CHANDRA BAI Vs. KHANDAL VIPRA VIDYALAY SAMITI

JUDGEMENT

(1.) THIS Special Appeal has been preferred under Section 18 of rajasthan High Court Ordinance, 1949 against the judgment dated 28-5-1991 passed by the learned single Judge whereby he set aside the judgment and decree dated 11-12-1979 and also reversed the findings of the trial Court arrived at vide order dated 26-11-1979 dismissing the application of respondent No. 1 assignee/buyer of the suit property filed under Order 22, Rule 10 of code of Civil Procedure.

(2.) THE brief facts necessary for the disposal of the appeal are that some property of Nawab Moazzam Ali Khan was declared as evacuee property. He was not having any means to litigate and get it deleted from the record as an evacuee property. He executed an agreement dated 8-2-1957 with Asgar hussain of Allahabad that Asgar Hussain will contest the proceedings before the authorities for deletion of the property and in turn shall be entitled to 1/4th share of the property so deleted from the record of the evacuee property. Agreed share was not given to Asgar Hussain. Asgar Hussain filed a suit against Nawab Moazzam Ali Khan based on the said agreement. Moazzam AH khan is the father of the respondent Nos. 2, 3 and 4 and grand-father of respondent Nos. 2/2 to 2/5 who were claiming 1/4th share of the property mentioned in the Schedule annexed with the plaint and in the alternative the price thereof. The suit was contested by the defendant before the trial Court and the preliminary decree came to be passed on 28-2-1963 declaring that the plaintiff is entitled to Vith share in the property restored to the defendant Nawab Moazzam Ali Khan. The said preliminary decree came to be confirmed by the High Court on 18-3-1971. During the pendency of the appeal, two Commissioners were appointed for execution of the decree by metes and bounds. Reports have been submitted by the Commissioners.

(3.) DURING the pendency of the suit property was attached for the reason that the defendant may not alienate the property. On filing an undertaking by the defendant, the attachment order was withdrawn. Malika aminujmani Begum was substituted as assignee plaintiff on the basis of alleged assignment on 23-8-1967. Thereafter similarly chandra Bai-appellant was substituted in place of Malika Aminujmani Begum on the basis of further assignment as plaintiff. On 7-8-1967 Abdul Kadir son of deceased nawab Moazzam Ali Khan transferred the suit property to the Khandal Vipra Vidyalaya samiti for a consideration of Rs. 40,999/ -. The proceedings continued till 22-9-1979 and till then statement of Abdul Kadir was not recorded. While the evidence was being recorded on 16-10-1979 in the Court, it was noted that there was some talk of compromise between the parties but the compromise was not filed before the Court. The suit was fixed for 6-11-1979 and further adjourned to 12-11-1979. On that date, an application was presented on behalf of the plaintiff that compromise between the parties may be taken on record. The compromise was verified on 12-11-1979 and the suit was fixed for judgment on 17-11-1979.