CHHEDI Vs. INDRAPATI

JUDGEMENT

(1.) THIS appeal is direct ed against the decision of the Civil and Sessions Judge, Linked Court of Gonda- Bahraich at Gonda, allowing the appeal of the plaintiff respondent and re versing the decree passed by the trial Court by which the plaintiff's suit was dismissed. The facts giving rise to this appeal may be, briefly, stated as follows:- The plaintiff alleged herself to be the sirdar of several plots situate in village Basantpur, Pargana Tulsipur and the defen dant had no right, title and interest in the same. She contended that the defendant filed a false suit in the Court of the Judi cial Officer, Balrampur under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act on 29th September, 1961 against the plaintiff and on 30th Septem ber, 1961 he filed a compromise purporting to have been arrived at between the par ties in the suit. She, however, did not have any knowledge of the institution of the suit or of the compromise petition. In the month of October, 1964, the defendant started interfering with her possession on the land in question on the basis of the compromise decree and then she came to know that some case was filed by the de fendant. She got the file of the case ins pected and then it transpired that some lawyer put in appearance in the case on her behalf and made the compromise pur porting to be on her behalf. She asserted that she never engaged any counsel nor authorised him to put in appearance in the case and file the compromise. The entire proceedings were fraudulent and the alleg. ed compromise decree was not binding on her. She, therefore, sought cancellation of the compromise decree dated 30th Septem ber, 1961.

(2.) IN defence the defendant plead ed that he was the sirdar of the land in suit and the plaintiff had taken wrongful possession over the same. Consequently he had to file the suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. Prior to the institution of that suit Panchayat between the parties in the village took place wherein the plaia-tiff admitted the claim of the defendam and it was decided therein that the disput should be settled by filing com promise in the Court, hence that suit was filed and the plaintiff entered into a compromise which was signed and verified by her counsel whom she had engaged by executing a vakalatnama. It was also al leged that the suit filed by the present res pondent was barred by time and that the suit was not cognizable by the Civil Court.

(3.) THE learned counsel for the appellant urged that the suit was barred by time and that it was not cognizable by the civil Court. In regard to the question of limitation it was urged that the suit for cancellation of the compromise decree dated 30th September, 1961 having been filed on 28th November, 1964 was barred by time under Article 59 of the Indian Limitation Act. The plaintiff alleged that she acquired knowledge of the suit in question in the month of October, 1964. The defendant denied this fact and alleged that she had the knowledge of the suit from its inception. The appellate Court below, on a consideration of the evidence on record, found that no compromise was made by the plaintiff nor did she instruct Sri Shaukat Husain vakil to make a com promise on her behalf. The story that the plaintiff had engaged Sri Shaukat Husain in the case was disbelieved. That suit was filed on 29th September, 1961 and on the very next date the compromise peti tion was filed in the case. Obviously no summons were issued to Smt. Inderpati and she could not have any knowledge of the institution of that suit or of the passing of the decree therein. The defendant did not suggest any other date when the plain tiff could have acquired the knowledge of the institution of that suit. His assertion that the plaintiff Smt. Indrapati knew of the institution of the suit from its inception and the compromise petition was filed on her behalf by her counsel was rightly dis believed. Under Article 59 of the Limi tation Act, 1963 a suit for cancellation or setting aside an instrument or decree is to be filed within three years of the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside first become known to him. In the instant case the plaintiff came to know of the institution of the suit and the pass ing of the compromise decree in the month of October, 1964 when the defendant wanted to interfere with her possession over the land in suit and she got the file of the case inspected. Thereafter in the month of November, 1964 she filed the suit which was obviously within time.