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2018 DIGILAW 133 (JHR)

Suraj Banshi Kunwar v. Shiv Pati Kunwar

2018-01-16

APARESH KUMAR SINGH, B.B.MANGALMURTI

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JUDGMENT : B.B. Mangalmurti, J. 1. The instant Letters Patent Appeals has been preferred against the judgment and decree dated 27.07.1999 passed in First Appeal No. 142 of 1974. 2. The short fact as enumerated is that the plaintiff filed Partition Suit No. 1 of 1964 against the defendants/appellants, which was dismissed for default on 30.01.1969 before the court of Subordinate Judge, Palamau at Daltonganj. It was stated that Sheonandan Pandey died in the year 1948 leaving behind his widow, Kismati Kuer and two grandsons of his pre-deceased son namely, Bhuneshwar Pandey and Dukhbanjan Pandey and his daughter-in-law Rajmati Kuer, widow of his pre-deceased son Ayodhya Pandey. Widow Rajmati Kuer died in the year 1985 during pendency of the suit but Sheonandan pandey, his son and grandsons which were constituting joint family before the death of Ayodhya Pandey claimed to have half share while Ayodhya Pandey would have got 1/6th share. The further case is that 1/6th share of Ayodhya Pandey devolved upon the plaintiff under Section 3(2) of the Hindu Womens Right to Property Act as the plaintiff became absolute owner after the Hindu Succession Act. Sheonandan Pandey died in the year 1948 and his half share devolved upon his widow Kismati Kuer. Bhuneshwar Pandey son of Sheonandan Pandey died in the year 1951 leaving behind two widows Saraswati Kuer and Surajbanshi Kuer and one daughter Sharda Devi. After death of Kismati Kuer in 1957 her share devolved on Dukhbhanjan Pandey. Thus, the share of defendant No. 1 in the property in suit came to half plus 1/6th share i.e. 2/3rd share. Further, on the death of Saraswati Kuer in the year 1961, her interest to the extent of 1/12th share devolved upon her daughter Sharda Devi. The plaintiff thus claimed 1/6th share in the suit property stating that the family was still joint. 3. The suit was contested by defendant Nos. 2 and 3 i.e. widow and daughter of Bhuneshwar Pandey respectively. The case of the defendant is that plaintiff had no locus standi to institute the suit and as such, the same was not maintainable. The year of death of Ayodhya Pandey was wrongly mentioned as he died in the year 1936 and not in the year 1938 therefore, plaintiff did not derive any advantage either under Hindu Women's Right to Property Act, 1937 or under the provisions of Hindu Succession Act, 1956. The year of death of Ayodhya Pandey was wrongly mentioned as he died in the year 1936 and not in the year 1938 therefore, plaintiff did not derive any advantage either under Hindu Women's Right to Property Act, 1937 or under the provisions of Hindu Succession Act, 1956. Further claim was made that Sheonandan Pandey had ancestral property in his hand and he formed a joint Hindu family of his sons and grandsons. Ayodhya Pandey died in the year 1936 in state of jointness leaving behind his two sons Bhuneshwar Pandey and Dukhbhanjan Pandey being defendant Nos. 1 and 2. Since Ayodhya pandey died in the year 1936, his widow, the plaintiff did not inherit any share and after the death of Ayodhya Pandey the joint family consisted of Sheonandan Pandey, Bhneshwar Pandey and Dukhbhanjan Pandey who held 16 Annas interest as the family governed by Mitakshra School of Law. The claim of the plaintiff about 1/6th share of the property were denied as Sheonandan Pandey died in the year 1948 and after his death his half share and interest in the joint family property devolved on his widow Kismati Kuer and she remained in possession of half share even in the joint family property. She never claimed any partition and the joint interest were never separated. After her death in 1957, her half interest in the family property passed on to the defendants. Therefore, it was denied that the plaintiff has got any share much less 1/6th share and on these grounds suit was liable to be dismissed. Defendant No. 1 who was the plaintiff's son, had supported her. 4. This partition suit was dismissed for default on 30.01.1969. Thereafter, on 22.02.1969 a miscellaneous case was filed for restoration which was numbered as Misc. Case No. 13 of 1969, this was also dismissed for default on 02.05.1970. The further case is that on 16.05.1970 a subsequent Misc. Case No. 67 of 1970 was filed for restoration of Misc. Case No. 13 of 1969 which was also dismissed for default on 22.07.1971. A third miscellaneous case being Misc. Case No. 61 of 1971 was filed for restoration of Misc. Case No. 67 of 1970. In the meantime, on 23.07.1971 a compromise petition was filed. Three separate petitions for restoration of Misc. Case No. 67 of 1970, Misc. Case No. 13 of 1969 which was also dismissed for default on 22.07.1971. A third miscellaneous case being Misc. Case No. 61 of 1971 was filed for restoration of Misc. Case No. 67 of 1970. In the meantime, on 23.07.1971 a compromise petition was filed. Three separate petitions for restoration of Misc. Case No. 67 of 1970, Misc. Case No. 13 of 1969 and Partition Suit No. 1 of 1964 were also filed. Thereafter, Misc. Case No. 67 of 1970 was restored on 02.09.1971. Misc. Case No. 13 of 1969 was also restored on 06.09.1971 and the Partition Suit No. 1 of 1964 was restored on 09.09.1971. After restoration of partition suit, the compromise petition was taken up for hearing on 11.09.1971 and thereafter the compromise petition was accepted by the court and the suit was decreed in terms of the compromise application forming part of decree. 5. The defendant Nos.2 and 3/appellants herein filed a petition on 16.12.1971 challenging the said compromise but the said petition was rejected on 27.02.1972 on the ground that the same was not moved. 6. Thereafter another petition was filed on 13.07.1973 by the defendant Nos. 2 and 3 to restore the said petition dated 16.12.1971. Through another petition the defendants/appellants prayed for stay of further proceeding of the suit including the preparation of final decree. Both the petitions were rejected on 29.03.1973 on the ground that the same were time barred and proper court fee was also not paid. On 31.03.1973 a petition under Order XLVII read with Section 151 of the Code of Civil Procedure was filed by the defendant Nos. 2 and 3/appellants which was registered as Misc. Case No. 23 of 1973. On 04.04.1973 a petition for stay of preparation of final decree was also filed in the said miscellaneous case but the same was also rejected. However, the proceeding of the partition suit No. 1 of 1964 was stayed but the same was subsequently vacated on 21.05.1973. The trial court thereafter passed order on 01.12.1973 for preparation of final decree in Partition Suit No. 1 of 1964 and accordingly the decree was prepared on 11.12.1973 which was signed on 15.12.1973. 7. However, the proceeding of the partition suit No. 1 of 1964 was stayed but the same was subsequently vacated on 21.05.1973. The trial court thereafter passed order on 01.12.1973 for preparation of final decree in Partition Suit No. 1 of 1964 and accordingly the decree was prepared on 11.12.1973 which was signed on 15.12.1973. 7. The further case is that against the final decree dated 11.12.1973 in Partition Suit No. 1 of 1964, First Appeal No. 142 of 1974 was filed before the High Court which was dismissed vide judgment and decree dated 27.07.1999. Being aggrieved by the said judgment and decree dated 27.07.1999 passed in First Appeal No. 142 of 1974 instant appeal has been filed. 8. Learned counsel for the appellants submitted that the learned Single Judge has erred in holding that the decree prepared on the strength of compromise was a composite preliminary decree as well as final decree. Learned Single Judge has failed to consider that a compromise petition filed in miscellaneous case for restoration of the suit cannot be treated to be a compromise petition in the suit itself by which the determination of the share and title of parties were to be established. The share sought to be allotted through the compromise was against the law and the whole plaint was sought to be admitted by a compromise which was under contest for several years of litigation. By this compromise only half share each is sought to be given to defendant Nos. 2 and 3 although they were entitled to 1/3rd and now they are entitled to the half of the share. The trial court has accepted an illegal compromise which was not even filed in the suit which was against the basic principles of law and natural justice. They have failed to consider that the signature of the defendant Nos. 2 and 3/appellants were taken on the blank paper which was used fraudulently for preparation of the compromise petition and the learned Single Judge could have directed for an enquiry or could have set aside the decree holding the same based on fraudulent compromise petition. No evidences were adduced by the parties but the learned Single Judge held that there was no occasion for putting the LTI and signature on the blank paper at the instance of other side with whom litigation was going on. No evidences were adduced by the parties but the learned Single Judge held that there was no occasion for putting the LTI and signature on the blank paper at the instance of other side with whom litigation was going on. Learned Single Judge also erred in holding that when the fraud was discovered the same was instantaneously objected to by the appellants by taking legal steps prescribed in law. Learned counsel for the appellants relied upon a judgment of the Hon'ble Supreme Court passed in the case of Kishun @ Ram Kishun (dead) through LRs. vs. Behari (dead) by LRs. (2005) 6 SCC 300 where there was a contest on the existence of a compromise, a decree accepting the compromise on resolution of that dispute, held, was not a consent decree and hence it did not attract the bar under Section 96(3) of the Civil Procedure Code. In Kishun @ Ram Kishun (dead) through LRs. Hon'ble Supreme Court in paragraph-7 held as under:- "7. We are of the view that the High Court was in error in holding that the appeal filed by Kishun against the decree of the trial court accepting a compromise which was disputed by him, was not maintainable. When on a dispute in that behalf being raised, an enquiry is made (now it has to be done in view of the proviso to Order 23 Rule 3 of the Code added by Act 104 of 1976) and the suit is decreed on the basis of a compromise based on that enquiry, it could not be held to be a decree passed on consent within the meaning of Section 96(3) of the Code. Section 96(3) contemplates non-appealability of a decree passed by the court with the consent of parties. Obviously, when one of the parties sets up a compromise and the other disputes it and the court is forced to adjudicate on whether there was a compromise or not and to pass a decree, it could not be understood as a decree passed by the court with the consent of the parties. As we have noticed earlier, no appeal is provided after 1-2-1977, against an order rejecting or accepting a compromise after an enquiry under the proviso to Order 23 Rule 3, either by Section 104 or by Order 43 Rule 1 of the Code. As we have noticed earlier, no appeal is provided after 1-2-1977, against an order rejecting or accepting a compromise after an enquiry under the proviso to Order 23 Rule 3, either by Section 104 or by Order 43 Rule 1 of the Code. Only when the acceptance of the compromise receives the imprimatur of the court and it becomes a decree, or the court proceeds to pass a decree on merits rejecting the compromise set up, it becomes appealable, unless of course, the appeal is barred by Section 96(3) of the Code. We have already indicated that when there is a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96(3) of the Code could not have application. An appeal and a second appeal with its limitations would be available to the party feeling aggrieved by the decree based on such a disputed compromise or on a rejection of the compromise set up." 9. Learned Senior counsel appearing on behalf of respondent submitted in support of the judgment passed by the learned Single Judge that when the seal of the court is put on a compromise decree, it is binding upon the parties and they cannot be deprived from enjoying the fruits of the decree. He also submitted that the first appellate court has rightly held that as per the provisions of Code of Civil Procedure, applicable at that time, the appropriate remedy for the appellants was to prefer appeal under Order XLIII Rule 1(M) of the Code but no such appeal was filed, rather they went on filing various petition in the suit itself in respect of said order by way of review and ultimately after final decree was passed, they preferred the present appeal. He then submitted that the court rightly held that where final allotment by compromise was made and the parties already came in physical possession of the shares allotted to them and thereupon a compromise decree is passed, nothing remains pending to be dealt with in the final decree. He relied upon a decision of Hon'ble Supreme Court in the case of Sneh Gupta Vs. Devi Sarup & Others, (2009) 2 JLJR 112 (SC). 10. He relied upon a decision of Hon'ble Supreme Court in the case of Sneh Gupta Vs. Devi Sarup & Others, (2009) 2 JLJR 112 (SC). 10. Considering the pleadings of the parties advanced by them, the factum of compromise upon which the final decree was prepared was challenged in First Appeal as well as in the instant appeal. Plaintiff filed Partition Suit No. 1 of 1964 against the defendants/ respondents which was dismissed for default and subsequently miscellaneous case was filed for its restoration which also stood dismissed for default and thereafter they went on filing second and third miscellaneous case for restoration which were also dismissed for default. Three separate petitions were also filed for restoration of the miscellaneous cases and partition suit and ultimately the partition suit was restored accepting the compromise petition dated 22.07.1971 and the partition suit was decreed in terms of the compromise. The court directed that the compromise petition would form the part of decree. The defendants/appellants challenged the compromise application and its acceptance by the court but they met the same fate and was rejected by the court. They also tried to stay the preparation of final decree which also came to be dismissed on the ground that the same is time barred as well as deficiency in paying the court fee. Ultimately decree was sealed and signed. The defendants/appellants also filed petition for transfer of the suit upon which the proceeding of Partition Suit No. 1 of 1964 was stayed but that order of stay was vacated later on. At the time of preparation of final decree in partition suit it was notified but no objection was raised by either of the parties so the decree was finally sealed and signed on 15.12.1973. The first appellate court after considering all these aspects of the matter and in the facts and circumstances of the case held that where final allotment by compromise was made by the parties and they already came in physical possession of their respective shares allotted to them under the compromise decree, nothing remained pending to be dealt with in final decree and in these circumstances the suit was disposed of. The first appellate court also found that there was no occasion for putting LTI and signature on blank paper by these two ladies at the behest of other side with whom a long drawn litigation was going on and obviously these two ladies were not on good terms with Dukhbhanjan Pandey. Secondly, it was also held that if it was done under any coercion or pressure, they should have made complaint in this regard before the appropriate authority, which was not done. Thirdly, it was held that both of them were represented by counsel in Partition Suit No. 1 of 1964, but nothing has come on record that they informed their counsel about the alleged incident of obtaining their LTI and signature on blank paper. Since these two ladies were parties so they put their LTI and signature on the compromise petition and therefore, first appellate court recorded its finding that appellant failed to substantiate their allegation that compromise petition dated 22.07.1971 was fraudulently filed at the instance of Dukhbhanjan Pandey and finally dismissed the appeal. Upon scrutiny of the materials brought on record as well as the decisions cited on behalf of the parties it appears that the exact provision of the Code of Civil Procedure were not applied properly in achieving the right and share of the parties which they were entitled in the disputed property. In this case, on the basis of compromise, consent decree was passed and after observing the legal formalities before signing of the final decree, notice was also given for filing objection but no objection was raised or filed during the specified period and ultimately the court prepared the decree which was accordingly sealed and signed. Once a decree is sealed and signed, the parties are bound by it and very little scope is left to challenge the said decree. The court of Subordinate Judge, Daltanganj (Palamau) as well as first appellate court did not find the ingredients of fraudulent act played in obtaining the consent of two ladies and refused to accept the plea that on some other pretext LTI and signature of those two ladies were obtained. Both the courts did not accept this plea. The first appellate court gave the reason that if the parties were on litigating terms there is remote chance of putting LTI or signature on it. It is hard to believe in such situation. 11. Both the courts did not accept this plea. The first appellate court gave the reason that if the parties were on litigating terms there is remote chance of putting LTI or signature on it. It is hard to believe in such situation. 11. In Sneh Gupta the Hon'ble Supreme Court held:- "Having got a decree in her favour, she was entitled to protect the same. By reason of an agreement between some of the parties or otherwise, a litigant cannot be deprived from the fruit of the decree. 22. Order XXIII, Rule 3 of the Code of Civil Procedure provides that a compromise decree is not binding on such defendants who are not parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of. 23. The court has also a duty to prevent injustice to one of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial injustice. A consent decree, as is well-known, is merely an agreement between the parties with the seal of court superadded to it. Baldevdas Shivlal and Another vs. Filmistan Distributors (India) Pvt. Ltd. and Others, (1969) 2 SCC 201 ." In this case the parties have compromised the suit and thereafter the objections were invited. In that case the Court further held as under:- If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. If a suit is not filed within the period of limitation, the remedy would be barred as held in the case of Mohd. Noorul Hoda vs. Bibi Raifunnisa & Others, (1996) 7 SCC 767 . In the instant case no objection was filed within time while the objections were invited before the seal and sign of final decree. Now without following the provisions of Code of Civil Procedure they have chosen another way of filing the First Appeal. The First Appellate Court did not find any ingredients of fraudulent act. In the instant case no objection was filed within time while the objections were invited before the seal and sign of final decree. Now without following the provisions of Code of Civil Procedure they have chosen another way of filing the First Appeal. The First Appellate Court did not find any ingredients of fraudulent act. The objections were invited before preparation of decree just to avoid these types of situation and circumstances and to provide a platform where one can lodge his protest before sealing and signature of the decree. 12. Therefore, under such circumstances, finding no occasion to interfere into the findings recorded by the first appellate court which is based on sound reasoning, the instant Letters Patent Appeal is dismissed. I agree – Aparesh Kumar Singh. Letters Patent Appeal dismissed.