Kapildeo Singh v. Jay Govind Singh (Minor)

.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shyam Narayan Pandey For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 6 30-01-2013 Heard Mr. Rajendra Narain, the learned senior counsel appearing on behalf of the appellant in support of this appeal. The defendant is the appellant in this appeal against the judgment of affirmance by the appellate court upholding the decree of the suit in favour of the plaintiffs. The plaintiff filed the suit for declaration of their title over the suit land and further for declaration that the compromise filed in the consolidation appeal No. 973 of 1983-84 was illegal and not binding on the plaintiffs. The basic facts are not in dispute that the suit property originally Patna High Court SA No.718 of 2010 (6) dt.30-01-2013 2 belonged to one Chirkut Singh, and Rekha Devi was the wife of Chirkut Singh.

It is the case of the plaintiffs that Ramdei was the daughter of Chirkut Singh and she was married with Bali Singh. Bali Singh had two sons namely Kapildeo Singh who was defendant no. 1 in the suit and is the appellant in this appeal, and Mahesh Singh who was defendant no. 2 in the suit and is respondent no. 6 in this appeal. The plaintiff nos. 1 to 4 are minor sons of Mahesh Singh and the plaintiff no. 5 is the mother of the plaintiff nos. 1 to 4 and wife of defendant no. 2. The plaintiffs have claimed that after the death of Chirkut Singh, his widow Rekha Devi inherited the suit property. Rekha Devi executed a gift deed dated 15.06.1964 for the suit property in favour of Bali Singh. Later on, Bali Singh by gift deed dated 05.10.1982 transferred the suit property in favour of the plaintiffs, who were his minor grand sons, and Ram Dular Singh who was his major grand son. It is not in dispute that Ram Dular Singh died issueless and his widow has also died.

The plaintiffs have claimed their title over the suit property on the basis of the gift deed by Bali Singh The plaintiffs have further claimed that the compromise decree in consolidation appeal no. 973 of 1983/84 is not binding on them as they were minors and no permission as required under Order 32 Rule 3 C.P.C. had been obtained before the compromise. The Patna High Court SA No.718 of 2010 (6) dt.30-01-2013 3 defendant no. 1 contested the claim of the plaintiffs and has set up the invalidity of the two gift deeds. He has further claimed that he is also entitled, being a son of Bali Singh, to have a share in the property and the compromise decree passed in consolidation appeal no. 973 of 1983/84 was fully binding and has been acted upon by the parties. The defendant no. 2 has not contested the suit. Both the courts below after considering the pleadings and evidence of the parties, have reached to the concurrent finding that the two gift deeds are valid and the plaintiffs have got title over the suit property on that basis and further that the compromise decree passed in consolidation appeal no.

973 of 1983/84 is not binding upon the plaintiffs. The suit has been decreed and thereafter the appeal has been dismissed. Mr. Rajendra Narain, learned senior counsel appearing on behalf of the appellant has firstly submitted that the suit itself was not maintainable as the consolidation proceeding was going on when the suit was filed and therefore the bar under Section 4 (B) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 was fully attracted. It has been further urged by the learned senior counsel that both the courts below have wrongly come to the conclusion that the gift deeds were valid documents and the compromise decree passed in Patna High Court SA No.718 of 2010 (6) dt.30-01-2013 4 consolidation appeal no.973 of 1983/84 which has been fully acted upon, is not binding upon the plaintiffs. To bolster his submissions, the learned senior counsel has also placed the portions of the impugned judgment of the appellate court and urged that substantial questions of law arise for consideration in this appeal.

From the perusal of the impugned judgments of both the courts below, it does not transpire that the plea of the maintainability of the suit in view of the pending consolidation proceeding has been raised by the defendant. The learned senior counsel has also expressed his inability to produce material to show that such plea has ever been raised in the suit. The fact remains that the defendant-appellant appeared in the suit and contested the same after leading evidence and has also filed an appeal after the judgment and decree in the suit had gone against him. In the appellate courts below also the defendant-appellant did not raise the plea that the proceeding of the suit was barred under Section 4 (B) of the Consolidation Act rather from the impugned judgment of the appellate court, it appears that the defendant- appellant had full-fledgedly pursued the appeal taking a chance of the judgment going in his favour on merits.

In this view of the mater, it cannot be proper to allow the appellant to raise the issue of bar under Section 4 (B) of the Consolidation Act at the second Patna High Court SA No.718 of 2010 (6) dt.30-01-2013 5 appellate stage for the first time. The principle in this regard has been well settled by a bench of this Court in the case of Jai Prakash Prasad Vs. Rameshwar Prasad, A.I.R. 1986 Pat. 239. Even other wise also the controversies between the parties centered around the validity of the gift deed as well as the validity of the compromise deed which from the case set up by the defendant-appellant do not appear to be void transactions in view of the allegations of fraud and misinterpretation. The consolidation authorities cannot be said to have such jurisdiction to adjudicate upon the validity of the gift deed as well as the validity of the compromise deed and set aside the same in view of the facts as pleaded.

On merits, it transpires that the appellant had earlier filed T.S. No. 223 of 2005 assailing the gift deeds in favour of the plaintiffs and has failed to obtain the relief as prayed. The appellate court below has taken into notice the order (Ext.-7) passed in T.S. 223 of 2005, on contest, rejecting the plaint and it has been further found on the basis of Ext. 8 and Ext. 9 that the said order has been upheld in appeal and also in revision before this Court. It has, thus, been rightly held that the issue regarding the validity of the gift deeds has stood concluded between the parties. Both the courts below have also held that the compromise Patna High Court SA No.718 of 2010 (6) dt.30-01-2013 6 decree passed in consolidation appeal no. 973 of 1983/84 was vitiated for want of the permission under Order 32 Rule 3 C.P.C. by the court before recording the compromise on behalf of the minors also. The findings recorded by both the courts below are based upon meticulous examination of the pleadings and evidence of the parties and no perversity in the same could be established. The issues arising between the parties are now concluded by the concurrent findings of facts. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)