Court No. - 1
Case :- SECOND APPEAL DEFECTIVE No. - 220 of 2021 Appellant :- Mohd Ishtiyaq And 4 Others Respondent :- Hazi Mushtaq Ahmad And 3 Others Counsel for Appellant :- Sunil Kumar Srivastava
Hon'ble J.J. Munir,J.
1. Heard Mr. Sunil Kumar Srivastava, learned Counsel for the appellants at length, in support of the motion under Order XLI Rule 11 CPC.
2. This is a defendants' second appeal, arising from a preliminary decree, passed in a suit for partition and separate possession.
3. Original Suit no.894 of 2009 was instituted by the plaintiff- respondent 1st Set, Haji Mustaq Ahmad, seeking partition of his share in the ancestral property, a house, against his brothers, Mohd. Ishtiaq and Mohd. Ashfaq. The plaintiff-respondent claimed that defendant nos.1 and 2 to the suit, Mohd. Ishtiaq and Mohd. Ashfaq had a half share in the suit property, whereas he had the other half. The half share was claimed on the basis that the suit property was ancestral and the parties' father, the late Mohd. Ishaq had received it entirely to himself in a family settlement dated 13.09.1980. Subsequently, Mohd. Ishaq made an oral gift (hiba) on 02.07.1984 of his free will, doning a half share in the suit property in favour of the plaintiff-respondent, Mustaq Ahmad, whereas the remainder went to the other two brothers, that is to say, Mohd. Ishtiaq and Mohd. Ashfaq. The oral gift was accepted by the plaintiff-respondent and ownership possession was delivered to the plaintiff-respondent. Later on, he drew up a memorandum of oral gift dated August the 5th, 1984, recording the antecedent oral transaction. This memorandum of oral gift was signed by Mohd. Ishaq, the plaintiff-respondent and the witnesses, before whom the antecedent oral gift had been made, accepted and possession delivered.
4. The plaintiff-respondent filed a declaratory suit against his father, Mohd. Ishaq, being Original Suit no.80 of 2004, seeking a declaration of his rights on the basis of the oral gift. In the said suit, a compromise dated 19.12.2004 was recorded, in terms whereof the plaintiff-respondent was declared to be the owner in possession of the suit property to the extent of his share. The appellants, of whom appellant no.1 is defendant no.1 to the suit, whereas appellant nos.2 to 5 represent the interest of original defendant no.2 to the suit, since deceased, filed Original Suit no.108 of 2006 before the Court of the Civil Judge (Jr. Div.), City Saharanpur, seeking a declaration of their rights against the plaintiff-respondent. In the said suit, a compromise dated 15.07.2006 was recorded, wherein the plaintiff-respondent was declared to be owner of a half share in the suit property on the basis of oral gift, whereas the other half went to defendant-appellant nos.1 and 2. The present suit was contested by the defendant-appellants disputing the oral gift by late Mohd. Ishaq in favour of plaintiff-respondent, as also the compromise decrees passed in the two suits.
5. Also, the three sisters of the plaintiff-respondent and the defendant-appellants made an application, seeking impleadment in the suit dated 04.12.2009, claiming a right in their father's (late Mohd. Ishaq) properties. They were impleaded as defendant nos.3, 4 and 5 to the suit. In the written statement filed by defendant nos.3 to 5, it was pleaded that a family settlement dated 25.03.1986 has been recorded, in terms whereof, the three defendants nos.3 to 5, who are the respondent 2nd Set to this appeal, were given the right to be paid a sum of Rs.50,000/- each in lieu of their share in their father's property by the three brothers, that is to say, the defendant-appellants and the plaintiff-respondent. It was also pleaded that the said sum of money had to be paid to each of the three defendant-respondent 2nd Set within the period of a year and a half. It was also allegedly covenanted that after expiry of the period of one and a half years, in the event of non- payment of the sum of Rs.50,000/-, the defendant (sister), who had not received the due sum of money in lieu of her share, would be entitled to a sum of Rs.1 lakh from her brothers.
6. The Trial Court framed four issued, whereon the parties went to trial. Of these, the first issue framed by the Trial Court was the only one, that was substantial and material. It reads to the following effect (translated into English from Hindi vernacular):
“Whether the plaintiff on the basis of the plaint allegation is owner in possession of a half share in the suit property and entitled to claim partition?”
7. The Trial Court held the plaintiff-respondent entitled to a half share in the suit property on the basis of the oral gift, and, particularly, the two compromises recorded in Original Suit no.80 of 2004 and Original Suit no.108 of 2006. It was held primarily on the state of evidence that the compromise in Original Suit no.108 of 2006 bore the parties' signatures and their photographs. It has been noticed by the Trial Court that defendant-appellant no.1, Mohd. Ishtiaq while testifying as DW- 1, had acknowledged the factum of proceedings taken in Original Suit no.108 of 2006 inter partes. It has also been noticed by the Trial Court that in his cross-examination, Mohd. Ishtiaq, DW-1 has specifically said that the said suit had been filed by Mohd. Ishtiaq and his brother, that is to say, defendant no.2, Ashfaq. It has also been remarked by the Trial Court that no evidence in rebuttal of the aforesaid compromise decree passed in Original Suit no.108 of 2006 has been adduced on behalf of defendant nos.1 and 2.
8. The lower Appellate Court, in writing its findings of affirmation on the said issue, has also taken note of the two compromise decrees. It has been remarked by the lower Appellate Court that since the defendant-appellants have not taken any steps to challenge the two compromise decrees passed in Original Suit nos.80 of 2004 and 108 of 2006 before any Court of competent jurisdiction, the decrees must be held to be operative and binding on the parties.
9. Here, it must be noted that the claim set up by the defendant-respondent 2nd Set, that is to say, the three sisters have been negatived by the Trial Court on the ground that their claim is based on some kind of a memorandum of settlement dated 25.03.1986, where each of the three daughters are said to have been given a right to receive Rs.50,000/- each from their brothers in lieu of their share in the father's property. The Trial Court has remarked about this claim of the defendant- respondents 2nd Set that they have filed on record a copy of the memorandum of settlement, bearing paper no. 110 GA-1. Apparently, the Trial Court has ignored the document as inadmissible on account of it being secondary evidence, without the foundation laid for its reception. It has also been opined by the Trial Court that the first of the two compromise decrees, that is to say, the one passed in Original Suit no.80 of 2004, between the plaintiff-respondent and the parties' father, Mohd. Ishaq, was recorded on 10.01.2005 during Mohd. Ishaq's lifetime. The said compromise decree also does not carry any reference to the settlement allegedly made in favour of the daughters, that is to say, the defendant-respondents 2nd Set. The Trial Court has, therefore, disbelieved the defendant- respondents 2nd Set's claim. The lower Appellate Court has affirmed that finding also.
10. Before this Court, the learned Counsel for the appellants has laid great emphasis on the fact that admittedly the property in dispute has come to the defendant-appellants and the plaintiff-respondent from their father. It has been urged on behalf of the defendant-appellants that clearly the three brothers are entitled to a 1/3rd share each and the Courts below have gone utterly wrong in holding the plaintiff-respondent entitled to a half share.
11. This Court is afraid that the appellants’ contention is not tenable. The finding in favour of the plaintiff-respondent, holding him entitled to a half share, primarily proceeds on the basis of the two compromise decrees recorded in the two suits, to which detailed allusion has been made hereinbefore. Admittedly, the compromise decree in Original Suit no.108 of 2008 is one passed inter partes, where the suit was instituted by the defendant-appellants. The compromise was signed by all parties to the suit. In terms of the said compromise, the defendant-appellants have acknowledged a half share for the plaintiff-respondent in the suit property. If the defendant- appellants had to take the stand that the said compromise decree was the result of fraud, they had to take steps to get the decree set aside, may be through an application under the proviso to Rule 3 of Order XXIII Code of Civil Procedure made to the Court, which passed the said decree. The earlier compromise decree between the plaintiff-respondent and their father could also be similarly challenged through an appropriate application, inasmuch as the defendant-appellants have stepped into their father's shoes. No such action to impugn the two compromise decrees, one between the plaintiff-respondent and the parties' father, the late Mohd. Ishaq and the other inter partes, were ever taken. The Courts below have, therefore, rightly opined that merely on the basis of pleading a case and urging in their oral evidence that the compromise decrees do not bind them being vitiated by fraud, would be of no avail, so long as the compromise decrees are not set aside. These would continue to govern the rights of parties. Undoubtedly, under the compromise decrees, the plaintiff-respondent has a half share in the suit property.
12. In the opinion of this Court, therefore, the Courts below have not committed any error of law, much less a manifest error, in granting a preliminary decree to the plaintiff-respondent for a half share in the suit property. No substantial question of law arises for consideration in this appeal.
13. This appeal is, accordingly, dismissed under Order LXI Rule 11 CPC.
14. Let a copy of this order be communicated to the Ist Civil Judge (Sr. Div.), Saharanpur through the learned District Judge, Saharanpur by the Registrar (Compliance).
Order Date :- 28.7.2021 Anoop/ I. Batabyal