CHHAJJU Vs. GOKUL

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession of a one-third share of 49 bighas and old land. The plaintiff claimed to be entitled to the property on the death of his mother and aunt, Bhurya and Kirpya, daughters of Pirthi, the last male owner.

(2.) On behalf of the defendants it was plea ed that the plaintiff was bound by a family settlement arrived at between the defendants and the ladies and that the claim was also barred by the principle of res judicata in consequence of a previous litigation.

(3.) Pirthi, the last male owner, died some 22 years ago and his widow, Musammat Shibya, succeeded to the estate. She oied in 1910. On her death an application for mutation of names was made in the Revenue Court by Musammat Bhurya and Kirpya, the two daughters of Musammat Shibya, which was opposed by Chajju, defendant, on the allegation that he was the adopted son of Musammat Shibya. The matter remained pending in the Revenue Court for a long time and,ultimately, on the n October, 1911, a compromise was filed in that Court, under which two-thirds of the properties went to the two daughters in equal shares and the remaining one-third to Chhajju and other collaterals. Mutation of names followed accordingly. Very soon after this compromise, namely, on the 18 of June 1912, Musammat Bhurya and Musammat Kirpya instituted a suit in the Civil Court to recover possession of the one-third share of the properties which had gone to Chhajju and others, on the allegation that the previous compromise was not binding on them. In the plaint, as originally filed, there was no relief asked for as to the cancellation of that compromise. The Court of first instance threw out the suit on the technical ground that the plaint was defective. On appeal the plaint was ordered to be amended, and a relief for the cancelation was added, and the case remanded for disposal on the merits. On the 24 of March 1914 the Court of first instance dismissed the suit, holding that the ladies could not avoid the previous compromise. This decree was affirmed in appeal by the District Judge and by the High Court on the 13 of April 1916. The result was, that Chhajju ana others remained in possession of the one-third share of the estate of Pirthi, and a suit brought to recover possession of it by Pirthi's daughters stood dismissed. Both the daughters have since died. Gokul, the present plaintiff, who is the son of Musammat Bhurya has instituted the present suit to recover possession of the one-third share which had passed out of the estate. This suit has been decreed by both the Courts below.