SEWA RAM Vs. NIRMALA DEVI

JUDGEMENT

(1.) THIS is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for declaration to the effect that she was joint owner in possession to the extent of 1/6th share in respect of the suit land along with all rights appurtenant thereto and further for declaration to the effect that the mutation No.333, sanctioned on the basis of decree dated 21.12.1983 was illegal and ineffective against the rights of the plaintiff and the same was liable to be set aside and the subsequent entries in the revenue record on the basis of the aforesaid alleged decree were illegal and liable to be corrected with consequential relief of permanent injunction restraining the respondents from alienating the suit property was decreed in terms of compromise Ex.CX.

(2.) THE brief facts out of which this appeal has arisen are that earlier one Lala Ram was owner in possession of the suit land. After his death, the suit land was inherited by the parties to the suit being his legal heirs and thus plaintiff-respondents as well as defendant-appellant became joint owners in possession of the same to the extent of 1/6th share each. It is the further case of the plaintiff-respondent that she came to know that mutation No.333 was sanctioned in the name of defendant Nos.1 and 2 on the basis of a decree dated 21.12.1983 in Civil Suit No.560 allegedly suffered by her in the court of then Additional Senior Sub Judge, Jagadhari. THE aforesaid decree and mutation was not binding on her rights being the result of fraud and misrepresentation as she never appeared before the Additional Senior Sub-Judge nor she made any statement before the court and there was no occasion on her part to suffer any decree in favour of defendant Nos.1 and 2. THE entries in the revenue record on the basis of the impugned decree and mutation were liable to be corrected in her name and the defendants were liable to be restrained from alienating the suit land in any manner. Thus, the necessity arose to file the present suit.

(3.) THE parties filed reply to both these applications. In her application, the plaintiff-respondent had pleaded that on 03.01.2007, the parties had arrived at a compromise wherein defendant Nos.1 and 2 had admitted her to be the owner to the extent of 20/170 share out of the total suit land and they also agreed to make a statement regarding this compromise before the Court. A written compromise was also placed on the record of the file. Defendant Nos.1 and 2 also submitted the affidavits admitting the claim of the plaintiff-respondent which were also attached with the application. It was further alleged that the compromise as well as affidavits were written and attached in the presence of defendant Nos.1 and 2 who after verifying its contents as true and correct put their signatures thereon but they intentionally did not make the statement before the Court, as such prayer was made to decide the suit as per the compromise. In his reply, defendant No.1 pleaded that the alleged compromise dated 05.12.2006 was null and void as the same was never executed by him. THE decree dated 21.12.1983 was valid. THE agreement was an act of fraud and misrepresentation. THE contents of the affidavit were not disclosed to him and the same were also the result of misrepresentation. With these allegations, dismissal of the application of the plaintiff with costs was prayed for. Anyhow, defendant No.2 in his reply to this application pleaded that he has no objection if the suit of the plaintiff was decided as per compromise dated 05.12.2006.