SUPDU LAXMANSHET Vs. SONIRAM RAGHO

JUDGEMENT

(1.) THIS is a second appeal arising out of a suit filed by five brothers, the sons of Raghoshet Wani of Dabhadi, against Supadu Laxmanshet Wani, defendant No.1, his six sons defendants Nos. 2 to 7 and their tenants defendants Nos. 8 and9. The plaintiffs claimed to recover possession of two lands, Revision Survey No.83 of Jalgaon and Revision Survey No.273 of Dhandri, together with Rs. 300 as past mesne profits for three years, future raesne profits and costs of the suit. The plaintiffs based their claim on their title which, they alleged, was accepted by the defendants when Suit No.395 of 1924 in the First Class Subordinate Judge's Court at Nasik was compromised. The defendants denied their title and contended that the compromise application, being not registered, was inadmissible in evidence and that it was not binding on them as the compromise had been brought about by undue influence. Both the Courts below disallowed these contentions and awarded to the plaintiffs possession of the two lands in suit, together with Rs. 165 for past mesne profits, costs and future mesne profits.

(2.) THE main facts are not now in dispute. THE plaintiffs and the defendants were at one time members of a joint Hindu family. THEy separated in 1913 and started, dividing between them their joint family property. Admittedly some of the; properties were thus divided and allotted to the shares of the respective) parties. Disputes having then arisen, Supadu and his sons filed Suit No.395 of 1924 in the Court of the First Class Subordinate Judge, Nasik, for a partition of the remaining property and for possession of their share in it. In that suit the two lands which are the subject-matter of this suit had not been included, and the present plaintiffs, Soniram and his brothers, who were then defendants, contended inter alia that those lands belonged to them and had been wrongfully kept in their possession by Supadu and his sons. THEy did not ask that those two lands should be brought into hotch-pot for being partitioned but claimed that they should be ordered to be given into their possession before a partition was effected. THE disputes were eventually settled amicably and a compromise application signed by all the parties was put in. Exhibit 80 is a, certified copy of that application. THE first part of that application recited hew the properties in that suit were to be divided and also made a provision for the maintenance of a widow in the family. At the end of these recitals it was stated : THE above has been settled by mutual agreement. THErefore the request is that a decree be passed in terms thereof. Date June 18, 1926.

(3.) AS some of the defendants in that suit were minors, an application was made that the compromise was for their benefit and the Court accorded its sanction to it under Order XXXII, Rule 7(1), of the Code of Civil Procedure, 1908. Then, on June 29, 1926, the Court passed an order that the compromise should be recorded and filed, and that a decree should follow in terms of it. Accordingly a decree was drawn up embodying the terms of the first part of the compromise which dealt with the properties comprised in that suit, but made no reference to the second part which related to the delivery of possession of the two lands in this suit to the present plaintiffs as owners. Even after this compromise the defendants wrongfully retained possession of those two lands and did not transfer their possession to the plaintiffs although repeatedly asked h do so. This suit was filed just within twelve years of the compromise application. Apart from the admission made by the defendants in the compromise application, there is hardly any evidence to prove the plaintiffs' title to the lands in suit. The lands were purchased by defendant No.1, Supadu, when the family was joint and stand in his name in the revenue records. But plaintiff No.1 Soniram said in Suit No.395 of 1924, and it is also his case now, that at the partition prior to the institution of the suit of 1924 these two lands had been allotted to the plaintiffs' share and Supadu had wrongfully retained them in his possession. This allegation finds support in the admission made by Supadu and his sons in the compromise application and in their undertaking to hand them over to Soniram and his brothers in the right of ownership. The learned appellate Judge did not think it necessary to go into the question of the plaintiffs' title to the lands on its merits as he thought that it was not open to him to go behind the compromise application.