JOGI SAH Vs. SUPIA DEVI AND OTHERS

JUDGEMENT

(1.) This appeal by the plaintiff is directed against a judgment of affirmance. Facts giving rive to this appeal, in short are that the lands mentioned in Schedule of the plaint were ancestral Kasht lands of the plaintiff. His grand -father, Loki Sah's name stood recorded in survey records and after his death, his father Dasai Teli's name was recorded therein. After Dasai Teli's death, the plaintiff was recorded in the Survey records. His Kashtkari on the lands mentioned in Schedule I of the plaint stood undisputed. He has been paying rent and getting rent receipt from the landlord and the State after the vesting of the tenures of the estates in the State of Bihar. Dasai Teli, father of the plaintiff, filed Title suit no. 33 of 1938 impleading Ramdutta Teli and Bhagwan Teli as defendants for their eviction from the eastern portion of a house standing on plot no. 866 on the ground of default of payment of rent. The said suit was compromised on the terms that the defendants should remain in that portion till December, 1938 and vacate the tame in January, 1939. They vacated the said portion accordingly. The plaintiff came in possession thereafter. On 7.6.1972 the plaintiff came to know that there had been some fraud in the compromise and the petition filed on 11.7.1938 for the said purpose in Title suit no. 33 of 1938 omitted to mention the correct subject matter and instead mentioned other lands. The plaintiff came to know about the said fraud when Ramdip Rai, the original defendant in the instant suit, wanted to obtain some documents in respect of the suit properties from Ramdutta and Bhagwan. The plaintiff, accordingly, instituted the title suit for eviction on the ground that the compromise decree was invalid and inoperative.

(2.) Ramdutta Teli died during the pendency of the suit and his name was expunged from the record. Bhagwan Teli contested the suit, but he also died after the decree. During the pendency of the appeal in the court below by the plaintiff, Rupia Devi and Ramdip Rai were added as respondent since they claimed interest in the properties in dispute from Ramdutta Teli and Bhagwan Teli. Bhagwan Teli, who had contested the suit, alleged that his father Sheochand Sah was the full brother of Dasai Sah. There was a partition between Dasai Sah and Sheochand Sah. The properties shown in the compromise petition and consequentially the compromise decree were in accordance with the allotments made in the said partition. Sheochand Sah was in exclusive possession of the said properties after partition. Dasai Sah instituted Title suit no. 33 of 1938 making false allegations, but ultimately agreed and compromised the suit recognising the partition and allotments. The allegation of fraud was, accordingly, denied and contested by him.

(3.) My attention has been drawn in the judgment of the learned Additional District Judge, Arrah to a finding at the end of paragraph 10 "......I have no hesitation in holding that the compromise petition filed in the title suit no. 33 of 1938 of the court of 1st Munsif. Arrah does not contain the thumb impression of Dasai Sah, the father of the plaintiff and the finding at the end of paragraph 11 thereof......from what I have stated above it is clear that the compromise petition aforesaid contains the genuine signature and L.T.I. of Dasai Sah." The former conclusion has, however, evidently been wrongly recorded, as, while considering the evidence, the learned Additional District Judge has said that the Director of the Finger Print Bureau of the D.I.G., C.I.D. Bihar had reported that the disputed L.T.I. of Dasai Sah tallied with his admitted L.T.I. and further that "......I am of the opinion that the opinion of the experts of the finger print bureau of the office of the D.I.O., C.I.D. Bihar, Patna is reliable......"