SHIV SINGH Vs. VIJAY KUMAR AND OTHERS

JUDGEMENT

(1.) This judgment will dispose of Regular Second Appeal Nos. 1207 and 1754 of 1982, as both of them arise out of the one judgment of the Additional District Judge, Faridabad, dated May 5, 1982.

(2.) Tara Chand and Sagar Chand, sons of Babu Ram were entered as the owners of the suit land whereas Shiv Singh was entered as the tenant under them. On February 3, 1960, the landowners executed a perpetual lease deed in favour of Shiv Singh, tenant and Dewan Chand, for 99 years. That very day, i.e. February 3, 1960, the landowners entered into an agreement to sell the suit land for a sum of Rs. 15,000/- with one Khacheru, Jat who was also related to the lessees. In pursuance of the said agreement, the sale deed was executed on May 30, 1960, for a consideration of Rs. 15,000/-. Dewan Chand filed the suit to pre-empt the said sale. The said suit was ultimately decreed by this Court in Regular Second Appeal No. 481 of 1963, Dewan Chand v. Sheo Singh, decided on 7.10.1964. In the said suit, the validity of the lease dated February 3, 1960, was upheld and the pre-emption suit was decreed subject to the rights of the lessees under the lease. Later on Jawala Devi, the mother of the vendors Tara Chand and Sagar Chand filed the suit for declaration to the effect that she was also a share-holder in the land sold by her sons and that the sale and the lease thereof that extent were invalid. The said suit was also decreed by this Court in Smt. Jawala Devi v. Shiv Singh, RSA No. 1322 of 1967 decided on 13.1.1973, Exhibit P-21. Therein, her suit to the extent of 5 marlas 2 kanals out of the land sold was decreed. The present suit was filed on June 13, 1978, on behalf of the plaintiffs, the minor sons of Tara Chand, vendor. It was alleged therein that they along with their father Tara Chand constituted a joint Hindu family and owned and possessed comparcenary property. It was also pleaded that the plaintiffs being caste Hindu Vaish Aggarwals were governed by Hindu law in the matters of alienations and succession. After the death of Babu Ram mutation of inheritance was wrongly got entered by the defendants on December 3, 1959 during their minority in favour of Tara Chand and Sagar Chand. According to the plaintiffs Sagar Chand ceased to be the member of the Hindu coparcenary since he was adopted by Shibu Mal in the year 1949 resulting in his complete severance from the family of the plaintiffs. It was further pleaded that Tara Chand and Sagar Chand, illegally and without sufficient title executed the sale deed in favour of Khacheru son of Nain Singh which did not bind them. The suit was contested on behalf of the defendants on the plea that it was a collusive suit filed by the plaintiffs in collusion with Dewan Chand, defendant No. 4, who had successfully pre-empted the sale earlier. It was denied that the plaintiffs constituted a joint Hindu family along with Dewan Chand & Tara Chand. It was also denied that Sagar Chand had been validly adopted by Shibu Mal in the year 1949. It was also pleaded that since the land was already in occupation of Shiv Singh as a tenant and the vendors were unable to manage the same, the alienation was an act of good management. Before the arguments were heard the plaintiffs entered into a compromise with Dewan Chand, defendant, who had pre-empted the sale earlier and was the owner of the suit land because of the pre-emption decree in his favour. This compromise is dated December 15, 1981, Exhibit C I. By virtue of the said agreement, Dewan Chand, defendant, admitted that Tara Chand was addicted to immoral activities and that he had no objection if the suit of the plaintiffs was decreed against him for setting aside the sale, in question, on payment of the sale consideration of Rs. 15,000/- plus Rs. 10,000/- as the expenses incurred by him; in all Rs. 25,000/- besides interest at the rate of 15 per cent per annum according to Bank procedure with effect from April 1, 1965, till realisation. It was also contemplated that the plaintiffs shall pay or deposit that amount within five years from then and that they shall not transfer or alienate in any manner the land, in dispute, till the whole amount was paid. The trial Court came to the conclusion that the suit was collusive between the plaintiffs and Dewan Chand, defendant and that the sale was for consideration and legal necessity. In view of these findings, the plaintiffs, suit was dismissed. In appeal, the learned Additional District Judge reversed the said findings of the trial Court and held that the sale was without consideration and legal necessity and that there was no collusion between the plaintiffs and Dewan Chand, defendant, as concluded by the trial Court. In view of these findings, the plaintiffs' suit was decreed. Dissatisfied with the same, the lessee and the vendee Khacheru's sons have filed these two separate second appeals in the Court.

(3.) The main controversy in these appeals is : as to what is the effect of the compromise, Exhibit C.I, dated December 15, 1981, between the plaintiffs and Dewan Chand, defendant. According to the appellants, by virtue of the said compromise, the plaintiffs virtually admitted the validity of the sale made by Tara Chand and Sagar Chand in favour of Khacheru which was successfully pre-empted by Dewan Chand defendant. Thus, it was argued on behalf of the appellants that once Dewan Chand, defendant, accepted the sale price of Rs. 15,000/- and in addition a sum of Rs. 10,000/- then his statement that the sale be set aside, was of no consequence; rather it proved that the plaintiffs themselves by entering into the compromise, admitted that the sale was for consideration and legal necessity and that it was on that account that they agreed to pay the sale price along with the additional sum of Rs. 10,000/-, to Dewan Chand, defendant. On the other hand, the learned counsel for the plaintiffs-respondents argued that by virtue of the said compromise, Dewan Chand, defendant, admitted that the sale, in dispute, was without legal necessity and, therefore, it could not be held that the plaintiffs admitted the validity of the sale as such.