Dilip v. Mahadeo

thereby confirming the judgment and decree passed by the 2nd Joint Civil Judge, Junior Division, Kallam dated 12-01-2001 in R.C.S. No. 246 of 1990. 2 sa496.07

The Counsel appearing for the appellant invited my attention to the grounds taken in the appeal memo, annexures thereto and other documents and submitted that, in view of the compromise decree in R.C.S. No. 26 of 1994, principle of lis-pendence will come into operation and therefore, the decree passed in R.C.S. No. 26 of 1994 was binding on the respondent herein. It is submitted that, the said suit was decreed and in the said suit, oral partition arrived between the parties namely Rajabhau and the plaintiff has been approved by the trial Court. It is submitted that, in view of the compromise decree in R.C.S. No. 26 of 1994 and in view of the fact that, the suit property was partitioned and the said property was allotted to the plaintiff in compromise decree, question of selling the said property by Rajabhau in favour of the respondent would not arise. It is submitted that, R.C.S. No. 26 of 1994 was filed on 23-01-1984, alleged sale deed was executed on 27-01-1984, suit was compromised and compromise decree came to be passed on 13-03-1984. 3 sa496.07 Therefore, according to the Counsel for the appellant, outcome of R.C.S. No. 26 of 1984 binds the respondent here and therefore, the appellant herein was entitled for relief of declaration and possession. Therefore, the Counsel for the appellant relying upon the grounds taken in the appeal memo, annexures thereto submits that, the second appeal deserves consideration.

On the other hand, learned Counsel appearing for the respondent submit that, decree in R.C.S. No. 26 of 1984 was collusive decree. If the said compromise decree was passed on 13-03-1984, Rajabhau was aware about the sale of the suit property to the respondent herein. If the said property was sold, Rajabhau had no right or authority to enter into compromise about the said property which was already sold by him on 27-01-1984. It is further submitted that, the provisions of Section 52 of the Transfer of Property Act have application, if the suit is not collusive, however, in the present case, said 4 sa496.07 compromise decree was collusive and therefore, said decree would not bind the respondent. It is further submitted that, R.C.S. 41 of 1984 was decreed and the respondent was declared as owner of the suit property and injunction was also granted in favour of the respondent and that judgment and decree in the said suit attended finality, since there was no challenge to the said judgment and decree by the appellant. The Counsel for the respondent placed reliance upon the concurrent findings recorded by the Courts below and submits that, the second appeal is devoid of any merits and same may be dismissed.

Upon hearing the Counsel for the parties and upon perusal of the findings recorded by the Courts below, I am of the considered opinion that, the findings recorded by the Courts below are in consonance with the evidence brought on record and the law provisions which are relevant in the matter. Firstly, it is not in dispute that the suit property was purchased by the respondent on 5 sa496.07 27-01-1984. Said compromise decree in R.C.S. No. 26 of 1984 is dated 13-03-1984. If Rajabhau had sold the suit property on 27-01-1984, said Rajabhau had no power, authority or right to enter in to the compromise about the said property. Besides, the Court has also observed that, the said property was self acquired property of Rajabhau since it was purchased by Rajabhau and his brother in the year 1979. It is also not in dispute that, R.C.S. No. 41 of 1984 came to be decreed in the month of August 1984 whereby declaring the respondent as owner of the suit property and since the said judgment and order is not assailed by the appellant before the higher Court, has attended finality and therefore, declaration remains intact that the respondent is owner of the suit property.

The assertion of the appellant that, there was oral partition in the month of November 1983 between the appellant and respondent Rajabhau is difficult to be believed and both the Courts 6 sa496.07 have held that, there was no such partition and compromise decree in R.C.S. No. 26 of 1984 was collusive decree and therefore, there was no question of applying principle of lis pendence in the present matter.

Therefore, viewed from any angle, the concurrent findings recorded by the Courts below are not perverse and rather those are in consonance with the evidence brought on record. That apart, the Counsel for the respondent is justified in canvassing that the plaintiff was not competent to file suit through mother in view of provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956.

For the reasons aforesaid, I do not find any substance in the second appeal. The second appeal is devoid of any merits, same stands dismissed. Consequently, civil application stands rejected. [S.S. SHINDE, J.] sut/MAR12