RESHOO Vs. JAMAL DAR

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree of the learned District Judge Baramulla dated 21 -7 -1970 by which the judgment and decree of Sub Judge Baramulla dated 31 -12 -1969 has been affirmed.

(2.) THE facts are these: One, Rehman Dar, died issueless. His landed property was mutated in the name of his widow, Mst Shahmali, after rejecting the claim of Mst. Zebi who claimed to be the Khana Nishin Dukhtar Parwardah of the deceased. The order was made at the back of Mst. Zebi. Subsequently Mst. Shahmali also died. The property was mutated in the name of Jamal Dar und Razak Dar as revesionary heirs of Rehman Dar. At this stage Mst. Zebi went in revision against the earlier order rejecting her claim. She arraigned Jamal Dar and Razak Dar as respondents to the revision, being those in whose favour the property was mutated meanwhile on account of the death of Mst. Shahmali. By his order dated 29 -4 -2011 the Revenue Commissioner recommended that the case be sent to the Tehsildar who should be asked to hear Mst. Zebi before the question of succession to Rehman Dar was decided by him. The matter eventually came before the Revenue Minister. While the case was still pending before the Revenue Minister one, Mst. Azizi, filed an application before him for being impleaded as a party on the ground that she too like Jamal Dar and Razak Dar was a reversionary heir of the deceased Renman Dar. Alongside the parties to the revision alongwith Mst. Azizi filed a petition of compromise EX. DW. 1 in which they recited that they had arrived at a settlement regarding the matter in dispute amongst them ­selves and while indicating the share which each of them was to get in the property prayed that the mutation of the names might be effected accordingly. This was so on 17th Bahdoon 2011. On the same date they executed an agreement Ex. DW. 2 between themselves in which they again recited the fact of the settlement as also the same having been implemented on spot and agreed that the claim made by either party which was dero ­gatory to the said settlement shall be void and ineffective. After the peti ­tion of compromise was filed, the parties did not appear before the Revenue Minister on various hearings. On 13 -6 -1955 the Revenue Minister made an order rejecting the reference without however saying anything about the application made meanwhile by Mst. Aziz or as regards the petition of compromise filed by the parties alongwith her. In this process Mst. Zebi appears also to have died. A review application was therefore filed by her son, Reshoo Dar, against the order made by the Revenue Minister. On 12 -11 1959 the review petition was dismissed and he was asked to seek his remedy in a civil court. On 17 -2 -1960, therefore, Reshoo Dar filed a suit for permanent injunction against Jamal Dar, Razak Dar and Mst. Azizi restraining them from interfering with his title and possession of land, allotted to his mother, Mst. Zebi, as a result of the aforesaid settlement. Jamal Dar and Razak Dar contested the suit. They interalia pleaded that Reshoo Dar was out of possession. Accordingly a preliminary issue was raised on this point. While this point awaited determination, Jamal Dar and Razak Dar filed a suit for possession against Reshoo and Mst. Azizi on 8 -7 -1963 in respect of land measuring 35 kanals 4 marlas situate in Village Doona Dara, which was the land allotted to them as a consequence of an earlier settle ­ment between the parties. That having been done, the counsel for Jamal Dar and Razak Dar gave a statement on 8 -3 -1964 in the earlier suit filed by Resho plaintiff that the possession in fact belonged to the plaintiff which the defendants had no intention to interfere with except in due course of law and if therefore a decree were granted in favour of the plaintiff without prejudice to the rights of the defendants so doing, the defendants had no objection. The court passed a decree restraining the defendants from interfering with plaintiffs possession of the suit land. In the decree sheet which was drawn up following this order the plaintiff was however, declared to be in proprietary possession of the suit land by which the defendants were restrained from interfering permanently. Eventually the later suit filed by Jamal Dar and Razak Dar was also decreed. The decree was affirmed on appeal by the District Judge Baramulla. Hence this appeal by Reshoo defendant.

(3.) THE case of the plaintiffs in the trial court was that they were the only lawful successors to the property of the deceased Rehman Dar, being his reversionary heirs and that Mst. Zebi had no right or title to the property as she was neither in fact Dukhtar Parwardah of the deceased nor also was the family of the parties governed by such custom. The defendants pleaded in reply that Mst. Zebi was Khana Nishin Dukhtar Parwardah of the deceased and therefore entitled to succeed to his property in preference to the plaintiffs and that in any case they were estopped from bringing the present suit on account of the earlier settlement which was acted upon by the parties and in furtherance whereof, petition of compromise and agreement were executed by them. They also pleaded res -judicata and adverse possession. The question about res -judicata was not pressed before the trial court nor also before the first appellate court. On consideration of evidence both the courts, however, negatived the pleas about adoption and adverse possession. As respects the plea of estoppel they unanimously held that it was not sustainable because the petition of compromise and the agreement were both inadmissible in evidence for want of registration.