SURAJMAL Vs. BHEROOLAL

JUDGEMENT

(1.) THE appellant Surajmal and the respondents Bheroolal and Gokalchand are rival pre-emptors and obtained a joint decree in a suit for pre-emption by which the right of the appellant to pre-empt was adjudged superior to that of Bheroolal and gokalchand. By this decree which is dated 5-5-1945, the trial Court (Hakim of sambhar) declared that Surajmal appellant do pay a sum of Rs. 850/- in Court by or before 15-6-1945, whereupon he would be entitled to receive possession of dhularam's house from defendants Nos. 1 to 5 (Ganeshilal and others, vendees ). It was further provided by the decree that if Surajmal fails to deposit the amount, (apparently meaning thereby, by or before 15-6-1945) then the decree passed in his favour shall stand cancelled. In that event it was further provided that if gokalchand etc. should deposit the sum of Rs. 850/-before 15-7-1945, in Court, they would be entitled to obtain possession of the house. Certain other directions as regards costs were also made in the decree but with those we are not concerned for the purposes of the present appeal. The appellant's case is that he paid the decretal amount (in fact he alleges to have paid a sum of Rs. 1350/- i. e. , Rs. 500/-over and above the decretal amount of Rs. 850/- to dissuade the vendees from filing any further appeal) to the vendees out of Court on 11-6-1945. His case further is that as the Civil Courts were closed on account of the summer vacation, during the month of June, 1945, he had moved an application before the Hakim Sambhar for certification of this payment on 2-71945. A receipt O-8 dated 11-6-1945 from the vendees was also filed along with this application. The appellant's case further is that the rival pre-emptor Gokalchand had made a compromise with the vendees on behalf of himself and his nephew bheroolal on 9-6-1945, in which it was stated that the vendees were desirous of filing an appeal from the judgment of the trial Court but the dispute had been compromised and the vendees had given up their right of appeal inasmuch as gokalchand had received a sum of Rs. 90/-from them and they (Gokalchand and bheroolal) had given up their right of pre-emption and they would not seek execution of the decree in their favour. It was further provided in the compromise that if in the event of Surajmal not depositing the decretal amount, the right of pre-emption should accrue in their favour that right should be deemed to have been waived, and that they would in no event exercise the right of pre-emption. It was also mentioned in the compromise that the other decree-holder Bheroolal was not present at the time, and, therefore, his signatures could not be obtained but the compromise was being made with his consent and that the sum of Rs. 90/-which had been received from the vendees would be kept half and half by Gokalchand and Bheroolal. Lastly it was mentioned that if Bheroolal should act in any way in contravention of the terms of this compromise the vendees Madanlal and others would be entitled to recover the cost of the house under pre-emption amounting to Rs. 3500/-along with costs and damages from Gokalchand. This compromise was presented before the Hakim of Sambhar on 9-6-1945 and verified by him. It may also be mentioned in this connection that the parties to the compromise namely Madanlal and Gokalchand had also filed an application before the Hakim of Sambhar that as they were required to go out in connection with their service and it was not possible for them to stay at home till July, 1945, the compromise be verified without delay. This application was obviously made to indicate the urgency of the matter as the Court was closed for the summer vacation for the month of june. The compromise was accordingly verified by the Court on 9-6-1945. It is also alleged by Surajmal that a compromise was arrived at between him and the vendees. Madanlal and others on 11-6-1945. In that compromise there is a reference to the compromise reached between the other pre-emptors Gokalchaud bheroolal and the vendees dated 9-6-1945. It is further mentioned therein that as the vendees and Surajmal belonged to the same community and were relations and as Surajmal used to live in Mirpur, and the vendees were intending to appeal against the decree of the trial Court in Surajmal's favour, Surajmal had in addition to the decretal sum of Rs. 850/- further paid Rs. 500/- in lieu of certain expenditure regarding repairs incurred by the vendees and in return for all this the vendees had agreed not to file any further appeal, and Surajmal had received possession of the suit house from them. It was further mentioned in this compromise that Surajmal would produce a receipt in token of his having received possession in, Court on the resumption of work after the summer vacation.

(2.) IT was in these circumstances that Bheroolal filed an application for execution of the decree on 12-7-1945. Before proceeding further it may be mentioned that there is an application from Bheroolal on the record of the execution Court from which it appears that he produced a receipt for Rs. 850/-in that Court on 16th of february, 1950. The receipt is alleged to be numbered 51 and dated 6-7-1945. There is an order of the executing Court on this application which shows that receipt must have been presented to him after the judgment had been announced. From this receipt it appears that Bheroolal had deposited the decretal amount of rs. 850/-in Hakumat Nama on 6-7-1945.

(3.) THIS execution application was hotly resisted by vendees Madanlal and others as well as by the appellant Surajmal. The appellant's case was that he had paid the money out of Court to the vendees on 11-6-1945, and had taken possession of the house and as he had to go out to earn his livelihood to Pardesh he had handed over all his documents to his counsel with the request that the latter should produce them in the Court as soon as it reopened alter the summer vacation. His case further was that the receipt produced by him was verified by the Court on 2-7-1945, on account of the vacation, and, therefore, it should be considered sufficient compliance with the terms of the decree as he had made the payment to the vendees, though out of Court but within the time permitted by it, that is, on 11-6-1945. Surajmal also contended that so far as Bheroolal was concerned, his uncle gokalchand had compromised the matter with the vendees and Gokalchand was the Karta of the joint Hindu family consisting of Gokalchand and Bheroolal, and, consequently, Bheroolal had no right to execute the decree. The vendees Madanlal and others also contended that Gokalchand had amicably settled the matter with them on 9-6-1945, and that he had accepted a sum of Rs. 90/- from the vendees as consideration for that compromise and got the same verified from the Court on 9-6-1945. It was further contended on behalf of the vendees that they were anxious to file an appeal against the judgment of the trial Court as it had not allowed any money to them in lieu of the expenditure which they had incurred on the repairs to the house, and, therefore, on Surajmal appellant representing to them that he used to live in pardesh and that he was tired of the litigation and that he was further prepared to pay an additional sum of Rs. 500/-to them, they had accepted the total amount of Rs. 1350/- from him and made over the possession of the suit house to him on 11-6-19-15, and that thereafter Surajmal was in effective possession of the house.