S.B.CIVIL SECOND APPEAL NO.17/2008 Rama vs. L.Rs of Malla-Smt. Kameri & ors. Order dt: 15/9/2008 1/5 S.B.CIVIL SECOND APPEAL NO.17/2008 (Rama vs. L.Rs of Malla - Smt. Kameri & ors.) DATE OF ORDER : 15/9/2008 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.S.L.Jain, for the appellant. Mr.Ashok Kumar Jain, for the respondents. 1. Pitched against the concurrent findings of two courts below in a suit filed by the plaintiff-Malla, brother of defendant Rama, the present second appeal has been filed by Rama against the judgment and decree of learned trial court of Civil Judge (Jr.Div.), Pratapgarh decreeing the suit no. 121/96, Legal representatives of Malla vs. Rama & ors by judgment and decree dated 15/11/2000, which was upheld by the appellate court of learned District Judge, Pratapgarh dismissing the defendant-Rama's appeal no.1/2001 by order dated 23/8/2007. 2. The plaintiff, L.Rs of Malla filed suit no.121/96 against the decree passed by Assistant Collector, Pratapgarh dated 1/5/1986 and 18/3/87 giving a preliminary and final decree respectively in a suit of partition filed by Rama namely revenue suit no.100/80. The case set up by the plaintiff-L.Rs of Malla before the trial court in present suit no.121/96 was that on account of compromise between the two S.B.CIVIL SECOND APPEAL NO.17/2008 Rama vs. L.Rs of Malla-Smt. Kameri & ors. Order dt: 15/9/2008 2/5 brothers dated 1/6/1983, which was arrived at before the Panchayat of Village Dorana, the said compromise was reduced into writing and same was filed before the learned court of Assistant Collector on 18/8/1983 and thus on 20/7/87 defendant Malla expressed before the said court that he does not want to lead any evidence in the matter as the parties have arrived at the compromise. On 5/11/1985, the advocate appearing for defendant-Malla also pleaded no instructions. According to plaintiff-L.Rs of Malla before the revenue court defendant Rama persuaded him not to come to the Court as they have already arrived at a compromise. Thus, playing fraud upon him, later on, Rama got the suit amended by getting one application filed by one Bhera Ram, wherein on the basis of the report of the Commissioner dt. 11/11/86 he objected to such partition on the basis of report for division of the land in question on the compromise dated 1/6/1983 and Malla had paid a sum of Rs.1700/- to Rama, he got the said land as already given to Malla as subject matter of partition again and obtained the said ex-parte decree of partition from the court of SDO by playing fraud and thereupon the need to file the present suit arose. 3. The said suit no.121/96 was decreed by the learned trial court and affirmed by the first appellate court as aforesaid and being aggrieved of the same,defendant-Rama has preferred this second S.B.CIVIL SECOND APPEAL NO.17/2008 Rama vs. L.Rs of Malla-Smt. Kameri & ors. Order dt: 15/9/2008 3/5 appeal before this Court. 4. Mr.S.L.Jain appearing for the appellant-plaintiff-Rama vehemently submitted that there was no fraud played upon Malla and compromise dated 1/6/1983 could not be said to be a compromise under Order 23 Rule 1 CPC and decree given by the learned Assistant Collector in revenue suit no.100/80 could not be validly assailed by the legal representatives of Malla in the present suit. He drew the attention of this Court towards Ex.1, the said compromise dated 1/6/1983 and the application dated 1/9/1983 filed along with said compromise Ex-2 on record. The said compromise dated 1/6/1983 Ex-1 as well the application Ex.2 bear the signatures of plaintiff Rama and the averments made in the said compromise clearly states that because a sum of Rs. 1700/- paid by defendant Malla, the plaintiff Rama would withdraw the suit in respect of Aaraji land of Malla. 5. Mr.Ashok Kumar Jain, learned counsel appearing for the respondents-L.Rs of Malla submits that the finding arrived by two courts below about fraud played by Rama in obtaining ex-parte decree of partition by seeking amendment in the suit after the aforesaid compromise, was a finding of fact and no substantial question of law arises for consideration by this Court in present S.B.CIVIL SECOND APPEAL NO.17/2008 Rama vs. L.Rs of Malla-Smt. Kameri & ors. Order dt: 15/9/2008 4/5 second appeal. 5. In view of facts and circumstances of the case, where the parties being close relatives, entered into a compromise before the Panchayat and said written compromise was duly submitted before the learned Revenue Court, thereafter in the absence of defendant Malla, seeking amendment in the suit and making the land of Malla subject to partition and obtaining ex-parte decree by plaintiff-Rama was clearly a fraud played upon by plaintiff-Rama. 7. Both the courts below on the basis of appreciation of evidence in the suit no. 121/96 further found that it was a fraud played by Rama and no partition decree including the land of Malla could be passed by the learned SDO after the said compromise. The first appellate court has also again discussed in detail the evidence as well as referred to the said compromise and payment of sum of Rs.1700/- and held that the revenue court was misled into passing the decree in suit no.100/80 and said decree was rightly cancelled by the learned trial court. 8. Having heard learned counsels and upon perusal of record of the case and judgments of two courts below, this Court is satisfied that no substantial question of law arises in the matter. Whether fraud has been committed or not in the matter is essentially a finding of fact S.B.CIVIL SECOND APPEAL NO.17/2008 Rama vs. L.Rs of Malla-Smt. Kameri & ors. Order dt: 15/9/2008 5/5 and two courts below on proper appreciation of evidence before them have found that fraud was played by Rama in obtaining the partition decree from the revenue court in revenue suit no.100/80. The said findings of courts below are findings of fact which cannot be said to be perverse or arrived at on misreading of evidence. This Court has also perused the aforesaid evidence and terms of compromise between the parties dated 1/6/1983 including the application Ex.2 with which the said compromise was filed before the learned SDO and this Court is satisfied that having arrived at the compromise, there was no occasion for the plaintiff Rama before the revenue court to subsequently amend the suit and subject the Aaraji land of Malla to partition and obtain ex-parte decree keeping Malla in dark about the subsequent amendment and proceedings in the suit. 9. In the opinion of the this Court, no substantial question of law arises in the present second appeal. The same is found to be devoid of merit and accordingly dismissed. No costs. (DR.VINEET KOTHARI), J. item no.32 baweja/-