FIRST APPEAL No. 190 OF 1996

Against the Judgment/ Order dated 22.03.1996 and the final decree

passed by Sri Mahendra Narain Singh, Subordinate Judge-I, Patna in

Title Partition Suit No.37 of 1994.

AMARENDRA KUMAR ………. Plaintiff/Appellant

Versus

SMT.ANJALI DEVI

……… Defendant /Respondent

********

For the Appellant

:

Mr. A. B. Ojha, Advocate,

Mr. Nirmal Chandra, Advocate,

For the Respondent :

Mr. R. K. P. Singh, Advocate,

Mr. Balbhushan Chaudhary, Advocate,

Mr. Amrendranath Vishames, Advocate.

Dated : 5^th day of January, 2011.

P R E S E N T

THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO

J U D G M E N T

1.

This First Appeal is directed against the Judgment/ Order dated

22.03.1996 recording compromise and the final decree signed on 06.04.1996

by Sri Mahendra Narayan Singh, the leaned Subordinate Judge-I, Patna in Title

Partition Suit No.37 of 1994.

2.

It appears that originally the defendant No.1, Devnandan Singh, had

filed this Appeal. On his death, the present appellant, Amrendra Kumar, who

was respondent No.1 in this First Appeal, was transposed as sole appellant.

This Amrendra Kumar is son of original appellant Devnandan Singh. The

present appellant Sri Amrendra Kumar filed aforesaid partition suit claiming

Mungeshwar

Sahoo, J.

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1/5^th share in Schedule I and II properties mentioned in the plaint. In the said

suit, the defendant No.1 was father of the plaintiff, i.e., Sri Devnandan Sinha.

The said Devnandan Sinha defendant No.1 had two wives, namely, Smt. Anjali

Devi and Smt. Chandrakanta Sinha who were defendant-respondent No.2 and

3. The 3 sons from the second wife Chndra Kanta Sinha are the plaintiff-

appellant Amrendra Kumar and defendant-respondent No.4 and 5, namely, Dr.

Nirmal Kumar and Devendra Kumar respectively.

3.

It appears that on 27.09.1995 an alleged compromise application

was filed which was signed by both the parties. This compromise application is

a part of the decree under challenge. In paragraph 4 and 5 of the said alleged

compromise application, it is stated as follows :

“4. That the plaintiff, defendant No.1, 2, 3, 4 and 5 have jointly

agreed that till the date of the final petition, after fulfilling the

above obligations is not filed before this Hon’ble Court, the

parties shall be entitled to receive all the benefits, which they are

receiving from their respective holdings under their possession

from before this compromise petition.

5. That this compromise petition is filed before this Hon’ble Court

to keep it on record and no order shall be passed until and unless

all the aforesaid conditions are fulfilled.”

4.

In the prayer portion of the said compromise application, it is prayed

as follows :

“It is, therefore, prayed that your honour may graciously be

pleased to keep this compromise petition on record till another

petition is filed before this Hon’ble Court for the disposal of this

partition suit.”

5.

This compromise application has been recorded by the learned Court

below by terms of order dated 22.03.1996 and final decree was passed.

6.

The learned counsel for the appellant submitted that in the alleged

compromise petition, the intention of the parties was to file a fresh compromise

application and till the second compromise application is filed, prayer was made

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to keep it on record and it was specifically prayed that the Court should not

pass order on this compromise application. From the very beginning, whenever

the compromise application was posted, the defendant No.1 and the appellants

were always objecting to recording of this compromise application on the

ground that the terms and conditions mentioned in the compromise application

have not been fulfilled but the learned Court below prior to recording the

compromise directed the Nazi