil

1992-03-23

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, Member - This reference arises out of an order dated 17.2.82 passed by the ASDO Karvi District Banda in suit No. 10 u/Sec. 176/178/182 of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Keshav and Budha filed a suit u/Secs. 176/178/182 of the Act claiming share against Chunkai and Gaon Sabha. The preliminary decree was passed on 19.8.1970. On 12.11.1970, the plaintiffs applied for the preparation of the lots. On 7.10.1971, the plaintiffs and Chunkai defendant filed a compromise. The learned trial court accepted the compromise on 1.11.71 and decided the suit in terms of the compromise and ordered for the preparation of the final decree. But it directed the plaintiffs to file general stamps and the court fee so that the final decree could be prepared. On 28.4.1979, the plaintiffs filed the general stamps and court fee and the final decree was prepared. On 29.8.79 Horil, son of Chunkai made an application for setting aside the final decree on the ground of fraud etc. The learned trial court rejected this application on 17.3.1980. On 19.5.1980 Horil again made an application alleging that the above decree was null and void and requested for a fresh final decree for his share. The plaintiffs filed objection against this application on 26.8.1980 challenging the maintainability of the second application. The learned trial court found this second application maintainable. Aggrieved by this order, the plaintiffs Keshav and Budha filed a revision before the Divisional Commissioner. The learned Commissioner found the order of the learned trial court against law and has recommended through a reference to set aside the orders of the learned trial court. 3. I have heard the learned counsel for the parties. Sri R.V. Singh, learned counsel for the revisionist has contended that the compromise was validly and duly verified and the second application for setting aside the final decree was not maintainable. He cited 1978 R.D. 224, 1982 R.D. 188, 1981 R.D. 14 (SOC) and 1985 AWC 219 and urged to accept the reference. Sri R.R. Shivhare, learned counsel for the opposite parties has contended that the opposite party was entitled to share according to the preliminary decree. But in compromise, he got only 10 bighas whereas the revisionist got 36 bighas. He cited 1978 R.D. 224, 1982 R.D. 188, 1981 R.D. 14 (SOC) and 1985 AWC 219 and urged to accept the reference. Sri R.R. Shivhare, learned counsel for the opposite parties has contended that the opposite party was entitled to share according to the preliminary decree. But in compromise, he got only 10 bighas whereas the revisionist got 36 bighas. Relying on 1967 R.D. 325, the learned counsel has contended that where a material injustice has been caused, interference is called for. In reply, the learned counsel for the revisionist has submitted that as a matter of fact, the opposite party got 41 bighas vis-a-vis the revisionist who got only 36 bighas. 4. I have carefully considered the arguments advanced before me and have also perused the record. The issue involved in this case is whether the second application for setting aside the final decree was maintainable if the first application on the same ground was rejected by the trial court on 17.3.1980. It appears from the order dated 17.3.1980 passed by the learned trial court that the learned trial court had passed the said decree on the basis of a compromise which was duly verified and that no fraud was played upon the court'. After making this observation, the learned trial court committed manifest error in law and went beyond its jurisdiction in allowing the second application and setting aside the final decree. It simply based its findings on the rulings cited by it without enquiry and giving subsequent finding that the allegations of fraud were fully substantiated.' Where a suit is decreed in terms of compromise, the compromise decree, if the allegation of fraud is established, will be annulled: It only final decree is set aside, the suit stands decreed in terms of the compromise. It was, therefore imperative on the part of the defendant to get the compromise decree set aside and not the final decree. In the instant case, the learned trial court has given a specific finding that no fraud was played and that the decree was duly verified. The learned Additional Commissioner has found that Chunkai, father of Horil got 41.1. acres hand whereas the plaintiffs Keshav and Budha got 36.30 acres land. 5. I, therefore, agreeing with the learned Commissioner, accepted the reference, allow the revision petition and set aside the orders of the learned trial court dated 17.2.1982. The learned Additional Commissioner has found that Chunkai, father of Horil got 41.1. acres hand whereas the plaintiffs Keshav and Budha got 36.30 acres land. 5. I, therefore, agreeing with the learned Commissioner, accepted the reference, allow the revision petition and set aside the orders of the learned trial court dated 17.2.1982. Let the records be returned without delay.