BHIMA RAMA JADHAV Vs. ABDUL RASHID

JUDGEMENT

(1.) The point for decision is whether the plaintiff-appellant is estopped, in view of the proceedings in Civil Suit No. 1017 of 1945 on the file of the learned Civil Judge, First Class, Bijipur, from contending that the sale deed executed by him in favour of the defendant on 11-7-1941 (Ex. 59) is invalid and he is entitled to possession of the suit property. Other contentions raised in the pleadings have been decided by the Courts below and not reopened in this Court.

(2.) The antecedent facts, relevant for the purpose of this appeal, as determined by the Courts below fire as follows : Survey No. 182 of Dyaberi village measuring 27 acres and 9 guntas and assessed at Rs. 12/- belonged to the plaintiff's uncle piraji; the suit property i.e. S. No. 188/2 measuring 9 acres and 3 guntas is a portion of that Survey Number, this was sold by piraji to the plaintiff for Rs. 700/-as per Exhibit 60 dated 12-9-1939; the entire S. No. 188 was subject to an earlier mortgage in favour of one Jamunabai Vishnudas Gujar, Piraji filed Civil Suit No. 133 of 1938 against Jamunabai for accounts and redemption under S. 150 of the D.A.U. Act; the decree in that suit directed the mortgagor' (Piraji) to pay a sum of Rs. 1200/- together with costs and future interest in annual instalments commencing from 1-4-1940; as the mortgagor failed to pay the instalments due, the mortgagee (Jamunabai) filed Darkast No. 480 of 1940 and had the execution transferred to the Collector for the sale of the mortgaged property or a sufficient portion thereof as per Exhibit 51; when the Darkast in question was pending before the Collector, the plaintiff who had purchased the suit property under Ex. 60 sold the same to the defendant as per Exhibit 59 dated 11-7-1941; oven before the defendant purchased the suit properly, from the plaintiff, Piraji had sold another portion of S. No. 188 i.e. S. No. 188/1B to one Pirsab on 3-5-1941 who in turn sold the same to the plaintiff on 24-11-1941; on 7-6-1945, Piraji sold still another portion of S. No. 188 i.e. No. 188/1A to one Krishnan; on 28-6-1945 Piraji instituted Civil Suit No. 1017 of 1945 against the present plaintiff (Bhima Rama Jadhav), the present defendant (Abdul Bashid Saheb) and Pirsab for a declaration that the alienations effected by him are illegal and void ab initio as they contravened the provisions contained in para 11 of Schedule III of the Civil Procedure Code, having been effected when the Darkast filed by Jamunabai was pending before the Collector; that suit ended in a compromise, the compromise was made a decree of Court on 12-9-1945 (Ex. 62); thereunder Piraji admitted the plaintiff's title to S. No. 188/1B as well as the defendant's title to S. No. 188/2; to this compromise all the parries to Civil Suit No. 1017/45 had joined; under the compromise in question Piraji was paid an additional sum of Rs. 700/- by the present plaintiff and a sum oE Rs. 300/- by the present defendant. The relevant portion of the compromise reads as follows ;

(3.) The courts below have held that the sale deed in favour of the defendant is void as it contravened the provisions of para II of Schedule III, C. P. C. The correctness of that finding was not canvassed in this Court. What is urged is that the plaintiff is estopped from contesting the validity of the sale deed in question, in view of--the compromise decree in C. S. No. 1017/45. The trial Court negatived this contention. But the first appellate Court upheld the same. It is clear from Ex. 62 that the plaintiff as well as his uncle Piraji did represent to the defendant that they will not challenge the validity of Exhibit 59 and thus made the defendant pay a further sum of Rs. 300/-. Can the plaintiff be permitted, to resile from the representation in question? It is urged On behalf of the plaintiff that the compromise Ex. 62 was merely a devise to validate an invalid sale; in essence Ex. 62 was only a contract and a contract embodying an illegal term and as such it must be ignored.