MAHABIR TEWARY Vs. CHHATHU TEWARY

JUDGEMENT

(1.) This is an appeal against a decision of the Subordinate Judge remanding the case to the Munsif for decision after appointing a commission to report on certain matters which are specified in the Subordinate Judge's order.

(2.) The facts which are relevant to our decision are as follows: It appears that in 1925 there was a partition suit in which one Sahdeo Tewary was the plaintiff and his two nephews Chhathu Tewary and Jangi Tewary were the defendants. In that suit a compromise petition was filed and a decree was passed in accordance with the compromise. The present suit was brought by Chhathu and Jangi against Mahabir Tewary and Raghubir Tewari, sons of Sahdeo Tewary, who was the plaintiff in the suit of 1925 to set aside the compromise as having been induced by fraud.

(3.) Now the allegations of fraud are specifically set out, albeit with immense verbosity in the plaint, and the simple point for determination by the Munsif was whether the plaintiff had or had not established that the compromise had been effected by the alleged fraud. Each side called one witness and the Munsif held that the plaintiffs had not made out their allegations of fraud and dismissed the suit. When the case came before the Sub-Judge he took a course which I have frequently seen taken and against which I feel it my duty to protest. He made a mistake which is extremely common and which is the fruitful cause of immense and protracted litigation between parties. He came to the conclusion that the case involved the following questions: (1) Did the plaintiffs sign the petition of compromise without understanding the details of allotments? If so, was it due to any fraud on the part of Sahdeo Ram? (2) Do the two takhtas represent grossly unfair division? If so, are the plaintiffs likely to suffer material injury? (3) Was the partition decree given effect to? If so, did the defendants acting on the compromise decree make any improvement?