J.SAHAI, J. - (1.) ON leave being granted, this special appeal has been filed by Thihli and Ram Dhan Ahirs against the judgment of Balram Upadhya, J. dated 22-1-1960. It will contribute to a clear understanding of the question raised before us if the following facts are given :
(2.) JAGDISH Chaube, son of Jamuna Chaube, respondent no. 1 to this appeal, filed the suit giving rise to this appeal on the allegation that plot no. 125 measuring 1.93 acres, situate in village Basharakpur in the district of Azamgarh, appertains to Khewat Khata no, 3 of which he and the defendants 2nd set are co-sharers and proprietors. The defendants 2nd set are Aditya Prasad, Brij Behari Prasad, Damodar Prasad, Baleshwar Prasad, Vishwanath Prasad and Munshi Jugul Kishore, and the defendants 1st set are Thihli Ahir, Ram Dhan Ahir, Ram Dhari Ahir. Smt. Sonwarsa Kuar, Kanta Ahir and Ram Chander Ahir. According to the allegations of Jagdish Chaube, the defendants 1st set attempted to disturb his as also that of the defendants 2nd sets possession over the plot in dispute. He, therefore, claimed the relief of a permanent injunction restraining the defendants 1st set from interfering with his possession. In the alternative, he prayed that if he be not found in possession a decree for possession over the plot in dispute or the grove be passed. The defendants 1st set contested the suit, inter alia, on the ground that Jagdish Chaube, had no right or title in the grove or plot in dispute, that they had planted trees over the plot in dispute about 22 or 23 years preceding the date of the filing of the suit and had been in possession since then, that the plaintiff and the defendants 2nd set had not planted any tree in the plot in dispute and the defendants 1st set were grove-holders of a portion of plot No. 125 measuring 400 Karis in area, and that the compromise in a previous suit viz. Suit No. 82 of 1940 was valid and binding. It was also pleaded Shat the suit was not cognizable by the civil court and in any case, the suit was barred by limitation. The learned Munsif held that Jagdish Chaube was the proprietor of the grove or the plot in dispute that the defendants 1st set were not the grove holders of that plot or any portion thereof, and further that the compromise in Suit No. 82 of 1948 was illegal and inoperative and conferred no right on the defendants 1st set. Molding further that the suit was not barred by limitation and that the civil court had jurisdiction to entertain it, he decreed the suit of Jagdish Chaube. On appeal the decision was affirmed by the learned Civil Judge, Azamgarh. Against the decree of the learned Civil Judge Second Appeal No. 93 of 1952 was filed in this Court which was heard by Balram Upadhya, J. and dismissed on 22-1-1960, as stated earlier. It may be mentioned that in 1946 the father of Jagdish Chaube, Jamuna Chaube and the defendants 2nd set filed Suit No. 82 of 1946 against the defendants 1st set in the present case in the Court of the Munsif, Azamgarh, for a declaration that they had proprietary rights over the grove or the plot in suit, Jamuna Chaube made an application, apparently under Or. 23, R. 1 C.P.C. for withdrawing from the suit and for permission to file another suit. That application was allowed, and the suit proceeded between the defendants 2nd set and the defendants 1st set. The matter was compromised and the defendants 2nd set accepted the defendants 1st set to be the, grove-holders of the land or the grove in dispute. It was thereafter that the suit giving rise to this special appeal was filed.
(3.) THE learned Single Judge, the first appellate court and the trial court decided against the appellants on the following two grounds : (1) that the decree in Suit No. 82 of 1946 did not confer any right on the defendants 1st set in the plot or grove in dispute, because such a right could be acquired not under a decree but under the provisions of Sec. 205 of the Act; and (2) that inasmuch as Jamuna Chaube, the father of the present plaintiff-appellant Jagdish Chaube, did not join in the compromise, there was a contravention of the provisions of Sec. 246 of the Act, with the result that the compromise was not a valid one and could not confer any rights on the defendants 1st set. ;