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2010 DIGILAW 116 (PAT)

Gouri Shankar Pathak v. Dr. Shankarnand Upadhyay

2010-02-01

S.N.HUSSAIN

body2010
JUDGEMENT 1. Heard learned counsel for the petitioners as well as learned counsel for opposite parties. 2. This civil revision has been filed by the applicants-petitioners challenging order dated 16.07.2008 by which the learned Subordinate Judge i, dismissed Miscellaneous Case no. 3 of 1998 which was filed by the petitioners challenging the compromise decree dated 13.09.1996 passed by the said court in Partition Suit no. 269 of 1996. 3. The said suit was filed by opposite party no.1 Dr. Shankaranand Upadhyay against Chunchun Pathak (father of the petitioners) and opposite party nos. 2,3 and 4 for partition of the assets of the firm M/ s Hindustan Multi Engineering Corporation, Gosaitola , Patna as per share given in the partnership deed and for other ancillary reliefs with respect to the said property fully detailed in paragraphs 2 to 4 of the plaint. 4. It transpires that all the aforesaid defendants including defendant no.1 Chunchun Pathak appeared in the said suit and along with the plaintiff filed a joint compromise petition dated 24.08.1986 (Annexure 13 to the second supplementary affidavit and annexure 4 of the counter affidavit of opposite parties), according to the terms of which the entire properties and business were given to the opposite parties, whereas Chunchun Pathak was to be a formal partner of the firm and the residential house in which he was living was given to him only for his life time where after it was to devolve upon defendant no.2 (Opposite party no.2). The said petition for compromise was allowed and Title Suit ho. 269 of 1996 was decreed on compromise vide judgment and decree dated 13.09.1996 making the compromise petition part of the decree. 5. It is not in dispute that on 15.01.1998 defendant no.1 of the said suit Chunchun Pathak died and within three months thereafter all his three sons (petitioners) filed Miscellaneous Case no. 3 of 1998(annexure 6 to the petitioners supplementary affidavit) for recall of the said judgment dated 13.09.1996 by which the compromise vide petition dated 24.08.1996 was recorded and to set aside the said compromise decree by declaring it to be unlawful, forged, fabricated and brought into existence by playing fraud both upon the court and upon late Chunchun Pathak. In the said miscellaneous case all the opposite parties, who were plaintiff and defendant nos. 2 to 4 in Title Suit no. In the said miscellaneous case all the opposite parties, who were plaintiff and defendant nos. 2 to 4 in Title Suit no. 269 of 1996, appeared and contested, claiming that the compromise was legal and valid, that Chunchun Pathak had already received about eight lacs of rupees from them, which he had admitted in the earlier agreement between the parties dated 25.07.1986 and that the sons of Chunchun Pathak were ill-treating him due to which had filed several cases and petitions against them from 1995 to 1997 (Exhibits C and G). 6. Two documentary evidence were produced in the miscellaneous case by the petitioners, namely, exhibit 1 (certified copy of petition dated 03.04.2003 filed in P.T. 16/2000) and exhibit 2 (certified copy of order sheet of Execution case no. 14 of 1993). Apart from documentary evidence, two witnesses deposed on behalf of the petitioners as AW1 and AW2 who were petitioners nos.1 and 2 supporting their pleadings. 7. On the other hand, several documents were produced by opposite parties, namely, Certified copy of petition dated 24.04.1997 filed in Patliputra P.S. Case no. 89 of 1996 (Exhibit A); Vakalatnama of Chunchun Pathak filed in Title Suit no. 269 of 1996 (Exhibit B); Informatory petition filed in 953 M of 1997 (Exhibit C); Compromise petition filed in Title Suit no. 269 of 1996(Exhibit D); Supplementary partnership deed dated 03.04.1993 (Exhibit E); Deposition of Indrani Mishra, sister of the petitioners (Exhibit F); Certified copy of order sheet dated 15.01.1996 of SDM , Sadar , Patna (Exhibit G); Letter of South Indian Bank dated 04.07.1996 (Exhibit H); Photo copy of letter no. 3467 dated 16.10.1996 issued from the office of Bihar State Hydro- Electric Power Corporation Limited, Patna (Exhibit I); Purchase order no. PTC/ Tech 650/95-13197 dated. 17.10.1997 (Exhibit J); Certified coy of the sale deed dated 23.07.1958 bearing no. 5975 of 1958 (Exhibit K); Registration slips (Exhibits L and L/3); Certified copy of order dated 03.07.1996 to 02.12.1997 in the suit (Exhibit M); Certified copy or order dated 27.09.1996 in Complaint Case no. 580(C)/ 1996 (Exhibit N); Certified copy of order dated 13.01.1999 and 12.04.1999 passed in Execution Case no. 14 of 1993 (Exhibit O); Certified copy of deposition of Prem Shankar Pathak in GR 2563 of 1996 (Exhibit P); Certified copy of order sheet of Title Suit no. 53 of 1997 (Exhibit Q); Certified copy of order sheet of Mutation Case no. 580(C)/ 1996 (Exhibit N); Certified copy of order dated 13.01.1999 and 12.04.1999 passed in Execution Case no. 14 of 1993 (Exhibit O); Certified copy of deposition of Prem Shankar Pathak in GR 2563 of 1996 (Exhibit P); Certified copy of order sheet of Title Suit no. 53 of 1997 (Exhibit Q); Certified copy of order sheet of Mutation Case no. 11/2005-06 (Exhibit R); Certified copy of order sheet of Execution Case no. 14 of 1993 (Exhibit S); Certified copy of order dated 14.04.1997 passed in Patliputra P.S. Case no. 89 of 1996 (Exhibit A/1); and Certified copy of order of the Chief Judicial Magistrate, Patna in Case no. 953M /1997 (Exhibit C/1). In addition to the said documentary evidence six witnesses deposed on behalf of the opposite parties, out of whom OPW nos. 5 and 6 were formal witnesses whereas OPW no.4 was opposite party no.1 himself and OPW nos. 1, 2 and 3 supported the claim of the opposite parties. 8. The learned court below, after hearing the parties and considering the materials on record, came to the conclusion that defendant no.1 of the suit, namely, Chunchun Pathak (father of the petitioners) was fully acquainted with the pendency of Partition Suit no. 269 of 1996 which was disposed of on account of joint compromise petition dated 24.08.1996 which was affidavited by him also. Accordingly, the learned lower court dismissed Miscellaneous Case no. 3 of 1998 on contest vide his impugned judgment dated 16.07.2008. The said judgment of the trial court has been challenged by the applicants-petitioners, namely, sons of the deceased Chunchun Pathak, in the instant civil revision. 9. After hearing the parties and considering the materials on record, it is quite apparent that admittedly the property in question was seif-aequired property of Chunchun Pathak and he started a firm nameiy, M/s Hindustan Multi Engineering Corporation in the year 1956 at Fraser Road, Patna and later on shifted the said factory over three kathas of his land in plot no. 1838 of Gosain Tola, whereas upon nine kathas of the said plot residential houses were constructed and remaining 1.48 acres of the said plot was let out to different persons. 1838 of Gosain Tola, whereas upon nine kathas of the said plot residential houses were constructed and remaining 1.48 acres of the said plot was let out to different persons. It is also not in dispute that wife of Chunchun Pathak, namely, Savitri Devi died in the year 1996 whereas Chunchun Pathak himself died on 24.10.1997 leaving behind three sons and two daughters namely, the petitioners and Indrani Mishra and Lila Devi. It is also admitted that the said Chunchun Pathak had gifted thirteen and half decimal of the said plot to his son namely Sheo Shankar Pathak (Petitioner no.2) for construction of house by registered deed dated 14.03.1974. 10. From the arguments raised on behalf of the parties as well as the evidence adduced by the parties, it is not in dispute that Chunchun Pathak (original defendant no.1) had appeared in P.S. No. 269 of 1996 and had signed compromise petition dated 24.08.1996 which was jointly filed by all the parties to the suit which was decreed on compromise on 13.09.1996, but till his death on 24.10.1997 did not raise any objection to the compromise decree in the partition suit prepared on the basis of the said compromise petition although he was fully aware of it. 11. Furthermore, only in the year 1998 the petitioners filed Miscellaneous Case No.03 of 1998 after the death of their father challenging the aforesaid compromise decree dated 13.09.1996 although when their father Chunchun Pthak, who was exclusive owner of the suit property, had entered into a compromise with opposite parries with respect thereto as per his own free will and had never raised any objection against it, the petitioner were not entitled to the reliefs claimed by them. 12. Considering the aforesaid facts and circumstances of the case, this court does not find any illegality in the impugned order of the learned court below nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed.