Chandrabhan etc. vs Bal Swaroop

Ram Janam Singh, Member.

Chandrabhan and others have filed this second appeal against the judgment and decree dated 3111995 passed by learned Additional Commissioner, Meerut.

Facts of the case are that Fateh Singh and others, the fathers of the appellants, filed a suit under Section 176 of the UPZA and LR Act before the learned trial Court against defendants Charan Singh, Sheeraj Singh and Shoran Sing claiming 1/4th share each for the plaintiff as well as remaining three defendants. The defendants did not oppose the partition suit. The learned trial Court after perusal of the oral and documentary evidence and also a compromise between the parties decreed the suit accordingly on 21977. After a lapse of even years on 10101984 Fateh Singh moved an application for preparation of final decree. Defendants respondents opposed that the final decree should not be prepared on the basis of the preliminary decree passed on 2191977. The learned trial Court on the basis of this application moved by Fateh Singh and the objection raised by the defendants respondents set aside the decree dated 2191977 and fixed the case for further necessary action. The plaintiffappellants filed a first appeal before the Commissioner Meerut and the Commissioner also rejected the appeal vide its order dated 3111995. Hence, this second appeal."

I have heard the learned Counsel for the parties and gone through the records carefully.

(sic) had been obtained fraudulently and not on the basis of the compromise then it was the duty of defendantrespondents to have moved a separate application for setting aside the decree dated 21 977 which was passed on the basis of a compromise which did not bear the signatures of the defendants but after seven years that too on ;he application of the plaintiffappellant for preparation of final decree, setting aside of the preliminary decree passed on 21977 can not be considered to be legally a correct version. There is a prescribed procedure for setting aside the expane decree or order which was not in the knowledge of the aggrieved person or before passing application moved by the plaintiffellants for preparation of final that order no intimation was given to the aggrieved person. In the instant case the learned trial Court as well as the learned Additional Commissioner both have given the same finding that setting aside the order dated 21977 on the basis of the a appel decree is correct. I think the opinion of both the Courts below is erroneous, against the facts and provisions of law. If the defendantrespondents were aggrieved they should have filed a separate application for setting aside that decree. Whether that decree was obtained on the basis of the compromise between the parties or not, this conclusion cannot be drawn merely on an application. Hence, the conclusio''n of both the Courts needs interference at this stage.

On the basis of the discussions made above, the second appeal is allowed ; judgments and decree passed by both the Courts below are set aside.

Appeal allowed