SIDH GOPAL Vs. BEHARI LAL

JUDGEMENT

(1.) This Second appeal arises out of a suit brought by the plaintiff-respondent Behari Lal, against the defendant-appellant, Sidh Gopal, for recovery or a certain half share in zamindari property. The plaintiff was admittedly in possession of the other half share. There wore three brothers Behari Lal, the plaintiff, Nand kishore and Hargobind. Nand Kishore is the father of the defendant Sidh Gopal. He died 30 years ago. Hargobind died only four years ago, and it is the share of the zemindari property which he enjoyed during his lifetime that is the subject-matter of the present suit. The plaintiff Behari Lal's case is that Hargobind died separate from the others, and that he, as Hargobind's brother, has a preferential right to the property over his nephew Sidh Gopal. The defence of Sidh Gopal is that the deceased Hargobind and his father (afterwards himself) were joint and that Behari Lal was separate. This plea was rejected by both the lower Courts, and we are precluded by this finding of fact from considering it. Sidh Gopal also pleaded a family arrangement between himself and Behari Lal arrived at the time of Hargobind's death, whereby it was agreed that they should each take a moiety of Hargobind's property. The trial Court found in favour of this alleged settlement. The lower appellate Court has found against it. The question in this appeal is whether the finding of the lower appellate Court was a correct one.

(2.) The lower appellate Court has found that on Hargobind's death Behari Lal was claiming the whole of Hargobind's fractional share and Sidh Gopal was also claiming the whole of it. It found that Sidh Gopal had in law no title whatever as the evidence clearly showed that he was separate from Hargobind. It found, however, that the parties were advised by their community to settle the matter, and agreed to take the property of Hargobind half and half. In pursuance of this agreement they put in an application to the revenue Court that they should be entered jointly in the revenue papers. The lower appellate Court was of the opinion that this would have been a family settlement if there had been a bona fide dispute and a bona fide settlement. It held, however, that there was no bona fide dispute because bona fide dispute implies a bona fide claim by each party, and Sidh Gopal could have no belief in the validity of his claim. It, therefore, refused to acknowledge the settlement as a binding family settlement, and decreed the suit.

(3.) In appeal the appellant Sidh Gopal argues that the lower appellate Court was wrong in considering it necessary that Sidh Gopal's claim should have been based on some valid ground. His counsel urges that it is sufficient to say that there was dispute between the parties and that each party was determined to press his claim whatever its merits. With this reasoning I am disposed to agree. The learned Counsel for the respondent has taken the following grounds upholding the decision of the lower appellate Court.