Back
PATNA HIGH COURT
K.Ahmad, J.
Nand Lal Mahton
Versus
Naubat Mahton
Appeal From Appellate Decree No. 423 of 1962 ; 471 of 1962 ;
Decided On : SEPTEMBER 04, 1964
COMPROMISE DECREE - BINDING EFFECT - MORTGAGE - ADVERSE POSSESSION - AMENDMENT OF PLAINT - RES JUDICATA.
Fact of the Case:
The dispute relates to two holdings in Patna, originally owned by Bandhu Mahto, who had four sons. After a partition between two of the sons, the holdings fell to the joint share of Fakira Mahto and Chowa Mahto. Fakira died issueless, and his share passed to Chowa by survivorship. Chowa and his son Naubat Lal executed a sale deed in favor of Mewa Mahto, who died leaving behind his son Ramnarayan. Ramnarayan sold the holdings to Bhagwatia, who mortgaged them to Antu Singh and Ramautar. Ramautar assigned the mortgage to Khadera Hajam. Chowa and Naubat Lal filed a suit for a declaration that the sale deed to Mewa Mahto was a sham transaction and for recovery of possession. The suit was dismissed, and Naubat Lal appealed. During the pendency of the appeal, a compromise was reached, and the suit was decreed in terms of the compromise. Bhagwatia died issueless, and Ramnarayan sold the holdings to Nandlal. Nandlal filed a suit for redemption of the mortgage, and Naubat Lal filed a suit for declaration of title and confirmation of possession. The trial court decreed Nandlal's suit and dismissed Naubat Lal's suit. Both parties appealed.
Finding of the Court:
The lower appellate court affirmed the finding of the trial court that the compromise petition was genuine and that a compromise decree was passed. However, it reversed the finding of the trial court and held that Khadera Hajam had acquired the right of a mortgagee by adverse possession. It dismissed Nandlal's suit and decreed Naubat Lal's suit, subject to the mortgage interest of Khadera Hajam.
Issues: 1. Whether the compromise decree passed in the earlier suit was binding on Bhagwatia and her husband Ramnarayan? 2. Whether Khadera Hajam had acquired the right of a mortgagee by adverse possession? 3. Whether the court below erred in allowing the amendment of Naubat Lal's plaint? 4. Whether the decision in the claim case filed by Khadera Hajam operated as res judicata against Naubat Lal on the question of title?
Ratio Decidendi: 1. The court held that the compromise decree was binding on Bhagwatia and her husband Ramnarayan. It relied on the presumption under Section 114 of the Evidence Act that the court was satisfied that a valid compromise was arrived at when the decree was passed. The court also noted that there was no allegation of fraud or deception in the compromise, and that Naubat Lal had not proved that the decree was obtained by fraud or deception. 2. The court held that Khadera Hajam had acquired the right of a mortgagee by adverse possession. It relied on the finding of the lower appellate court that Khadera Hajam had been in possession of the holdings as a mortgagee for more than 12 years, and that Naubat Lal had not taken any steps to assert his title during that time. 3. The court held that the lower appellate court did not err in allowing the amendment of Naubat Lal's plaint. It relied on the rule that a court can allow amendments to pleadings that are necessary for determining the real question in controversy between the parties. The court also noted that the amendment did not change the cause of action or the subject matter of the suit. 4. The court held that the decision in the claim case filed by Khadera Hajam did not operate as res judicata against Naubat Lal on the question of title. It relied on the rule that there is no res judicata between co-defendants unless it is found that the point involving res judicata has to be necessarily decided in that suit between them.
Final Decision: The court dismissed Nandlal's appeal and decreed Naubat Lal's appeal, subject to the mortgage interest of Khadera Hajam.
K.Ahmad, J.
1. The dispute in both the cases giving rise to these appeals relates to a common property. It consists of two holdings hearing Nos. 48 and 60 within the jurisdiction of the present Patna Municipal Corporation. Originally both these holdings were the property of one Bandhu Mahto. Bandhu Mahto had four sons (].) Fakira Mahto, (2) Chowa Mahto, (3) Gaja Mahto and (4) Mewa Mahto. Some fitly years back before the institution of the present suits, there was a partition effected in the family of Bandhu Mahto between Fakira Mahto and Chowa Mahto on one side and Gaja Mahto and Mewa Mahto on the other. That means, as between Fakira Mahto and Chowa Mahto on one side and Gaja Mahto and Mewa Mahto on the other, there was no severance of status inter se In the course of that partition the two holdings in suits are admitted to have fallen to the joint share of Fakira Mahto and Chowa Mahto. So far, therefore, there is no dispute between the parties. But subsequently there was a registered deed of sale executed on 24-11-1909 in respect of these holdings both by Fakira and Chowa in favour of Mewa Mahto and it is this deed of sale which is mainly responsible for the present litigation between the parties,
It appears that thereafter but of course before 1931, Fakira died issueless and on his death all the properties jointly owned by Fakira and Ghowa came exclusively to the latter by survivorship. According to Chowa and his son Naubat Lal, the aforesaid deed of sale dated 24-11-1909 was a sham and farzi transaction and therefore, it did not convey and title to Mewa. In the meantime, Mewa died sometime before 1928 leaving behind him his sole surviving son Ramnarain as his heir and successor. This Ramnarain was married to Bhagwatia to whom he had, on the death of his father, sold these holdings in suit under a registered deed of sale dated 18-12-1928.
Therefore, in 1931 there was a suit brought by Chowa and his son Naubat Lal both against Ramnarain and his wife Bhagwatia for a declaration that the aforesaid deed of sale dated 24-11-1909 was a sham and farzi transaction and that the same did not convey any title to Mewa Mahto or to his heir and successor. Therein there was also a prayer made for recovery of possession, It was numbered as Title Suit No. 15 of 1931. The trial court on contest dismissed that suit on 24-4-1933. In the meantime Chowa Mahto died. Therefore against that judgment there was an appeal taken by Naubat Lal alone which was numbered as Title Appeal No. 77 of 1933. While that appeal was still pending for disposal, there was, according to Naubat Lal, a compromise arrived at between all the parties and in support thereof a petition was also filed on behalf of all of them on 27-10-1933. Accordingly thereafter on 13-11-1933 the appeal was disposed of in terms of the compromise petition and the suit which was originally dismissed at the trial was thereafter decreed.
2. In the meantime during the pendency of this litigation, a number of transfers had already been effected in respect of these two holdings firstly by Bhagwatia and thereafter on her death by Ramnarain as her heir and successor. The first transaction made by Bhagwatia was on 21-4-1932. It was a simple mortgage in favour of one Antu Singh. Thereafter on 1-4-1933 she executed a rehan deed in favour of one Ramautar and thereunder the previous mortgage under the document dated 21-4-1932 was satisfied. Subsequently Ramautar on 16-2-1936 assigned this rehan deed to one Khadera Hajam. These transactions were, however, obviously hit by the rule of lis pendens. Therefore, if the aforesaid deed of sale dated 24-11-1909 was a sham and faizi transaction and did not convey any title to Mewa Mahto, as was ultimately held by the compromise decree given in the aforesaid Title Appeal No. 77 of 1933, neither the predecessor-in-interest of Ramnarayan nor the transferees under the aforesaid mortgage document dated 21-4-1932 and the rehan deed dated 1-4-1933 got any title in
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
