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2001 DIGILAW 805 (PAT)

Raghu Nath Singh And Others v. Siabar Singh

2001-08-30

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This second appeal is directed against the judgment dated 8th April, 1987, passed by the 2nd Additional District Judge, Gopalganj, in Title Appeal No. 60 of 1983/6 of 1986. By the aforesaid judgment the appellate Court dismissed the appeal filed by the plaintiffs of the Title Suit No. 68 of 1971. The trial Court dismissed the suit of the plaintiffs. So the appellants lost in both the lower Courts and then they have filed this second appeal. 2. I find that in this second appeal, substantial question of law, formulated for decision was "Whether the compromise decree passed in Title Suit No. 82 of 1947 will bind the plaintiffs and Defendant Nos. 1 and 2 irrespective of the fact as to whether the acquisition of the property was not by a registered deed." 3. The relevant facts relating to the issue of law formulated by this Court are worth mentioning. The case of the plaintiff- appellants was that one Satya Narayan Singh was the common ancestor of the plaintiffs and Defendant Nos. 1 and 2. Satya Narayan Singh had two sons, namely, Chhabila Singh and Lakshmi Narayan Singh. Lakshmi Narayan Singh was married to one Saraswati Kuer, daughter of Udit Narayan Singh of village Hajiapurin the District of Gopalganj. Satya Narayan Singh who was of Tekari village of Gaya District purchased certain lands from Udit Narayan Singh orally. So there was a title suit among the descendants of Satya Narayan Singh (T.S. No. 82 of 1947) and in this title suit, the plaintiff-appellants and the Defendant Nos. 1 and 2 of the suit were the parties. There was a compromise on the basis of which the suit land fell to the share of plaintiff-appellants. However, Defendant No. 4 of the suit made a registered gift in favour of Defendant Nos. 1 and 2 regarding some portion of the suit land and subsequently other defendants of the suit purchased certain lands from Defendant No. 4 as also from Defendant Nos. 1 and 2. Purchasers wanted to disturb the possession of the plaintiff-appellants and so the instant suit under appeal was filed in which the plaintiff-appellants lost throughout. 4. 1 and 2 regarding some portion of the suit land and subsequently other defendants of the suit purchased certain lands from Defendant No. 4 as also from Defendant Nos. 1 and 2. Purchasers wanted to disturb the possession of the plaintiff-appellants and so the instant suit under appeal was filed in which the plaintiff-appellants lost throughout. 4. The trial Court went deep into the entire gamut of evidence, oral and documentary, and came to the conclusion that the plaintiff-appellants had failed to prove the oral sale by Udit Narayan Singh in favour of Satya Narayan Singh, the ancestor of the plaintiffs and Defendant Nos. 1 and 2. The trial Court also held that the suit lands were auction sold and they were purchased by one Triveni Singh. The claim of the plaintiff- appellants that they had paid the decreetal amount of the suit was not established by evidence. The auction sale took place once in the year 1932 and again in the year 1935 and in both the auction sales, Triveni Singh purchased the suit lands. So the story of oral sale in favour of Satya Narayan Singh was disbelieved by the trial Court. The trial Court further held that there were several dealings between Udit Narayan Singh and Triveni Singh and there was no proof of dealing regarding the suit land by the plaintiff-appellants. So the trial Court held that the suit land was neither purchased by Satya Narayan Singh nor the plaintiffs ever came in possession of the same because they failed to file any mutation in the name of Satya Narayan Singh or in the name of their ancestors. So there was no question of plaintiffs family or their ancestors acquiring any title over the suit land, even though the same being included in the compromise decree in Partition Suit No. 82 of 1947. So the compromise, if any, arrived at between the plaintiffs and the Defendants Nos. 1 and 2 was a collusive one. The compromise was never acted upon nor the plaintiffs ever came in possession over the suit land on the basis of this compromise. The trial Court discussed the oral evidence in this connection and held that the plaintiffs had failed to prove that they ever came in possession of the suit land on the basis of compromise. They have filed no receipt. The trial Court discussed the oral evidence in this connection and held that the plaintiffs had failed to prove that they ever came in possession of the suit land on the basis of compromise. They have filed no receipt. They were allowed to live in a portion of the house in view of the fact that they were relations of Defendant Nos. 1 and 2 and Choukidari receipts filed in this connection by the plaintiff-appellants did not specifically show that they were exclusively in possession of the suit land as a matter of right. So the trial Court held that they were in possession of a portion of suit house by way of permissive possession. The appellate Court confirmed the findings of the trial Court and it has taken special note of the fact that although a compromise petition was filed, compromise decree was not filed. So the appellate Court held that the plaintiffs had failed to prove that they were coming in possession of the suit land on the basis of compromise filed in the earlier partition suit. 5. Before me, it was submitted that the Defendant Nos. 1 and 2 were bound by the compromise and they were also estopped from challenging the same. However, in this connection, both the lower Courts held that neither Defendant No. 4 nor other defendants were bound by the compromise because they were not party to the same. Now, the question is whether the Defendant Nos. 1 and 2 were bound by the compromise and even if they were legally bound, it was the onus of the plaintiffs to prove that the compromise was, of course acted upon and they came in possession of the suit land by virtue of compromise. In this connection, the finding of fact recorded by both the lower Courts was also conclusive and from the same it transpired that the plaintiffs never came in possession of the suit land nor their ancestor Satya Narayan Singh had come in possession of the suit land by virtue of oral purchase. Moreover, if a particular piece of land is collusively or by dint of any adroitness or motive included in a compromise in a particular suit, that will not mean that a particular land was the land of the family and so it was part of the family partition by mutual arrangement. Moreover, if a particular piece of land is collusively or by dint of any adroitness or motive included in a compromise in a particular suit, that will not mean that a particular land was the land of the family and so it was part of the family partition by mutual arrangement. The real title holder shall never be bound by the compromise with respect to a piece of land which never belongs to a family. Since the plaintiffs have failed to prove that Satya Narayan Singh had purchased the suit land orally, the inclusion of the suit land in the compromise among the plaintiffs and Defendant Nos. 1 and 2 can be easily branded as collusive and no third party can be bound by the same. Besides the above, even Defendant Nos. 1 and 2 could not be bound by the aforesaid compromise, if they acquired title to the aforesaid land by virtue of any transfer from the real title holder, unless it is shown that the plaintiffs had come in possession of the land, included in the compromise, and they had perfected their title by the force of law. The two lower Courts have held on the basis of evidence that the concerned compromise was not at all acted upon and no evidence was adduced on behalf of plaintiffs to support their contention that the compromise was acted upon. Neither the oral evidence nor the documentary evidence adduced by the plaintiff-appetlants in this connection was considered to be sufficient and reliable by the two lower Courts. So the compromise in the earlier partition suit which was the basis of the plaintiffs title was never put to use to the advantage of the plaintiff-appellants nor the plaintiff-appellants could prove the same, as the two lower Courts have held. 6. The deed of gift created by Defendant No. 4 Pundeo Singh, son of late Phuli Singh, who derived title from Triveni Singh and who succeeded to his brother Triveni Singh, in favour of Defendant Nos. 1 and 2, has been referred to by the plaintiff-appellants in proof of the fact that earlier there was gift in favour of family of the plaintiffs and the Defendant Nos. 1 and 2 and so on the basis of this recital of deed of gift (Ext-E), it was submitted that this would refer to the oral purchase by Satya Narayan Singh. 1 and 2 and so on the basis of this recital of deed of gift (Ext-E), it was submitted that this would refer to the oral purchase by Satya Narayan Singh. However, all that the deed of gift contains in its recital is that Punyatieo Singh had earlier made an oral gift in favour of Defendant Nos. 1 and 2 and latter had constructed a house over the suit land and so the registered deed of gift was created to consolidate and confirm the earlier oral gift. The recital will, in no way, mean that there was oral gift or oral sale in favour of Satya Narayan Singh so far the suit land is concerned. The year or month or date of oral gift in favour of Defendant Nos. 1 and 2 was not mentioned in Ext-E and, therefore, it cannot be inferred that the Defendant Nos. 1 and 2 parted with the land gifted to them in Title Suit No. 82 of 1947. So the plaintiff- appellants could gain nothing from the aforesaid recital in this deed of gift (Ext-E). From the aforesaid discussion, it follows that the plaintiff appellants had come to this Court challenging almost the findings of fact arrived at by the two lower Courts in the garb of a substantial question of law which I have already answered above. 7. The rule of estoppel cannot operate against the law and in the instant case, unless it was proved that the suit land was the property of the family of defendant and the plaintiff-appellants, that could not form the subject-matter of partition between the co-shares (plaintiffs and Defendant Nos. 1 and 2) and in such a circumstance, if the party to the earlier suit (T.S. No. 82 of 1947) entered into a compromise, that compromise would, of course, be a collusive one and by this collusive compromise, neither of the parties could be held to be bound nor can they be estopped from resiling from the same. Moreover, a rule of estoppel binds a party by his statement or by his acts giving advantage to the other party. In the instant case, I find that the plaintiff-appellants had derived no advantage from the so-called compromise effected in the Title Suit No. 82 of 1947, as the two lower Courts have held on the basis of evidence on the record. In the instant case, I find that the plaintiff-appellants had derived no advantage from the so-called compromise effected in the Title Suit No. 82 of 1947, as the two lower Courts have held on the basis of evidence on the record. So there was no question of rule of estoppel operating against the Defendant Nos. 1 and 2 nor could they be debarred from acquiring title over the suit land from the rightful owner by the registered deed of gift. 8. As a result of the aforesaid discussion, I am to hold that this appeal is not sustainable. It is accordingly dismissed. There shall be no order as to costs.