SYED KAMRUDDIN ASHRAFF Vs. BIBI SYEDA KHATOON

JUDGEMENT

(1.) THIS application under Order XXIII, Rule 3 of the Code of Civil Procedure has been preferred by respondent No. 1 of F.A. No. 285 of 1980 (Syeda Kamruddin Ashraffv. Bibi Syeda Khatoon and ors.), challenging adjustment of the appeal which has ended in a compromise between the parties vide order dated 9 -4 -1997.

(2.) THIS application has been filed by the respondent No. 1 of the appeal who was a co -plaintiff. I shall go by the description of the parties occurring in the appeal. Respondent No. 1 had instituted Title Suit No. 157/69/160/76 along with others which was decreed by judgment dated 4 -2 -1980, and the plaintiffs were given about 90% of the suit property which is a plot of land in the township of Patna measuring about 80 decimals of land. The defendants preferred the present F.A No, 235 of 1980 in this Court. The plaintiffs are the respondents in the appeai. Some of the respondent died during the pendency of the appeal and the heirs have been substituted. The respondents had jointly fought the suit as plaintiffs, and were represented by the same Counsel and were together in the appeal till its disposal by order dated 9 -4 -1997. The respondents have thereafter divided in two camps. Whereas respondent No. 1 has challenged the validity of the compromise decree, the remaining respondents stand by the same. The appeal remained pending in this Court ever since 1980,and not much of progress took place excepting orders on substitution matters were passed from time to time, nor did the plaintiffs -respondents take any steps in the trial Court for Takhtabandi and preparation of the final decree. Ultimately, a joint compromise petition under Order XXIII, Rule 3, C.P.C. was filed in this Court on 11 -3 -1997, which was accepted by a learned Single Judge of this Court by his order dated 9 -4 -1997, and the appeal was disposed of in terms of the joint compromise petition.

(3.) DURING the course of inquiry, respondent No. 1 examined three a witnesses, and the appellants examined four witnesses. Respondent No. 1 alone has challenged the compromise. The remaining respondents own and reaffirm the compromise and did not examine any witness. However, respondent No. 3 (a) (Shaheen Ashraf)had sent a fax message dated 29 -8 -2000 from Canada to the Registar -General of this Court which is on record and has been noticed in (he inquiry report The first witness on behalf of the respondent No. 1 is Mahtab Ahmad who is her son. He is on the very face of it an interested witness and striver, to support his mothers case In a clumsy manner. The pre varication in his deposition is discernible on a plain reading of it, and enquivocates between admission of the compromise at one place and denial at another. He admits the signature of his mother on the Vakalatnama and the compromise petition at one place and denies at another. This witness is, therefore, untrustworthy. Syed Shamim Ahmad is the second witness on behalf of respondent No. 1 and is her son. He is obviously an interested witness. It appears that he has come to controvert the assertions made on behalf of the appellants and does not seem to be aware of the engagement of Sri Ramchandra Lal Das, Advocate, who is shown to have been jointly engaged by the respondents in the First Appeal. Respondent No. 1 herself is the third and the last witness who has examined he self in support of her application. She has stated in her cross -examination that her case was being looked after by her Munshi. There was a talk for compromise when the appeal was pending in the High Court, but she has not received any money at all Her deposition also does not inspire confidence. She does not seem to be aware of the developments in the litigation. 4. -1. It appears from a joint reading of the three witnesses that she is not aware of the day -to -day happenings in the litigation which was being looked after by the Munshi. Vakalatnama in favour of Sri Ramchandra Lal Das appears to have been executed on 13. -2 -1995 by respondent No. 1 in the appeal. Her signature also appears on the affidavit filed on 11 -3 -1997 in presence of Sri Lal Bahadur Rai, Advocate 'sClerk, on the compromise petition. Her signature also appears on the Vakalatnama executed in favour of Kumar Alok, Advocate, in the present interlocutory application, but curiously enough she puts her thumb impression on her deposition before the Registrar -General, perhaps to avoid comparison of her signatures. While she denies her two signatures on the affidavit and Vakalatnama in favour of Sri R.L. Das, she accepts her signature on the Vakalatnama executed on 28 -7 -1998 in favour of Sri Kumar Alok, Advocate. It appears to me on a joint reading of this application and the evidence on record that she is an old lady and is not much aware of the happenings in the litigation and is acting at the behest of her Munshi and the sons. Her other two witnesses are interested and unreliable witnesses.