AI Structured Summary
Not yet generated for this judgment
Judgment
The instant petition has been filed against the order dated 14.10.2019, passed by the learned Sub Judge-I, Dumraon, in Misc. Case No. 02 of 2011, whereby and whereunder the learned Court below allowed the application dated 10.11.2011, filed by the respondents under Section 151 of the C.P.C., and thereby set aside the judgment and decree dated 10.08.1998 and 20.08.1998, respectively, passed in Title Suit No. 185 of 1997 on the basis of a compromise petition.
Heard learned counsel for both the parties.
Learned counsel for the petitioner submits that Title Suit No. 185 of 1997 was preferred on behalf of the petitioners, inter alia, seeking declaration of their title over the scheduled properties. Judgment and decree prepared in Title Suit No. 185 of 1997 was based on compromise deed dated 10.08.1998 with full consent and proper understanding of the concerned parties but the respondent out of greed filed the misc. case before the learned Court below after about 12 – 13 years. During the pendency of Misc. Case No. 02 of 2011, the petitioner, namely, Samsher Jang Bahadur Singh, passed away on 02.04.2016, leaving behind the respondents as his legal heirs and legal representatives. He was substituted by his legal heirs and legal representatives vide order dated 07.05.2016, all of whom have been impleaded as parties in the instant application. It is further submitted that the judgment and decree dated 10.08.1998 and 20.08.1998, respectively, passed in Title Suit No. 185 of 1997, specifically clears that the plaintiffs and defendants had agreed to settle the dispute by way of a compromise deed. The signatory to the compromise deed was also examined. The judgment and decree in Title Suit No. 185 of 1997 were prepared on the basis of the compromise deed dated 10.08.1998, with the full consent and proper understanding of the concerned parties. Learned counsel further submits that during the lifetime of the plaintiff of Title Suit No. 185 of 1997, no question was ever raised with regard to the validity of the compromise deed. The plaintiff, namely, Ram Pratap Singh, died on 14.09.2009, and it was only after about two years of his death, the respondents filed the Misc. Case. It is further submitted that the petitioner is differently abled since childhood and was adopted by Ram Pratap Singh vide registered adoption deed dated 01.09.2009. After the death of Ram Pratap Singh, the properties were mutated in the name of the petitioner, namely, Dhiraj Kumar @ Dhiraj Kumar Singh. Lastly, it is prayed on behalf of the petitioner that the order dated 14.10.2019, passed in Misc. Case No. 02 of 2011, be set aside.
Heard learned counsel for both the parties and perused the documents of the case record. From perusal of the impugned order dated 14.10.2019, passed in Misc. Case No. 02 of 2011 under Section 151 of the C.P.C., it appears that the said Misc. Case was filed seeking to set aside the judgment and decree dated 10.08.1998 and 20.08.1998, respectively, passed in Title Suit No. 185 of 1997 on the basis of a compromise petition, on the ground that the said compromise decree was not lawful rather it was obtained on the basis of collusion and fraud played upon the defendant of the title suit.
The aforesaid Title Suit No. 185 of 2017 was filed by Ram Pratap Singh against the petitioner of the misc. case with regard to Schedule ‘Kh’ (ख) land for correction of the Survey Khatiyan. It is submitted that, in the said suit, the service report of summons was also wrongly entered by the plaintiff, and the genealogy was also incorrectly mentioned, as only Ram Pratap Singh was shown to be alive. It further appears from the order-sheet of the said suit that the suit was admitted on 09.09.1997, but no notice was ever served upon the defendant/petitioner of Misc. Case No. 02 of 2011. It also appears from the records that, on 10.08.1998, a Vakalatnama on behalf of the petitioner was shown to have been filed through Advocate, Mr. Om Prakash Sah, and a compromise petition was also shown to have been filed. On the basis of the aforesaid compromise petition, an order was obtained in collusion, although the petitioner/defendant had never appeared in the said case. It is further submitted that the petitioner had neither executed any Vakalatnama in favour of Advocate Mr. Om Prakash Sah nor authorized Mr. Purushottam Singh to conduct the pairvi on his behalf. Thus, according to the submission of learned counsel, the compromise petition and Vakalatnama filed on 10.08.1998 are collusive in nature and are the result of fraud.
After examining all the facts and evaluating the evidences adduced on behalf of both the parties, the learned Court held that :-
“ 33. From the above oral and documentary evidence, it is clear that the compromise arrived in Title Suit No. 185 of 1997 is not lawful, because Samsher Jung Bahadur Singh, who was defendant, although this case, he has himself filed to set aside the compromise decree and his evidence was not been deliberately cross-examined by the Opposite Party, so his evidence has been valued on the admission u/s 33 of Indian Evidence Act and Puroshattam Singh, who is said to be the Pairvikar of Samsher Jang Bahadur Singh have not supported the case of Opposite Party and also no written authority has been granted by Samsher Jang Bahadur Singh for making pairvi for deposing in the Court, because Samsher Jang Bahadur Singh was the sole defendant in Title Suit No. 185 of 1997 and a compromise entry dt. 10.08.1998 lacks the requirements of procedure of C.P.C. as described above, because Ld. Advocated Om Prakash Sah has not identified the signature of Samsher Jang Bahadur Singh. Only Purshoattam Singh as Pairvikar has identified the signature, who has no written authority as provided under Act to make the compromise on behalf of Samsher Jang Bahadur Singh.
34.Accordingly, the compromise order dt. 10.08.1998 and decree dt. 20.08.1998 is not lawful, accordingly, same is set aside passed in Title Suit No. 185 of 1997. Because, Kamlesh Singh, who make the adopted son of Ram Pratap Singh wanted to grab the share of Samsher Jang Bahadur Singh with a view to ill motive. Therefore, this miscellaneous case is allowed. O/c is directed to deposit the record as per rule and send the original record of T.S. No. 185/1997 to the Record Room, Buxar.”
The alleged compromise petition has been annexed as Annexure-3, which shows the signature of Samsher Jang Bahadur Singh below the defendant’s column. The said signature has been identified by Purushottam Singh, stated to be the Pairvikar on behalf of the defendant, on the compromise petition, and on that basis, Om Prakash Sah, Advocate, has put his signature thereon. However, the defendant, namely, Samsher Jang Bahadur Singh, has categorically denied his signature appearing on the compromise petition and has also denied having authorized Purushottam Singh to act as his Pairvikar or having appointed Advocate Om Prakash Sah to file the compromise petition in Title Suit No. 185 of 1997. On behalf of the present petitioner, neither Purushottam Kumar Singh (Pairvikar) nor Om Prakash Sah (Advocate) has been produced. No prayer has even been made before the learned Court for their production so as to test the genuineness of the averments made by Samsher Jang Bahadur Singh. The aforesaid fact has also been specifically taken note of by the learned Trial Court in paragraph 15 of the impugned order :-
“15.This legal provisions shows that the appearance of the party in the court may either be a person, through agent and by pleader, but in this case the petitioner had denied that he have never given his Wakalatnama to advocate Sri Om Prakash Sah and never authorized Puroshattam Singh to file Wakalatnama on behalf of petitioner namely Shamsher Jang Bahadur Singh, it means the petitioner have denied the fact as above, but to controvert the same the Opposite Party have never examined Om Prakash Sah or Purushottam Singh, although it is presumption of correctness of order and judgment of the court, but a party is free to challenge the order and judgment of the court on the ground of fraud as provided U/s 44 of Indian Evidence Act. So, in this case fact alleged by the petitioner required to be controverted by the Opposite Party, but the Opposite Party has not done so, or also not investigated the signature of Shamsher Jang Bahadur Singh on the compromise petition.”
Learned counsel for the respondent also submits that compromise petition was also not taken and verified by Shrisetedar of the Court. This fact has also been taken notice vide para 11 of the Impugned Order of Misc. Case No. 02 of 2011, which reads as:-
“11.According to the petitioner Shamsher Jang Bahadur Singh has not entered into compromise petition dt. 10.08.1998, because according to the petitioner the Pairvikar Puroshottam Kr. Singh, who have filed the compromise petition on behalf of Samsher Jang Bahadur Singh have played fraud and it has also been stated and submitted through Wakalatnama filed in title suit no. 185/1997 that the Ld. Advocate Om Prakash Sah has filed the Wakalatnama on the identification of Purossotam Singh, said Puroshottam Singh had also been examined as a witness. Samsher Jang Bahadur Singh has not been examined in that case, the Ld. Advocate for the petitioner Sri Manish Kr. Sinha has also submitted that no check and report of the compromise petition has been done through the Shrisetedar of the court, who is the authority to check and report the compromise petition.”
Furthermore, if the present petitioner had a valid case that the compromise petition bearing the signature of Samsher Jang Bahadur Singh was valid and genuine, he ought to have prayed before the Court to examine the said signature by an expert and to prove the genuineness of the signature, he should have produced Purushottam Kumar Singh (Pairvikar) and Om Prakash Sah (Advocate). However, the present petitioner failed to do so in Misc. Case No. 02 of 2011.
So, at this juncture, the provision of Section 114(g) of The Indian Evidence Act, 1872 will apply in this case, which reads as :-
“That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;”
Further, the order sheet filed on behalf of Samsher Jang Bahadur Singh (respondent) shows that in Title Suit No. 185 of 1997, there was no service to summon to him.
All the aforesaid facts clearly suggest that the compromise petition filed in Title Suit No. 185 of 1997 was not fair and bona fide because it does not bear the genuine and valid signature of Samsher Jang Bahadur Singh. Accordingly, the learned Trial Court has rightly set aside the compromise order dated 10.08.1998 and the decree dated 20.08.1998.
So, there is no illegality and impropriety in the Impugned Order. Hence, the instant Civil Misc. No. 180 of 2020 stands dismissed.
However, before parting with this order, the petitioner is granted liberty to contest the Title Suit No. 185 of 1997 on its own merits, without relying upon alleged compromise petition, against the respondents. In that case, trial Court shall decide the above suit on its own merit.