BALLABH DAS Vs. SRI KISHEN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession of certain property. The plaintiff alleged that he was the adopted son of Munna Lal and attained majority within three years of the suit. The defendant denied that the suit was within time and that the plaintiff was the adopted son of Munna Lal. There was a further plea that there had been a family settlement between Munna Lal and defendant Ballabh Das according to which the defendant was entitled to retain a larger share than half in Mouza Tond. Apparently there was some compromise, between the parties. On 11 July 1922 the defendant filed an application setting forth the terms of an alleged compromise which had been, entered into between the parties. This however was not signed by the plaintiff. The matter came up before the Judge and the plaintiff was asked about it. He agreed that all the paragraphs were correct except para. No. 4 which related to village Tond. With regard to that the plaintiff gave a slightly different version of the compromise which had been arrived at between the parties. Thus there was a dispute between the parties with regard to the terms relating to Tond; but there was no dispute with regard to any other matter in dispute. Both the parties then made the following statement: "Whatever decision in respect of the plots in Khewat No. 12 of village Tond is given by the Court on the basis of the documentary evidence shall be accepted and agreed to by the parties. The parties shall not produce any oral evidence, but they should be given an opportunity of producing documentary evidence till 22 July, 1922." This agreement was duly signed by both the parties and by their vakils. After this the Court postponed the case to give the parties an opportunity to produce documentary evidence which they did. It then disposed of the case decreeing the suit in terms of the compromise of 11 July 1922 and a further decree for possession of 39.25 acres in Khewat No. 12 of Mauza Tond. The defendant submitted to this decree but the plaintiff appealed to the District Judge.

(2.) The first objection raised by the defendant was that the appeal was not competent in view of the agreement between the parties. The learned Judge however overruled this objection holding that the agreement merely amounted to a statement that they would not produce any oral evidence and it did not mean that they would not appeal from the decision. He then heard the case on the merits and came to the conclusion that the view taken by the Court below was wrong, and he accordingly modified the decree of the Court below. The last paragraph of his judgment indicates that there was some argument advanced before him pointing out to him that the adoption of Sri Kishen was not admitted by the defendant. He however, seems to have brushed the point aside apparently on the ground that it was Mt. Janki whose name was entered in 1908 and not Sri Kishen. This passage in the judgment is not quite clear and I shall come back to it later on.

(3.) The first point which I have to see is whether the view of the learned Judge as regards the competency of the appeal was correct or not. The answer to this question depends on the interpretation of the agreement between the parties. If the Court is certain that the intention of the parties was that whatever decision the Subordinate Judge arrived at should be binding upon the parties then there would be no right of further appeal. On the other hand if their intention merely was that they would not produce oral evidence but that the case should be decided on documentary evidence only, the right of appeal would remain intact. It seems to me that the learned District Judge has not attached due weight to the words shall be accepted and agreed to by the parties." A decision cannot be said to be accepted and agreed to by the parties if it is going to be appealed against in case they are not satisfied with it. The only meaning which I can attach to this expression is that it was intended that whatever decision the Court arrives at would be binding on them and would be conclusive, otherwise there would be no meaning in saying "shall be accepted and agreed to by the parties." If the agreement had merely stopped at saying that the case should be decided on documentary evidence the matter would have been quite different. That however was not the case here. This decision is further strengthened by the fact that as regards all other subject-matters in dispute the parties had compromised and the decree was in terms of the compromise. It therefore seems probable that they did not intend that there should be a fight about the other point in any higher tribunal. This case is similar on facts to the case of Shahzadi Begam V/s. Muhammad Ibrahim AIR 1921 All 310 decided by a Bench of this Court where the agreement provided "that the Court might find with reference to the documentary evidence produced in the case whether they were waqf properties or not; and the parties would be bound by such a finding." The Bench held that the parties could not go behind the finding of the Court and there was no right of appeal. It is contended on behalf of the respondent that the words in this reported case were stronger. But it is difficult to draw any valid distinction between the words parties would be bound by it" and the words "shall be accepted and agreed to by the parties." To my mind though the two expressions literally do not mean the same thing the intention conveyed by them is identical. This view is directly supported by the case of Sita Ram V/s. Peare .