RAM AUTAR Vs. UPPER COMMISSIONER BASTI

JUDGEMENT

(1.) Heard Sri R.P. Srivastava for the petitioner. The writ petition has been filed against the order of Upper Commissioner dated 23.6.1979 decreeing the suit under section 299-B on the basis of compromise and the order dated 1.3.1989 rejecting the recall application of the petitioner and the order of Additional Commissioner dated 23.3.2011 dismissing the revision of the petitioner against the aforesaid order.

(2.) Admittedly, the land in dispute was the property of Maternal Grand father of the petitioner. By a gift deed dated 6.3.1943 the property was given to the petitioner with the provision that in case any other son is born to his daughter (mother of the petitioner), he will also get the share in the property in dispute. Thereafter another gift deed was executed on 22.12.1951 in the same terms. On the basis of that gift deed the suit was filed by two of the brothers of the petitioner claiming themselves to be the co-sharers in the property in dispute. Subsequently, the parties entered into the compromise and a written compromise was filed before the Court below on 21.12.1978. The signatures of the parties were verified by their counsels and the compromise was verified by the Court below on 26.3.1979 and after the verification the suit was decreed in terms of the compromise by order dated 26.3.1979. Thereafter the petitioner filed an application for setting aside the compromise decree on 24.3.1988. In the application of the petitioner, it is alleged that property in dispute was the property of one Bipat Lohar who had gifted the property to the petitioner by a gift deed dated 8.3.1943 and his brothers Ramji and Ram Lakhan have no share in it and no summons of the suit was served upon him. It is alleged that the compromise was filed and verified by the Court, the petitioner was in service of Muderawa Sugar Mill and he has neither signed the compromise nor engaged any Counsel on his behalf and the" plaintiffs were resided in Saudi Arabia when the compromise was done as such the compromise is forged and the order has been illegally passed on the basis of compromise. The recall application was heard by Sub Divisional Officer who by order dated 1.3.1989 found that the compromise was signed by the parties and their signatures were also identified by their counsels. On the date when the compromise was filed the Presiding Officer was not in the Court, as such, the compromise was verified on the subsequent date i.e. 23.6.1979 and verification has also been signed by the parties, thus there is no fraud has been committed by the parties. Apart from it, it has also been found that by the gift deed dated 22.12.1951, it has been clarified by Bipat that if any son is born to his daughter then they will also get share in it. As such Ram Ji and Ram Lalkhan were real brothers of the petitioner and in pursuance of the deed dated 22.12.1951 they will also get share in the property in dispute and there is no illegality in the compromise. The recall application was rejected by the order dated 1.3.1989. The petitioner filed a revision against the aforesaid order which was dismissed by Additional Commissioner by order dated 23.3.2011. Hence this writ petition has been filed.

(3.) The Counsel for the petitioner submits that the petitioner has denied the service of the summon of the suit and he has also denied of filing of compromise as well as vakalatnama in the suit. The Trial Court has illegally ignored the allegations made by the petitioner and held that the petitioner had appeared before the Court and filed a compromise. The findings of fact recorded by the Trial Court in this respect is illegal and liable to be set aside.