AKLEMA BIBI Vs. MAHUDDIN

JUDGEMENT

(1.) IN spite of service none appears on behalf of the opposite parties. This revisional application is directed against an order no. 38 dated 29.9. 2004 passed by the learned Civil Judge (Junior Division), Lalbagh, Murshidabad in Title Suit no. 218 of 2009 by which an application for amendment of the plaint is rejected.

(2.) THE petitioner instituted a suit for declaration of title to the property in question and a permanent injunction. THE case made out in the plaint is that the father of the petitioner was the owner to the extent of 2/3rd share and the other 1/3rd share was owned by his sister in respect of various properties including the property described in the schedule to the plaint. During his lifetime the father separated his share by amicable partition from his sister and thus became the exclusive owner of the properties allotted to his share. On 23.4.1962 the father sold his property to his two daughters namely the petitioner and one Mursheda Khatun, since deceased. However the said property was reconveyed by the petitioner in favour of her father on 1.11.1962. THE father and the said Mursheda Khatun thereafter executed a registered hebanama on 28.9.1968 and transferred their shares in favour of the petitioner. THE opposite party no. 1, 2 and 7 took a specific defence in the written statement that prior to the institution of the instant suit the petitioner filed Title Suit no. 163 of 1970 against her father and the opposite party no. 1 and 2 which ended into a compromise by passing a compromise decree whereby she stated that she has no right, title and interest in the said property.

(3.) THE same view is reiterated in a later judgment in case of Baldevdas Shivlal and Anr. V. Filmistan Distributors (India) Pvt. Ltd. and Ors. reported in AIR 1970 SC 406. Although in case of Subba Rao (supra), the three-judge Bench of the apex court held that the comprise decree is not a decision of the court but the court merely sets the seal of it on the basis of the averment made by the parties but failed to take notes of a five-judge Bench of the apex court in case of Sailendra Narayan Bhanja Deo V. THE State of Orissa reported in AIR 1956 SC 346. It is settled law that in case of a conflicting decision, the decision delivered by a Bench having larger Coram has a binding effect. THE Division Bench of the apex court in case of Subba Rao (supra) did not consider the case of the five-judge Bench delivered by the apex court in case of Sailendra Narayan Bhanja Deo (supra) and thus cannot have any binding effect.