Decided on March 01,1960



S.K.Sen, J. - (1.) These two appeals arise from a suit for partition on a declaration as to his 8 annas share filed by the plaintiff respondent Kapildeo Singh sou of late Ram Gulam Singh.
(2.) The facts are briefly as follows: One Biru Maharaj, a Punjabi Brahmin belonging to Khanpur in Hossiarpur District of the Punjab, was a tenant in respect of 10 cottahs of Thika bastu land at 47. Bharpara Road within the Howrah Municipality, and he erected several structures thereon and occupied one of the structures himself and let out other to tenants. He took a loan of Rs. 376/- from Ram Golam Singh, father of the plaintiff respondent, by mortgaging his interest in the property at 47, Bharpara Road. Biru Maharaj went to his native village in Punjab in 1941 and died there. In 1945, Ram Golam Singh being dead his two sons viz., Kapildeo Singh the plaintiff respondent and Necklal Singh, instituted a mortgage suit, being Title Suit No. 81 of 1941, against Shyampeari describing her as the widow and sole heir of Biru Maharaj. The suit was decreed on 10-4-1945 in preliminary form, and final decree for sale was passed on 20-5-1946, and in the execution case started thereafter the property was sold in execution of the decree on 17-3-1947, the purchasers being the decree-holders viz., Kapildeo Singh and Necklal Singh. Thereafter Shyampeari filed an application under Order 21 Rule 90 of the Civil Procedure Code for setting aside the sale. In the course of that proceeding, a compromise was effected between Shyampeari and Necklal Singh, one of the decree-holders, and by an order of that Court dated 26-7-1947, the sale was set aside on compromise. Thereafter, Kapildeo Singh filed a Title Suit, being Title Suit No. 107 of 1948 of the third Court of Munsif, Howrah, alleging that he had not been a party to the compromise in the sale set aside case and that the compromise had been brought about behind his back and without his knowledge and that he was not bound by the compromise. This suit was decreed ex parte on 31-3-1949, and the sale was restored so far as Kapildeo's half share was concerned, but as regards Necklal's share the order passed on compromise in the sale set aside case was maintained.
(3.) In the meantime on 24-11-1948. Ramchandra Pandey, impleaded in the present partition suit as defendant No. 2, filed a suit against Shyampeari and the landlords of the land of the Thika Tenancy at 47, Bharapara Road, the suit being Title Suit No. 440 of 1948, of the Second Court of Munsif Howrah. Therein Ramchandra Pandey sought the declaration that he was an adopted son of Biru Maharaj and therefore entitled to the 16 annas interest in the disputed property and that Shyampeari was not a legally married wife of Biru Maharaj and had no title to the disputed property. On 30-7-1949, a petition of compromise was filed in that suit, by which Shyampeari admitted that Ramchandra Pandey was entitled to the property in suit and that she herself had no title thereto, and the suit was disposed of on 18-8-1949 in terms of the petition of compromise.;

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