SHEO SINGH Vs. RASGIT SINGH

JUDGEMENT

(1.) It appears that in a partition suit which is pending in the Court of the Subordinate Judge at Muzaffarpur a petition was filed by all the parties on the 6th June 1933 asking for time on the ground that the parties were likely to arrive at an amicable settlement of their differences and fix their respective pattis. A pattibandi, or a sheet showing the pattis allotted to the parties, was filed before the Commissioner on the 7 August 1933. This paper was signed by plaintiff No. 1 and not by plaintiff No. 2 who is his brother, but there is no doubt that it purports to be the record of a compromise arrived at by all the parties concerned. On the 15 September 1933 a petition was filed on behalf of plaintiff 1 and plaintiff 2 alleging that the signature of plaintiff 1 on the pattibandi had been obtained fraudulently by defendant 2 on the assurance that the plaintiffs would get a patti to their own liking.

(2.) Plaintiffs 1 and 2, as I have said, are brothers, and it is not denied that plaintiff 1 is the karta of the family and it was not alleged in the petition that plaintiff 2 was unaware of the contents of the petition of the 6 June or that plaintiff 1 had signed against the wishes of the latter. The learned Subordinate Judge, apparently overlooking the fact that the only question to be considered before him was whether the alleged compromise was one fit to be recorded or not under Order 23, Rule 3, proceeded to deal with the matter under Section 151 of the Civil P. C, which is manifestly a section to be resorted to only when no other section of the Code is available. It appears that upon enquiry the learned Subordinate Judge was not satisfied that plaintiff 1 had signed the pattibandi papers simply on the representation of defendant 2 and without knowing their contents, and his final conclusion was that there was some sort of settlement arrived at between the parties who signed the said petition and pattibandi papers and those were the result of that settlement, but probably on a second thought plaintiff 1 did not like the pattibandi and that is why the present application has been filed.

(3.) Notwithstanding this finding he allowed the plaintiffs application upon a point which was not taken in the petition before him, namely, that plaintiff 1 had not been legally authorised by plaintiff 2 to sign the pattibandi on his behalf. The learned Subordinate Judge, though he concedes that plaintiff 1 was the karta of the family did not proceed to enquire if plaintiff 1 alone had been signing other papers also in connection with the proceedings. In fact I find that the application under Section 151, which is the basis of his order, has been signed only by plaintiff 1, and it appears that plaintiff 1 signed it on his own behalf as swell as on behalf of plaintiff 2.