GYAN CHAND Vs. MALTHOO RAM

JUDGEMENT

(1.) The appellant feels aggrieved by the Judgment and decree dated 30.4.90 passed by Second Addl. District Judge Tikamgarh in Civil Appeal No. 12-A/88, arising out of the judgment and decree dated 31.8.92 passed by Civil Judge Class I Tikamgarh in Civil Suit No. 1-A/81 and has preferred this second appeal challenging legality and validity thereof under section 100 Civil Procedure Code

(2.) The dispute between the parties is about a shop situated at Tikamgarh town near Tahsil Office, allegedly mortgaged with the respondent on 10.11.72. Since the appellant did not permit redemption of mortgage, the suit was filed for its redemption and delivery of possession together with mesne profits. The appellant-defendant denied the said claim. The learned trial Judge by his judgment and decree dated 31.8.82 dismissed the said suit but the said judgment and decree was set aside in appeal by the District Judge Tikamgarh on 18.7.84. The said shop was there after declared to have been redeemed. The matter came to this Court in Second Appeal No. 382/84. This Court by its Judgment and decree dated 28.1.88 allowed the appeal and remanded the case to the learned lower appellate Court to decide whether the document Ex. P-1 created a mortgage or the parties had intended to create a relationship of landlord and tenant. On remand, the learned lower appellate Court fixed the case for hearing. However on 18.7.88 an application dated 14.7.88 signed by the two parties was filed informing the Court that the parties have compromised the matter and in terms of the compromise, the disputed shop should be treated as a shop under mortgage which may be ordered to be redeemed. A prayer was made that a decree in terms of compromise may be passed. This application was opposed by the appellant who raised objection to the said compromise by filing his reply dated 20.7.88. Thereafter the parties filed several documents and led evidence. The matter seems to have been brought to this Court again in Civil Revision No. 420/88 by the appellant. This Court by its order dated 2.5.89 held that the District Judge was within his jurisdiction to record evidence to decide whether there has been a written agreement between the parties. Thereafter the learned lower appellate Court on the basis of the evidence adduced by the parties, held that the matter has been compromised and the compromise in so far as it affected the disputed property was ordered to be made a part of the decree. That is how the impugned judgment and decree was passed.

(3.) This Court while admitting this appeal, framed the following substantial questions of law.