Keja Bai vs Dayaram

Shivdayal, J.—This petition arises out of proceedings under O. 23, R. 3, C.P.C. The petitioner, Mst. Keja Bai, instituted a suit on October 15, 1956 against Dayaram for possession of 44-99 acres of land and a house in village Barekelkala, Tahsil Mahasamund. It was, alleged by her that the disputed land belonged to one Paltan who died on January 6, 1956. She succeeded to his estate as his widow and was in possession of the disputed property but taking undue advantage of her helplessness, the defendant forcibly took possession of the house and the land under, a false claim of being Paltan''s adopted son. She claimed to be the sole heir of Paltan. The defendant resised the suit alleging that he had been adopted by Paltan.

On February 21, 1958 which was fixed for the evidence of the parties, adjournment was requested by both sides as they had to attend a marriage. The case was fixed for July 19, 1958. On the last mentioned date the defendant filed an application that a compromise had been arrived at between the parties. This was denied by the plaintiff. The trail Judge recorded evidence and decided in favour of the defendant. The plaintiff went appeal but did not succeed.

The case as set out in the defendant''s application was that in village Choukbeda, Tahsil Mahasamund, the parties reached an oral compromise on April 2, 1958, where-by the plaintiff agreed to surrender the land to the defendant, accepting him as the adopted son of Paltan, while the defendant ageed to pay to the plaintiff a sum of Rs. 2,200/ and costs of the suit. On the following day the parties arrived, at Mahasamund where Bhujbal the plaintiff''s Mukhtar, purchased a two rupee stamp. The compromise was written on it and was left with the plaintiff to be produced in the Court on the date of hearing i. e. 19-7-58. The facts alleged in the application were challenged by the plaintiff as false and frivolous.

Dayaram defendant examined himself in support of the application and produced Maroti Rao (the stamp vendor); Bhujbal, (the plaintiff''s Mukhtar) and Gokuldas, (the scribe). Keja Bai plaintiff examined herself and denied that any compromise was arrived at or that, any stamp was purchased by her or that she, executed any compromise or any other document after the institution of the suit. Both the Courts below have particularly relied on the statement of Bhujbal, Keja Bai''s Mukhtar. According to his statement the compromise was that Dayaram would transfer 22 acres of land by a registered deed to Sukwaro and would pay Rs. 2,200-to Keja Bai and then Keja Bai would get the suit dismissed. This he stated both in the examination-in-chief as also in the cross-examination. But in the defendant''s application under O. 23, R. 3 there in no mention of the condition to transfer land to Sukwaro. (I am told by the learned counsel that she is Kejabai''s daughter). Secondly, it is averred in the defendant''s application that the plaintiff accepted that he (the defendant) was Paltan''s adopted son and also acknowledged that her marriage with Paltan had been dissolved. Bhujbal says nothing about it. The trial Judge said in conclusion.-

In the result I record the compromise and order that decree be drawn accordingly...

And the appellate Court dismissed the plaintiff''s appeal, affirming the judgment and decree of the trail Judge.

Now this brings about an unsurmountable difficulty. Dayaram and Bhujbal could not be simultaneously believed. When Bhujbal was believed, one of the terms of the decree should have been a transfer of 22 acres of land in favour of Sukwaro, in addition to the cash payment of Rs. 2200-to Keja Bai. But according to Dayaram he was only to pay Rs. 2,200-to Keja Bai. Which compromise was then to be recorded ? If Bhujbal was believed how cowld the condition of conveying 22 acres of land to Sukwaro be omitted ? If according to the defendant the only condition was to pay Rs. 2,200-to Keja Bai then the Court could not add to the terms. Without disbelieving one the other could not be believed. The trial Judge''s finding about Bhujbai''s statement is "The witness has given his evidence in a very straight forward manner. I am impressed that the evidence is true." That there is not even a mention of this amount in the judgment of the first Court is extremely surprising. Such a gravel and material discrepancy as to terms of the compromise could not possibly escape the judicial eye. And I would quote in verbation what the appellate Court says:-

It was also stated on behalf of the appellant that there is some discrepancy as to actual terms of the compromise between the statement of A. W. 1 and 9. On going although are statement, I find that there is no such discrepancy but on the whole, the main term was that the defendant shall pay Rs. 2,200-to the plaintiff who was to give up all his rights to the property in suit

It is impossible to call it a judicial approach of a judicial finding. The manner in which the point was disposed of only speaks of the refusal to being the judicial mind to bear. When a subordinate Court refuses or avoids to consider a material point raised before it, its finding is not a judicial finding, it is arbitrary and this Court will ignore it. I am, therefore, bound to hold that the finding of the Courts below was reached without an application of the mind and the order recording the alleged compromise must be set aside.

It is now to be seen, whether the defendant''s application is really proved. The evidence of Marutirao, stamp vendor, is of no us. All that he states is that on 4-2-58 a stamp of Rs. 2-was purchased in the name of Kejabai through Bhujbal but he does not state the purpose for which it was purchased. Moreover according to Bhujbal, two stamps were purchased; not one. Gokul, the clerk of Mr. Thite claims to be the scribe of the alleged compromise deed. Mr. Thite was the plaintiff''s counsel in this suit. It is difficult to believe that without consulting Mr. Thite or without even bringing to his knowledge this compromise was written by his clerk. In cross-examination Gokul tried to explain this by saying that Mr. Thite was not there. When asked where he has been to, the witness expressed his ignorance of the fact. It is worthy of mention that the witness was not working with Mr. Thite at the time he gave his statement in these proceedings. MR. Thite was not produced by the applicant. Gokul''s testimony is unworthy of credence and must be discarded.

Adverting to Bhujbal''s evidance, several fuels are remarkable. This witness at first said that the compromise was reached at Barekelkala; later on he said that nothing took place at Barekelkala but the compromise was arrived at in village Choukbeda. If a compromise had really reached between the parties this discrepancy was not possible. Secondly, he stated that there were two conditions precedent, that is conveyance of 22 acres of land in avour of Sukwaro and payment of Rs. 22,00-to Kejabai. Neither Gokul nor Dayaram says so. Thirdly, according to him, two stamp papers were purchased one for Kejabai and the other for Dayaram; two documents were executed, one by Dayaram in favour of Sukwaro and the other by Kejabai; and both the documents were written by the same scribe namely, Gokul. All this Bhujbal stated in the examination-in-chief. He was not declared hostile. It is impossible to hold that Bhujbal''s statement corroborates Dayaram.

There is yet another circumstance which makes the story of the defendant suspicious. If the compromise was written on a stamp paper (or on two papers) on the 3rd April, at Mahasamund, one is at a loss to understand why it was not filed in the trial Court which is situated in Mahasamund itself. There was a long distance of time between 3-4-58 and 19-7-58. For all these reasons it must irresistibly be held that there is no reliable evidence of the alleged compromise.

This revision is, therefore, allowed, the order recording the compromise is set aside and, consequently, the decree which followed it and the order of the appellate Court are also set aside. The case shall now go back to the trial Judge for proceeding further with the suit according to law. The defendant shall pay to the plaintiff her costs in all the Courts in the proceedings under Order 23, Rule 3 Civil Procedure Code.