Patna High Court
Ram Ratan Lal & Anr vs Mahendra Pd.& Ors on 9 September, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.337 of 1988
Against the judgment and decree dated 21.05.1988 passed by Subordinate
Judge-VI, Patna in Title Suit No.39 of 1973/130 of 1983.
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Ram Ratan Lal & Anr
.... .... Defendant nos.1 and 2-Appellants
Versus
Mahendra Prasad & Ors
.... .... Plaintiffs-Respondents
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Appearance :
For the appellants : Mr. Chitranjan Sinha, Sr. Advocate.
Mr. Radha Mohan Pandey, Advocate.
Mr. Jitendra Kishore Verma, Advocate.
Mr. Anjani Kumar, Advocate.
For respondent no.1 : Mr. T.N. Maitin, Sr. Advocate.
Mr. Abhay Kumar Thakur, Advocate.
For respondent no.7 : Mr. Bhanu Pratap Singh, Advocate.
Mr. Jharkhandi Upadhyay, Advocate.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
C.A.V. JUDGMENT
Date: 09-09-2014
The defendant nos.1 and 2 have filed this first appeal
against the judgment and decree dated 21.05.1988 passed by the
learned Subordinate Judge-VI, Patna in Title Suit No.39 of
1973/130 of 1983 whereby the court below decreed the plaintiff-
respondent no.1‟s suit for partition to the extent of 1/3rd share.
2. The plaintiff-respondent no.1 filed the aforesaid suit
claiming 1/3rd share in the suit property alleging that one Mewa Lal
had four sons and one daughter, namely, Ram Narayan Lal, Shyam
Lal, Radhe Krishna Lal and Basudeo Lal. The name of the daughter
was Smt. Janak Kishori Devi. The original plaintiff no.1 Rajmati
Patna High Court FA No.337 of 1988 dt.09-09-2014
2
was the widow of Ram Narayan Lal and plaintiff no.2 is the son of
Ram Narayan Lal. The plaintiff no.1 died. The branch of Shyam Lal
became extinct on the death of his daughter Sona Yadav @ Devi,
who was defendant no.5. The branch of Radhe Krishna Lal also
became extinct on the death of his widow and daughter prior to
institution of the suit. The fourth son died leaving behind his two
sons, Ram Ratan Lal and Manohar Lal, who are defendant nos.1 and
2-apepllants and two daughters, namely, Sushila Devi (defendant
no.3) and Kanti Devi(defendant no.4-respondent no.7 herein). The
daughter of Mewa Lal, Smt. Janak Kishori Devi was married with
defendant no.6 and Janak Kishori Devi was defendant no.7. On the
death of defendant no.7, her heirs have been substituted. According
to the plaintiff, Ram Narayan Lal died in jointness with the plaintiffs
and defendant nos.1 to 5 on 28.08.1971. Shyam Lal died on
31.05.1970. Radhe Krishna Lal died on 23.06.1952. Basudeo Lal died on 16.10.1971. Janak Kishori Devi, the daughter of Mewa Lal is not entitled to any share in the property of Mewa Lal as Mewa Lal died 23-24 years ago. The plaintiffs-defendant nos.1 to 5 are the members of the joint family wherein the defendant no.1 is the Karta. On the death of Ram Narayan Lal, the defendant no.1, the Karta, refused to give share and even to maintain the plaintiffs. The plaintiffs have got 1/3rd share, the original defendant no.5 has got Patna High Court FA No.337 of 1988 dt.09-09-2014 3 1/3rd share and 1/3rd share belonged to defendant nos.1 to 4.
3. The defendant nos.1 and 2-appellants filed contesting written statement. The defendant no.5 supported the plaintiffs‟ case and prayed for separate allotment of her 1/3rd share. The defendant nos.6 and 7 also filed contesting written statement. According to the defendant no.5, the defendant nos.6 and 7 have no right, title and interest or possession over the suit property. The Bajidawa dated 24.05.1972 alleged to have been executed by her in favour of defendant no.7 is fraudulent, inoperative, invalid and illegal and no title has been created in favour of defendant no.7.
4. According to the defendant nos.1 and 2, the plaintiff no.1 is not the widow and plaintiff no.2 is not the son of Late Ram Narayan Lal. Mewa Lal died on 06.12.1948 in state of jointness with his four sons. There is no joint family of the plaintiffs on one hand and the defendant nos.1 to 5 on the other nor the properties are in possession of the plaintiffs along with these defendants. The suit properties belonged to and are in possession of defendant nos.1 and 2 and Smt. Sona Devi. In fact Ram Narayan Lal was married with one Smt. Parwati Devi @ Lalia, daughter of Sri Govind Bhagat but there was no issue. She became traceless before 26-27 years ago. Since Ram Narayan Lal had no issue, he bequeathed his properties and executed a deed of Will on 18.04.1971 in favour of defendant Patna High Court FA No.337 of 1988 dt.09-09-2014 4 nos.1 and 2. The plaintiffs have been set up by Kamta Prasad, who is on inimical terms with the defendants. Plaintiff no.1 is in fact the widow of Bulak Gope and plaintiff no.2 is the son of plaintiff no.1.
5. However, the case of these defendants is that because of sudden death on Ram Narayan Lal and their father Basudeo Lal, these defendants became nervous and were not in a fit state of mind to look after the properties, as such the defendant no.6 consoled the defendants and on his advice the defendants agreed to execute a Power of Attorney but the defendant nos.6 and 7 fraudulently got executed Bajidawa in the garb of Power of Attorney. The alleged Bajidawa, i.e. the deed of disclaimer dated 24.05.1972 is fraudulent, illegal, invalid and ineffective and did not create any right, title and interest in favour of defendant nos.6 and 7. The defendants are in possession of the property and are collecting rents from the tenants. The custody of the original title deed was obtained by defendant nos.6 and 7 fraudulently by misrepresenting the fact. The defendants have filed Probate Case No.89 of 1972.
6. The case of the defendant nos.6 and 7, in short, is that the Holding Nos.121 to 125, Circle No.17 of Patna Municipal Corporation are the exclusive property of defendant no.7, who is in exclusive possession of the holdings. The Holding Nos.121 and 122 were acquired by defendant no.7 in the name of her own brother Patna High Court FA No.337 of 1988 dt.09-09-2014 5 Late Shyam Lal under a registered deed of lease deed dated 09.03.1954 for a consideration of Rs.6,000/- from Smt. Labanya Prova Mitra. Shyam Lal was only a Benamidar. The defendant no.7 also acquired Holding Nos.123, 124 and 125 by registered sale deed dated 23.03.1948 for a consideration of Rs.47,000/- in the name of Mewa Lal. The father Mewa Lal is only a Benamidar. The defendant no.7 is Pardanasin lady and defendant no.6 was in Railway service, therefore, the properties at Patna were acquired in the name of her father and brother. On their death the defendants entrusted the defendant nos.1 and 2 who used to manage the property. Sona Yadav and Basudeo Lal were anxious to execute Bajidawa and ultimately Bajidawa was executed on 24.05.1972 by Sona Devi with respect to Holding Nos.121 and 122 because these Holdings were purchased in the name of Shyam Lal, the father of defendant no.5. The defendant nos.1 and 2 executed another Bajidawa with respect to Holding Nos.123, 124 and 125 as the property was purchased in the year 1948 in the name of Mewa Lal.
7. On the basis of the aforesaid pleadings of the parties, the court below framed the following issues:-
(i) Is the suit, as framed, maintainable?
(ii) Have the plaintiffs got any cause of action for the suit?
(iii) Is the genealogy as given in the plaint correct?
(iv) Are the properties as described in item no.5 to 9 of Schedule-2 of the plaint the personal Patna High Court FA No.337 of 1988 dt.09-09-2014 6 properties of defendant no.7 and not of joint family properties?
(v) Are the plaintiffs entitled to partition of the properties if so in respect of which properties and to what share?
(vi) Are the plaintiffs entitled to relief or reliefs as claimed?
8. The trial court came to the conclusion that the original plaintiff no.1 is the widow and plaintiff no.2 is the son of Ram Narayan Lal. So far Holding Nos.121 to 125 are concerned, the trial court decided the question of Benami and recorded a finding that defendant no.7 has got title and it is her exclusive property. Accordingly, the trial court decreed the plaintiffs‟ suit.
9. Learned senior counsel Mr. Chitranjan Sinha for the appellants submitted that although originally the appellants denied the relationship/parentage of plaintiffs with Ram Narayan Lal. The parties compromised with the intervention of their well-wishers and a compromise application was filed. The appellants admitted the facts of relationship of the plaintiffs. After hearing both the parties this Court has already recorded the compromise by terms of order dated 14.03.2012 whereby the compromise application, i.e. I.A. No.7323 of 2009 is accepted. It is observed that the compromise between the appellants and respondent no.1 will not affect any right, title and interest of the respondents, who are not signatories. Therefore, in view of the compromise between the appellants and Patna High Court FA No.337 of 1988 dt.09-09-2014 7 respondent no.1 now there is no dispute between them regarding the question of relationship. The only dispute now remains to be decided is as to whether in a simple suit for partition filed by respondent no.1 the question of title of defendant no.7 could have been investigated by the court without there being any counter claim or without payment of any court fee for recovery of possession, as the defendant no.7 admitted the possession of appellants over the suit property. The learned counsel further submitted that it is admitted fact even according to the written statement of defendant no.7 that the suit property, i.e. Holding Nos.121 to 125 stand in the name of coparceners, i.e. one in the name of Mewa Lal and the other in the name of Shyam Lal. Admittedly Mewa Lal died in the year 1948, i.e. prior to coming into force of Hindu Succession Act, 1956.
10. In such circumstances, so far defendant no.7 is concerned, she being the daughter of Mewa Lal cannot be considered to be the coparcener and she had no interest in the property. Whatever defence has been taken by defendant no.7 regarding Benamidar of the coparcener is concerned, is entirely a foreign question to be decided in a simple suit for partition and in fact the dispute between the coparcener was with respect to the relationship/parentage of the plaintiffs with Ram Narayan Lal. After compromise this question has now become admitted by the Patna High Court FA No.337 of 1988 dt.09-09-2014 8 appellant, therefore, it needs no decision. In view of the above facts now the only dispute between the coparcener has already been resolved by compromise. The dispute which has been raised by defendant no.7 is against the coparcenary family. Merely because she is added as defendant no.7, this question raised by her against coparcenary family cannot be decided in a simple suit for partition and defendant no.7 is not entitled for declaration of her title without filing counter claim or without payment of ad-valorem court fee and admittedly till today she has not filed any title suit.
11. Mr. Chitranjan Sinha the learned senior counsel further submitted that the question of Benami has also been decided wrongly by the trial court without considering the settled principle of law regarding the passing of consideration. In the year 1948 the sale deed was executed for Rs.47,000/- and in the year 1954 the lease deed was executed for Rs.6,000/- whereas the only source of income of the defendant no.7 is said to be the savings from the money given by defendant no.6. The defendant no.6 was employed in railway service in the year 1947 and was getting Rs.400/- per month and within less than one year he purchased the property for Rs.47,000/-. The court below on the basis of assumption and presumption relied upon the source of income and wrongly recorded the finding that the consideration was paid by defendant no.7. Patna High Court FA No.337 of 1988 dt.09-09-2014 9 According to the learned counsel, mainly the court below relied upon the Bajidawas (Ext.C and C/1) without considering the fact that the case of defendant no.5 and the defendants-appellants is that these Bajidawas were fraudulently obtained by defendant nos.6 and
7. In fact the appellants have filed Title Suit No.89 of 1975 for declaration to that effect with respect to Ext.C and C/1 which is still pending but the court below in the present suit relied upon these two exhibits and recorded the finding that the appellants have admitted that the consideration was paid by defendant no.7.
12. The learned counsel further submitted that unfortunately in the trial court the appellants could not produce any evidence, therefore, in this Court an application under Order 41 Rule 27 of the Code of Civil Procedure has been filed for taking additional evidence being I.A. No.4024 of 2012. The various documents annexed with this interlocutory application show that in fact the appellants are in possession of the disputed holdings. They were filing eviction suits against the tenants and taking delivery of possession of the suit premises in execution cases but still today no steps have been taken by defendant no.7. According to the learned counsel the documents filed by the appellants for taking additional evidence are necessary for just decision of the case and the court has the jurisdiction for the ends of justice to consider the same in view Patna High Court FA No.337 of 1988 dt.09-09-2014 10 of the decision of the Hon‟ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin & Anr., reported in 2013 (1) P.L.J.R. 48 (SC).
13. So far the Bajidawa is concerned, the learned counsel submitted that by admission title will never pass and moreover the admission is alleged to have been made by appellants and defendant no.5 which will not be binding on the plaintiffs. If it is not binding on the plaintiffs then it cannot be now said that it will be binding so far the appellants are concerned and it will not be binding so far the plaintiffs are concerned because the admission is regarding payment of consideration by defendant no.7. In such circumstances only on the basis of admission it could not have been held by the court below that transactions are Benami transactions particularly when it will also affect the right, title and interest of the plaintiff-respondent no.1. Regarding Benami transaction the learned counsel relied upon the decision of the Hon‟ble Supreme Court in the case of Bhim Singh and another Vs. Kan Singh, reported in A.I.R. 1980 SC 727. On these grounds the learned counsel submitted that if the first point that in a suit for partition the question of title of defendant no.7 could not have been investigated is answered in favour of the appellants then the other findings are not required to be gone into because so far the validity or genuineness Patna High Court FA No.337 of 1988 dt.09-09-2014 11 of Ext.C and C/1 is the subject matter of title suit filed by the appellants wherein the matter is to be decided effectively.
14. The learned senior counsel Mr. T.N. Maitin for the plaintiff-respondent no.1 submitted that whatever admission has been made by defendant nos.1 to 5 will not be binding on the plaintiff. The main defence of these defendant nos.1 and 2 was that the plaintiff-respondent no.1 is not the son of Ram Narayan Lal. Now after compromise they admitted this fact, therefore, this dispute has been resolved. So far Benami transaction claimed by defendant no.7 is concerned, the plaintiff never admitted anywhere that the property was purchased by defendant no.7 or that Mewa Lal or Shyam Lal was the Benamidar. Admittedly both the title deeds are registered documents stand in the name of coparcener, therefore, it is for the defendant no.7 to get her title declared in a properly constituted suit but in the present case the admission or no admission made by the defendants inter-se will not be binding on the plaintiff-respondent no.1. The dispute as to whether Ext.C and C/1 is illegal, fraudulent or not is between defendant nos.1 to 5 in one side and defendant no.7 in the other side, i.e. this dispute is inter-se dispute between the defendants and the plaintiff has got no concern with the same. Moreover, the defendant no.7 is a stranger to the coparcenary family. In such circumstances when the dispute was Patna High Court FA No.337 of 1988 dt.09-09-2014 12 between the coparceners themselves, i.e. one case set up by one coparcener in one side and the other case set up by the other coparceners as defendants in the other side, was the main issue in the suit and so far the case set up by defendant no.7 is against the all coparceners which could not have been decided by the trial court in this suit without there being any counter claim. According to the learned counsel even the signature of the appellants on Ext.C and C/1 was never marked as exhibit in the case and these alleged admissions were even not confronted to the plaintiff, so in view of the decision of Hon‟ble Supreme court in the case of Sita Ram Bhau Patil Vs. Ramchandra Nago Patil and another, reported in A.I.R. 1977 SC 1712 the so-called admission cannot be read against the plaintiff.
15. Learned counsel Mr. Bhanu Pratap Singh appearing on behalf of the respondent no.7 submitted that the brothers (appellant nos.1 and 2) have partitioned all the properties without giving any share to respondent no.7, who was defendant no.4. She is the sister of the appellants, therefore, she has got share in the property but they refused to give any share to her. In such circumstances, her right, title and interest cannot be defeated by compromise between the appellants and respondent no.1, as such her interest should be protected.
Patna High Court FA No.337 of 1988 dt.09-09-2014 13
16. In view of the above rival contentions of the parties, the point arises for consideration in the present first appeal is as to whether the question of Benami raised by defendant no.7 could have been decided by the trial court in the partition suit filed by respondent no.1? As admitted by the parties before this court if this point is answered against the appellants then the next point will arise for consideration is as to whether Mewa Lal and Shyam Lal were the Benamidars of defendant no.7 or not?
17. It may be mentioned here that the defendant no.7 did not appear before this court to contest the appeal although the appeal notice has validly been served on her. Admittedly Mewa Lal had four sons and one daughter. Mewa Lal died prior to coming into force of the Hindu Succession Act, 1956, therefore, his daughter Janak Kishori Devi had no title and interest in the property of Mewa Lal. Likewise, she is also not an heir of Shyam Lal. It is admitted fact that the sale deed is in the name of Mewa Lal and the lease deed is in the name of Shyam Lal. Therefore, it has become now admitted that the suit property is in the name of one or the other coparcener consisting of the joint family, namely, Ram Narayan Lal, Shyam Lal, Radhe Krishna Lal and Basudeo Lal and/or their heirs.
18. So far the daughter Janak Kishori Devi is concerned, she is not the coparcener and she has no interest in the Patna High Court FA No.337 of 1988 dt.09-09-2014 14 joint family property. The partition suit has been filed by one coparcener against the other coparcener claiming 1/3rd share. Since Janak Kishori Devi is not a coparcener, she is a third party to this simple suit for partition. This third party, i.e. Janak Kishori Devi is claiming independent title over the Holding Nos.121 to 125. Since she is a third party, who was made defendant and she has not filed any counter claim, her title to the disputed holdings cannot be decided unless it is declared that the transaction made in the year 1948 and in the year 1954 in the name of Mewa Lal and Shyam Lal are Benami transactions. Nowhere still today the plaintiff prayed for any such declaration. In such circumstances, in the garb of defence the Benami nature of the transaction of the year 1948 and 1954 cannot be decided in a simple suit for partition that too at the instance of a third party. This declaration of title claimed by defendant no.7 is entirely different than the disputes between the coparceners in the simple suit for partition. Therefore, while deciding the inter-se dispute between the coparceners, the dispute vis-à-vis coparceners as a whole and the defendant no.7 cannot be decided in this suit.
19. Order I Rule 10 (2) of the Code of Civil Procedure reads as follows:-
(2) Court may strike out or add parties:-The Court may at any stage of the proceedings, either upon Patna High Court FA No.337 of 1988 dt.09-09-2014 15 or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
20. This provision has been considered by the Supreme Court in the case of Kasturi Vs. Iyyamperumal and others, reported in (2005) 6 Supreme Court Cases 733, the Hon‟ble Supreme Court has held that from a plain reading of expression „all the questions involved in the suit‟ used under Order I Rule 10(2) of the Code of Civil Procedure it is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the litigation must be gone into, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiffs or the defendants inter se or questions between the parties to the suit and a third party.
21. In the present case, as discussed above, Janak Kishori Devi is a third party so far the simple suit for partition between coparceners is concerned. As such she was not a necessary Patna High Court FA No.337 of 1988 dt.09-09-2014 16 party at all for deciding the suit for partition filed by the plaintiff- respondent no.1. The court below should have, therefore, exercised the jurisdiction under Order I Rule 10 (2) of the Code of Civil Procedure and should have struck off the name of defendant nos.6 and 7 because they are not coparceners and they will not get any interest in the property unless the declaration about nature of the transaction of the year 1948 and 1954 is declared to be Benami transaction.
22. As stated above no such relief was ever sought by the said defendants-respondents. In such circumstances in the partition suit filed by one coparcener, the relief which was never claimed by defendant nos.6 and 7 could not have been given to them by the trial court. As soon as the court came to know the defence that the defendant no.7 is claiming independent title de-hors, the dispute between the coparceners, the court below could not have decided this dispute between the coparceners and the defendant no.7.
23. In the case of Parwati Devi and Ors. Vs. Chandradip Rai & Ors., reported in 2014 (2) P.L.J.R. 569 this Court followed the decision of the Supreme Court in the case of Kasturi (supra) and held that the decree of the trial court holding that interveners have title over the suit property is wrong and Patna High Court FA No.337 of 1988 dt.09-09-2014 17 without jurisdiction. The fact of that case is that in that case the interveners were added as party and defendants were claiming independent title whereas in the present case the defendant no.7 has been made party in the plaint.
24. Further in the present case, Ext.C and C/1 produced by defendant no.7 in support of her claim that she is the real owner of the property show that it is not executed by the plaintiff. From perusal of the evidence of the plaintiff it appears that the so-called admission made by appellants and defendant no.5 in these ladavi deeds was never confronted to the plaintiff. Moreover, the plaintiff has not admitted anywhere that the defendant no.7 is the real owner. In such circumstances, whether there was any admission made by appellants who were also defendants, in favour of the defendant no.7 or not, is inter-se dispute between the defendants and defendants. In such circumstances, this inter-se dispute between the defendants also could not have been decided in the present case particularly when it is the specific case of the plaintiff as well as the appellants and the defendant no.5 that these ladavi deeds are fraudulent deeds. The appellants have also filed Title Suit No.89 of 1975 for declaration of fraudulent nature of the ladavi deeds.
25. In the case of Sita Ram Bhau Patil Vs. Ramchandra Nago Patil and another, reported in A.I.R. 1977 Patna High Court FA No.337 of 1988 dt.09-09-2014 18 SC 1712 the Supreme Court has held that "an admission is relevant and it has to be proved before it becomes evidence. The provisions in the Evidence Act that 'admission is not conclusive proof' are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule. Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him." In the present case the appellants did not adduce any evidence, therefore, there is no question of confronting to the appellants arises but there was conflicting interest according to the written statement filed by the appellants between the plaintiff and the appellants. Therefore, under Section 18 of the Evidence Act also the so-called admission cannot be utilised against the plaintiff.
26. In view of my above discussions, I find that the court Patna High Court FA No.337 of 1988 dt.09-09-2014 19 below has wrongly decided the questions of title claimed by defendant no.7 and also wrongly decided the nature of transaction without there being any counter claim made by defendant no.7, who is neither a coparcener nor claimed any such relief for declaration of her title anywhere. This question of title claimed by defendant no.7 as defence in her written statement could not have been decided by the trial court in the present suit for partition. Therefore, the first point is decided in favour of the appellants. The genuineness or otherwise, i.e. regarding the fraudulent nature of Ext.C and C/1 is the subject matter of Title Suit No.89 of 1975. Therefore, the said question also could not have been decided in this present suit. It will be decided in that suit and moreover this question relates to the question of title of defendant no.7.
27. In view of my above finding the question of Benami transaction does not arise for decision in the present first appeal.
28. The interlocutory application filed by the appellants, i.e. I.A. No.4024 of 2012 is an application under Order 41 Rule 27 of the Code of Civil Procedure. This interlocutory application has been filed by the appellants seeking permission to adduce additional evidence. With the interlocutory application various documents have been annexed. The learned counsel for the appellants submitted that since transaction the appellants are in possession of the holdings Patna High Court FA No.337 of 1988 dt.09-09-2014 20 and they have filed eviction suits and then execution cases and have taken delivery of possession and they are receiving rents till date, therefore, the said documents are necessary for decision in the present case. So far this interlocutory application is concerned, it relates to the consideration regarding the nature of transaction of the year 1948 in the name of Mewa Lal and in the year 1954 in the name of Shyam Lal. I have already found above that this question of Benami transaction has been raised by a third person, who is not a coparcener and not an heir of either Mewa Lal or Shyam Lal, the same cannot be decided and the same could not have been decided by the trial court. The documents annexed with this interlocutory application are not required for decision of the point in this first appeal. Accordingly, this interlocutory application is disposed of.
29. So far I.A. No.3092 of 2012 is concerned, it has been filed by respondent no.7 Kanti Devi, who was defendant no.4 in the court below. The prayer has been made that during the pendency of the first appeal the appellants and the respondent no.1 may not sell or alter the nature of the property. Since the first appeal is being heard and judgment is delivered, no separate order is passed because now the first appeal is being disposed of. Accordingly, this interlocutory application is also disposed of.
30. So far the submission of learned counsel Mr. Bhanu Patna High Court FA No.337 of 1988 dt.09-09-2014 21 Pratap Singh for respondent no.7 that respondent no.7 has not been given any share in the property is concerned, it may be mentioned here that she is the sister of the appellants. Still today, she has not claimed any relief for partition of the property of the share of Basudeo Lal. The appellants are the sons of Basudeo Lal. If she is entitled to a share, she may claim in a appropriate proceeding. So far the compromise arrived at between the appellants and plaintiff- respondent no.1 is concerned, it will not be binding on the respondent no.7 because it is settled principles of law that compromise is nothing but a contract between the parties. Therefore, the terms and conditions in the contract will be binding on the parties to the contract and not the third party. Admittedly respondent no.7 has not signed the compromise, therefore, the compromise between the appellants and respondent no.1 will not be binding on respondent no.7. The same order has been passed by this court on 14.03.2012 while considering the compromise application.
31. In the result, this appeal is allowed. The judgment and decree passed by the court below with regard to Benami transaction and with regard to declaration of title of defendant no.7 is hereby set aside. The finding either recorded by the trial court with regard to the question of title of defendant no.7 or the finding recorded by this court with respect to the said question will not Patna High Court FA No.337 of 1988 dt.09-09-2014 22 prejudice any party in any proceeding pending between them. Accordingly plaintiff‟s suit for partition is concerned, it is decreed in terms of compromise recorded on 14.03.2012. The compromise application shall form part of the decree.
(Mungeshwar Sahoo, J) Harish/-
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