Sankhtha Singh vs Smt. Sushil Devi
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 1566 of 1978
 

 
Appellant :- Sankhtha Singh
 
Respondent :- Smt. Sushil Devi
 
Counsel for Appellant :- Sri Ram Surat Singh,A.N. Bhargava,Ajit Kumar,M. Singh,M.K. Singh,M.N. Singh,S.K. Singh,V.K. Singh,Vinod Kumar Singh
 
Counsel for Respondent :- Ashu Verma,Dr. Vinod Kumar Rai
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Ait Kumar, Advocate for appellant and Sri Ashok Kumar Singh, Advocate holding brief of Dr. Vinod Kumar Rai, Advocate for respondent.

2. This is a defendant's Second Appeal under Section 100 C.P.C. arising from judgment and decree dated 13.02.1978 passed by Sri J.B. Singh, IVth Additional District Judge, Mirzapur in Civil Appeal No. 90 of 1977, whereby Lower Appellate Court (hereinafter referred to as "LAC") has allowed appeal and judgment and decree dated 12.08.1977 passed by Sri Vimal Kishore, the then IVth Additional Munsif, Mirzapur in Original Suit No. 159 of 1971 has been set aside and suit for cancellation of compromise decree dated 07.01.1970 of Revenue Case No. 39/182/7 of 1968 has been decreed.

3. The appeal was admitted by treating grounds No. 1, 2, 3, 4, 7 and 9 as substantial questions of law and the same may be reproduced as under:

"1. Whether it is settled view of law that the admission is a best piece of evidence and as such the statement of plaintiff-respondent under Order 10 Rule 2 Civil Procedure Code admitting the fact that at the time of filing of compromise which was prepared in the presence of her brother and Mama and which was duly verified by his counsel, she was present there and that was read over and explained to her, is being on the plaintiff-respondent, the view contrary taken by the Lower Appellate Court has absolutely no legal justification?

2. Whether it is settled view of law that even a compromise decree operates as estoppel between the parties and the plaintiff-respondent having acted upon on basis of said decree, cannot be claimed to deny the effect of the said decree?

3. Whether admittedly in any view of matter the village Manikpur, she had a claim for only 6 bighas of land but having been given in the compromise decree 9 bighas of land and the entire 9 bighas of land being sold by the plaintiff-respondent and recital of the sale deed itself makes it clear that she has entered into compromise and accepting the same, she has transferred the entire land.

4. Because Rama Shankar Singh Advocate was also her counsel in the previous revenue suit who signed the compromise and verified the plaintiff-respondent, had also been her counsel in the present suit as well, therefore the compromise was arrived at with the consultation and advise of the counsel in whom the plaintiff-respondent has still got confidence therefore there is no question of practicing any fraud on the plaintiff-respondent in arriving at the compromise?

5. Whether the plaintiff's case was that after the death of her father-in-law Batul Singh, she was allotted in private partition 14 bighas of land and she was in possession has only been corroborated by Chhote Lal who according to own statement was not present there at the time of alleged partition and therefore she has miserably failed to prove the standing set up by her?

6. Whether the view taken by the learned Lower Court, that a compromise needs registration, is manifestly erroneous inasmuch no fresh right was created and it was not a transfer and as such no requirement of registration?" (emphasis added)

4. Facts, in brief, giving rise to this appeal are that Mrs. Sushila Devi filed a Regular Suit No. 39/182/7 of 1968 under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "Act, 1950") arraying Sankatha Singh as defendant, for division of joint properties. Aforesaid suit was decreed on 07.01.1970 on the basis of a compromise decree dated 07.01.1970. Pursuant to said compromise decree Sushila Devi executed a sale deed dated 22.04.1970 for part of property.

5. Thereafter Sushila Devi instituted Original Suit No. 159 of 1971 in the Court of Munsif, Mirzapur impeading Sankatha Singh son of Batuk Singh as sole defendant vide plaint dated 25.03.1971 for cancellation of compromise decree dated 07.01.1970 passed in Suit No. 39/182/7 of 1968.

6. Plaint case set up by plaintiff giving family tree, is as under:

 
Ram Alam Singh
 
/
 
Batuk Singh
 
________________/________________
 
		       /                                                            /
 
		Chillar Singh			          Sankatha Singh
 
	        Sushila Devi (wife)
 

 
7.	Sri Batuk Singh was Cultivator-Bhumidhar of land in List 'A' given at the bottom of plaint and Cultivator-Sirdar of the land given in List 'B' at the bottom of plaint. The land given in List 'A' and 'B' is as under:
 
	"Bhumidhari- Nos. 222-2 Bigha 12 Biswa, 267-1 Bigha 3 Biswa, 379/1-3 Bigha 16 Biswa Jumila 3 Gata, Area 7 Bigha 11 Biswa, Rent Rs. 36.94 yearly. 
 
	Sirdari- 276-11 Biswa, 277/ 1-6 Biaswa, 262/ 1-6 Biswa, 387-1 Bigha 14 Biswa, Jumila 4 Gata, Area 3 Bigha 1 Biswa, Rent Rs. 43.49."
 

8. Plaintiff's husband, Chillar, died during life time of Batuk Singh. Batuk Singh subsequently died in October, 1965. Thereafter his property was equally succeeded, as Bhumidhar and Sirdar, by plaintiff and defendant. A partition suit was filed by plaintiff under Section 176 of Act, 1950 in Revenue Court registered as Suit No. 39/182/7 of 1968, Sushila Devi vs. Sankatha Singh. Defendant persuaded plaintiff stating that litigation will take time and would be a waste of money and time and in the meantime plaintiff may also lose possession of property, therefore, for bringing harmony and peace in the family, they may enter into a compromise. Plaintiff, a widow lady, having no issues and also illiterate, in good faith and also in probability of having her separate property received, agreed for compromise and thereafter suit was compromised on 07.01.1970 and decreed accordingly.

9. Defendant did not give possession of property which came to the share of plaintiff as per compromise and instead made attempt to get his name recorded for entire property. Plaintiff having no option and also to avoid any litigation, executed a sale deed dated 22.04.1970 in respect of a property which came to her share in terms of compromise, in favour of Shanker Lal, Bachau Ram and Bachhi Lal sons of Ram Murat, resident of Mauja Niyamatpur Kala, Pargana Haveli, Tehsil Chunar, District Mirzapur. Defendant is threatening of getting the sale deed cancelled by manufacturing a forged sale deed through his brother-in-law. Defendant since beginning was trying to defraud plaintiff and fraudulently got compromise entered on 07.01.1970.

10. Defendant-appellant (hereinafter referred to as "Appellant") contested suit by filing written statement dated 25.11.1971. The compromise decree was admitted and rest allegations regarding fraud, misrepresentation etc. were denied. He pleaded that compromise was entered voluntarily and plaintiff was represented through her counsel, Rama Shanker Singh, Advocate and Court after verifying compromise, decreed suit in terms of compromise, hence suit is barred by estopple, acquiescence, res judicata and even otherwise not maintainable.

11. Subsequently an amendment application dated 17.03.1973 was also filed by plaintiff seeking amendment in plaint which was allowed vide order dated 14.11.1973 and amendment was incorporated.

12. Trial Court formulated following six issues:

"(1) Whether the decree based on compromise dated 7.1.1970 in case no. 39/182/7 of 1968 is liable to be cancelled as alleged in plaint.

(2) Whether the Court has no jurisdiction to try this suit?

(3) Whether the suit is barred by the principle of estoppel and acquiescence?

(4) Whether the suit is barred by the principles of resjudicata.

(5) Whether no cause of action has accrued to the plaintiff.

(6) To what relief, if any, is the plaintiff entitled?"

13. Issue-2 was considered as preliminary issue and decided in favour of plaintiff vide order dated 02.06.1976. Issue-1 was considered thereafter and Trial Court examined oral evidence which comprised of plaintiff herself as PW-1, Chhhote Lal as PW-2 and Akshaibar Singh as PW-3 while appellant's oral evidence comprised of statement of Sankatha Singh as DW-1. PW-1 admitted that compromise was prepared by her maternal uncle and Sankatha Singh, whereupon she put her thumb impression. DW-1 in his statement said that on the date of compromise plaintiff was accompanied by, Lal Bahadur Singh who was doing pairavi of her case and Akshaibar Singh was not present at that time. Compromise was read over by Sri Rama Shanker Singh, Advocate, to plaintiff who was her counsel and thereafter it was verified and compromise decree was passed. On the question, whether compromise was obtained by fraud, Trial Court considered that plaintiff admitted that she was present in the Court on 07.01.1970 when compromise was verified by Court. She was represented by Advocate, Sri Rama Shanker Singh who is real brother of Sri Lal Bahadur Singh, who was pairokar of her case. Plaintiff also used aforesaid compromise decree dated 07.01.1970 in another Revenue Case, i.e., Revision No. 2 of L.R. 71/72, filed in Board of Revenue on 25.11.1972, and on that basis entire property of Village Niyamatpur was directed to be entered in the name of appellant. Under the compromise, plaintiff got nine bigha land and same was sold by her through a sale deed dated 22.04.1970 stating that she is residing at her parents place at Mirzapur and this sale deed shows that compromise dated 07.01.1970 was executed by plaintiff herself. Trial Court also considered that compromise as per own statement of plaintiff was prepared by Sri Harkhoo Singh, plaintiff's maternal uncle and defendant, Sankatha Singh. On the date of compromise Harkhoo Singh and his brother-Akshaibar Singh were also present. Plaintiff did not examine her maternal uncle, Harkhoo Singh though he was alive. Akshaibar Singh, PW-3 also admitted that Lal Bahadur Singh is real brother and was Attorney Holder of plaintiff-Sushila Devi for doing pairavi of her case and also to look after her business. He admitted that in his presence no partition has taken place. Plaintiff also did not produce his counsel, Sri Rama Shanker Singh who admittedly was her counsel and read over compromise to her. Grounds for compromise, therefore, were not found substantiated by plaintiff and hence Trial Court answered Issue-1 against plaintiff.

14. Issue-3 was also answered in favour of appellant relying on Supreme Court's decision in Sailendra Narayan Bhanja Deo Vs. State of Orissa, AIR 1956 SC 346. Issues-4 and 5 were answered in negative. In view of findings recorded in respect of Issue-1, Trial Court dismissed suit vide judgment and decree dated 12.08.1977.

15. Thereagainst plaintiff preferred Civil Appeal No. 90 of 1977. LAC framed following four points for determination:

"1. Whether any private partition between the parties had taken place after the death of Batuk Singh and thereby the plaintiff-appellant enjoyed the cultivatory possession over 9 Bighas of land of Manikpura and Bighas 5-3-6.5 of land of Niyamatpur Khurd?

2. Whether the consent of the plaintiff-appellant for the compromise, dated 7.1.1970 was obtained by fraud? If so, its effect?

3. Whether Ex. A6, the compromise, dated 7.1.70 is partly illegal and void also? If so, its effect?

4. Whether the claim of the plaintiff-appellant is barred by the principles of estoppel and acquiescence?" (emphasis added)

16. First point was answered in favour of plaintiff holding that private partition between parties had taken place after about one year from the date of death of Batuk Singh and thereby plaintiff was given nine bigha land of Village Manikpura and 5 bigha 3 biswas and few biswanshies of land from largest plot of Village Niyamatpur Khurd. Point-2 has also been answered in favour of plaintiff and against appellant observing that plaintiff, an illiterate lady, has clearly denied that compromise was read over and explained by any person in the Court and thereafter onus shifted upon appellant to show that entire transaction was in good faith which he has failed to prove inasmuch as he has examined only himself and chose not to examine Sri Rama Shanker Singh, Advocate who represented plaintiff and also one Mauni Ram of the same village who was also present when compromise was said to have been read over and explained to plaintiff. LAC has further held that compromise ipso facto is very unreasonable and unfair inasmuch as total agricultural land possessed by Batuk Singh in four villages measured about 28-6-6 bighas. Besides, family also possessed ancestral house, Sahan land, Chabootara and bamboo clumps in the village Niyamatpur. Plaintiff was given less than 1/3 agricultural land and no share in Abadi establishment. Therefore, compromise dated 07.01.1970 do not inspire any confidence. There is no subsequent conduct of plaintiff to show that she has accepted compromise dated 07.01.1970 and the mere fact that she executed sale deed dated 22.04.1970 transferring land measuring about 3-16-0 bighas of plot no. 79 of Village Niyamatpur giving reference to compromise in question to Sanker Lal and his brothers, does not affect her case at all. Mere mention of word "Tasdeek Kiya", in verification clause of compromise, cannot be allowed to any camouflage any fraudulent act of the parties. It held, therefore, that compromise dated 07.01.1970 was a result of fraudulent act of appellant by inserting certain facts in compromise, therefore, voidable at the option of plaintiff.

17. Considering Point-3 LAC also held that compromise was not registered; if it was a "family arrangement", it needed registration under Section 17 of Indian Registration Act, 1877 in view of this Court's decision in Nifikir and others vs. Dy. Director of Consolidation and others, 1978 ACJ All. 16 and Chandra Bhan Datt Ram Pandey vs. Jagdish Datt Ram Pandey, 1962 ALJ 404; neither parties nor Revenue Court are empowered to entertain compromise concerning non agricultural properties of Niyamatpur Khurd; and, compromise allowed to enshrine unauthorized manner of transfer of Sirdari rights by plaintiff to appellant in contravention of Act, 1950 and for this purpose LAC relied upon a Full Bench judgment of this Court in Dulli vs. Smt. Imarti Devi, 1966 RD 217. Point-3 was answered, therefore, in favour of plaintiff. Point-4 has also been answered in favour of plaintiff and consequently appeal was allowed; judgment and decree of Trial Court set aside and suit was decreed cancelling compromise dated 07.01.1970.

18. During pendency of appeal, plaintiff died and there was a dispute with regard to legal representatives/ heirs of plaintiff, hence matter was referred under Order 22 Rule 5 C.P.C. to Court below for determining heirs/ legal representatives of plaintiff-Smt. Sushila Devi. Vide judgment dated 27.04.2013 passed by Sri Avnish Kumar Rai, IVth Additional Civil Judge (Junior Division), Mirzapur, Dimpal alias Vikas Singh has been held legal representative of plaintiff on the basis of registered adoption deed dated 17.11.1997. I find that accepting Reference order, this Court has passed order dated 09.09.2013 allowing impleadment of Dimpal alias Vikas Singh as legal heir/ representative of plaintiff. I do not find that Recall Application No. 118599 of 2014 filed by appellant seeking recall of order dated 09.09.2013 is maintainable since order has been passed after hearing both parties, whereagaisnt only review application lies and no ground for review is made out. The Recall Application No. 118599 of 2014 is hereby rejected.

19. In my view Questions-1, 3, 4, 5 and 6 can be considered together. Regarding validity of compromise, it is an admitted fact that before Revenue Court plaintiff was represented by Advocate, Sri Rama Shanker Singh. He was the same person who represented her before Trial Court in Original Suit No. 159 of 1971 as also before LAC. Interestingly Plaintiff's pairokar was his brother Lal Bahadur Singh and he was real brother of Rama Shanker Singh. Thus as a matter of fact, plaintiff was represented through a counsel who was her brother. Plaintiff stated in her oral deposition that on the date of compromise she, her maternal uncle-Sri Harkhoo Singh and brother-Akshaibar Singh were present. Compromise was ascribed by plaintiff's maternal uncle and Sankatha Singh, appellant. She has further said that she put her thumb impression where she was so instructed by appellant and compromise was not read over to her. She has also expressed her ignorance whether her thumb impression was identified by her counsel Sri Rama Shanker Singh or not. In cross-examination, firstly she said that she do not remember the name of her counsel who represented in Revenue Court but then identified Sri Rama Shanker Singh and admitted that he was the same counsel who represented her in Revenue Court and she is acquainted with him for the last 8-10 years. I may remind that the counsel of plaintiff was her brother still she gave such negative reply initially but in subsequent cross-examination admitted. This shows her conduct. Then she further said that at the time when she put her signature in Court, her counsel was not present. Her statement is, therefore, contradictory at stages.

20. On the contrary record show that before passing compromise decree, Revenue Court also recorded statement of plaintiff on 07.01.1970, copy whereof is Exhibit A5 and she said as under:

^^cgyQ esokjke pijklh c;ku fd;k fd esjs llqj dk uke cVqd flag Fkk muds nks yM+ds fpYyj flag o ladVk flag FksA fpYyj flag esjs ifr Fks ftudk nsgkUr gks x;kA cVqd flag esjs llqj dks ejs djhc 3&4 lky gqvk cVqd flag ds ejus ds ckn eSa vkSj esjs nsoj ladBk flag okfjl gq,A ge yksxksa dk uke dkxtkr esa ntZ gks x;k gSA ge yksxksa esa lqyg ukek gks x;k gS tks nkf[ky gS blh ds vuqlkj ge yksxksa dk [kkrk vyx djds dkxtkr nq:Lr dj fn;k tkosA xkao lHkk ls futkbZ Hkwfe ls dksbZ okLrk ljksdkj ugha gSA lqygukek ds vuqlkj eSa vkSj ladBk flag vius vius dkV dh tehu ij dkfct nkf[ky gSaA**

"Mewa Ram, Peon stated on oath that name of my father-in-law was Batuk Singh and he had two sons namely, Chillar Singh and Sankatha Singh. Chillar Singh was my husband who has died. 3-4 years has passed since the death of my father-in-law, Batuk Singh and after his death I and my Dever (husband's brother) Sankatha Singh became heirs. Our names have been entered in record. We have entered into a compromise which has been filed and according to this compromise our Khatas should be separated and record be corrected accordingly. Gaon Sabha has no concern with disputed land. According to compromise I and Sankatha Singh are in possession of their respective shares of land." (English translation by Court) (emphasis added)

21. Compromise document (Exhibit A6) also shows that besides thumb impression of Sushila Devi, her Advocate also signed the same in Court. It is mentioned in the order of Revenue Court that the compromise was filed by parties' representatives and identification of plaintiff was duly made and verified by those representatives.

22. Statement given by plaintiff before Trial Court was clearly inconsistent to what is apparent from record and, therefore, to discard the document and contents thereof on the basis of subsequent contradictory deposition of plaintiff, it was necessary for LAC to examine, whether plaintiff has produced the best available evidence or not. When she said that at the time of putting her thumb impression in Revenue Court her counsel was not present, she could have produced the counsel as witness also since he was the same person who represented her in present proceedings also, and moreso her brother also, but she chose not to do so. Hence her statement ought to have been examined in this backdrop which, in my view, LAC has failed to examine. She has also admitted that compromise was got ascribed by appellant as well as her maternal uncle and that be so there was no reason that compromise document could have been manufactured or some otherwise conditions would have been mentioned therein by appellant who was not the sole person to get the compromise ascribed since plaintiff's own maternal uncle was also present there, as stated by plaintiff in her own statement.

23. At this stage I may also notice that order sheet of Trial Court shows that plaintiff and defendant both appeared before Court on 10.03.1976 and their statement under Order 10 Rule 2 CPC was recorded. Their statements read as under:

Statement of Plaintiff-

^^eSa fnukad 7-1-70 dks tqMhf'k;y vkQhlj dh vnkyr esa Lo;a vkbZ Fkh vkSj lqygukek nkf[ky fd;k FkkA bl lqygukesa dks vnkyr us rlnhd fd;k FkkA gekjs odhy ckcw jek'kadj th FksA ml fnu rglhy esa tkdj eSaus nj[kkLr ugha nh FkhA gekjs lxs HkkbZ yky cgknqj flag ml le; eqdnesa dh iSjoh ds fy, eq[rkj&vke FksA**

"I myself had gone to the Court of Judicial Officer on 07.01.1970 and filed compromise. This compromise was verified by the Court. Our counsel was Babu Rama Shanker Ji. I did not give any application after going to Tehsil. My real brother Lal Bahadur Singh was Mukhtar-e-Aam for pursuing the case at that time."

Statement of Defendant-

^^tqMhf'k;y vkQhlj dh vnkyr esa tks eqdnek py jgk Fkk og ekStk efuiqjk dh vkjkth ds ckor Fkk vkSj fdlh ds ckor ugha FkkA**

"The case which had been going on in the Court of Judicial Officer, was about a plot of Village Manipura and not in any other respect."

(English translation by Court) (emphasis added)

24. Further, Trial Court has also found that during trial, plaintiff's maternal uncle, Harkhoo Singh was alive but he was not produced for evidence. Plaintiff was represented through her counsel, her power of Attorney Holder was his brother and compromise document was prepared by appellant as well as plaintiff's maternal uncle. In these facts and circumstances, plaintiff's contention that she is an illiterate lady, by itself was not sufficient and it was incumbent upon her to discharge onus that all the persons who represented her or were looking after her matter, played fraud and did not discharge duties in bona fide manner. Therefore, heavy onus lay upon plaintiff to prove her case which she has failed inasmuch as neither she produced her counsel, Sri Rama Shanker Singh as witness nor maternal uncle, Sri Harkhoo Singh, who was alive nor even Lal Bahadur Singh, who was her power of Attorney Holder and doing pairavi of her case.

25. LAC has also held that there was a private family arrangement between parties but I do not find any such factual pleading in the plaint. In absence of any such case pleaded by plaintiff, neither any evidence could have been adduced on this aspect nor LAC could have made out a new case to hold that there was already a private family settlement between parties. Hence, finding recorded by LAC that compromise was entered by playing fraud with plaintiff by relying on this alleged private settlement is illegal. When there was no such pleading, no evidence could have been entertained on a fact not pleaded and at appellate stage, no new case could have been made out either by the parties or the Court.

26. I also find that there is no pleading by plaintiff that compromise document was not read over to plaintiff by the persons who ascribed it or that her counsel Sri Rama Shanker Singh was not present when thumb impression of plaintiff was obtained on compromise document and without these pleadings only on the basis of statement of plaintiff in her oral deposition, which too are self contradictory inasmuch as on the one hand she tried to conceal the name of counsel who represented her in Revenue Court but in further cross-examination had to admit that she was represented by same counsel who represented her in Trial Court also, in my view LAC should have looked into this aspect before relying on the statement of PW-1 before recording a finding that compromise document was not read over to plaintiff. When a plaintiff has come before a Court seeking cancellation of compromise decree on the ground that it was obtained by fraud, burden to prove that compromise was obtained by playing fraud, lie upon plaintiff and reverse burden could not have been laid upon defendant to prove that compromise was obtained in bona fide manner and there was no fraud. In the present case LAC has not proceeded in that way. Here, only document before Court below was the compromise decree dated 07.01.1970 which was sought to be cancelled on the ground of fraud and said decree was exempted for registration Section 17 of Act, 1877, it was incumbent upon LAC to carefully examine evidence adduced by plaintiff to prove her case but instead LAC had shifted burden upon defendant-appellant and, therefore, has erred in law.

27. In view thereof, I answer Questions-1, 3, 4, 5 and 6 in favour of appellant and against plaintiff-respondent.

28. Coming to Question-2, in my view, question of estoppel is not relevant to be examined when a suit for cancellation of a decree is filed on the ground of fraud. The only issue which is to be seen is, whether plaintiff is successful in proving that compromise was obtained by playing fraud or not. However, as an additional aspect which is to be considered against plaintiff's claim of alleged fraud, it has brought to the notice of Court by appellant that in terms of compromise, plaintiff has subsequently acted upon and her conduct shows that she has proceeded further in terms of compromise. That is one of the aspect, relevant to consider the claim of plaintiff, whether compromise was obtained by fraud or not inasmuch as once she has acted upon in terms of compromise decree and proceeded to deal in other transactions as per compromise decree, it is a very relevant factor to show that compromise was not obtained by fraud and everything was in the knowledge of plaintiff. In this view of the matter, I answer Question-2 also against plaintiff-respondent.

29. In view of above, judgment passed by LAC reversing Trial Court's judgment and decreeing suit cannot be sustained. Appeal is allowed. Judgment and decree dated 13.02.1978 passed by LAC is set aside and judgment dated 12.08.1977 passed by Trial Court is confirmed.

30. No costs.

Order Date :- 28.03.2019

AK