Decided on December 19,1968

RAM NIWAS Appellant


- (1.)THIS is a revision application by Ramniwas, Ramesh-warlal and Sitaram defendants against an order of Munsif, Jaipur City (West) dated 27-5-68 directing the amendment of the plan attached to a compromise.
(2.)THE suit was instituted by Hanuman Sahai, plaintiff. THE plaintiff and the defendants are real brothers and they are the owners of plot of land on which some constructions are standing. According to the plaint allegation the defendants started constructing a shop at the north-east corner of the plot. THE present suit was instituted for a mandatory and prohibitory injunction against making any constructions on the ground that the plot was joint property. THE suit was contested by all the 3 defendants but ultimately they arrived at a compromise under which they partitioned the entire land as well as the constructions amongst the four brothers by metes and b6unds retaining some portions as joint properties. This compromise was recorded by the court. THE plan showing different portions of the house allotted to different brothers formed part of this compromise. When the compromise was recorded on 18-5-67 the suit was dismissed on the basis of the compromise.
On 23-8 67 the plaintiff filed an application before the learned Munsif that the plan accompanying the compromise had been tampered with and some joint portions have been coloured in the colour of different brothers. Notice of this application was issued to the defendants who filed a reply on 3-2-68 alleging that there had been no tampering with the plan. After notice to the parties and in their presence the learned Munsif made a local inspection on 23-3 68 and heard arguments on 25-5-68. On 27-5-68 he recorded a finding. He held that the plan forming part of the compromise had been tempered with and joint properties, ABGD, EFGH and IJKL were shown as belonging to different brothers by applying colours to these portions. He passed an order that these portions shall be treated as joint properties of the four brothers. He also held that this tampering had taken place at the instance of the defendants with the collusion of the officials of the court. It was directed that the matter may be submitted to the District Judge for such action as he may deem fit to take. The District Judge directed that a first information report be lodged with the police so that an enquiry may be made and the guilty persons prosecuted and punished,

Against the above order the present revision application has been filed. Two grounds were taken before me. One was that no evidence was recorded. The defendants knew fully well that the learned munsif was holding an enquiry and would give a decision on the question as to whether or not tampering with the plan had taken place. No request was made on their behalf to record any evidence. As such the defendants had full opportunity to meet the case and the order cannot be challenged on that ground.

The second ground of attack is that the learned Munsif was not seized of the case when he passed the order and he had no jurisdiction to record a finding so as to affect the right of the parties by correcting the plan. The learned Munsif had no doubt jurisdiction to hold an administrative enquiry into the matter. No execution application was pending before him and therefore he could not record a judicial finding to the effect that ABCD, EFGH and IJKL should be treated as joint properties. This matter could only be determined by the court judicially if an execution application had been made before it. If the matter had been determined judicially in execution proceedings then the defendants would have a right of appeal.

I accordingly allow the revision application in part and hold that the order of the learned Munsif dated 27-5-68 will not be treated as a judicial order amending the plan under secs. 151 and 152 C. P. C. The order will remain intact as an administrative order.

The stay order passed by this Court is vacated. A first information report will be lodged as directed by the learned District Jugde, if it has not already been lodged and police investigation will take place.

In the circumstances of the case, I leave the parties to bear their own costs of this revision application. .


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