Ram Janam Singh, Member - (1.) PRESENT Second Appeal No. 27 of 97 -98/Saharanpur (Jagdish Prasad v. Shyam Lal and others) has been preferred against the judgment and decree dated 2.6.98 passed by learned Additional Commissioner, Saharanpur. Another Second Appeal No. 25 of 97 -98 (Sanjeev Kumar v. Jagdish Prasad and others) has also been preferred against the same order. Brief facts of the case are that plaintiff filed suit No. 28 under Section 229B/176 of the U.P.Z.A. and L.R. Act before the Sub -Divisional Officer Muzaffarnagar. Another suit No. 30 was also filed by the plaintiff Jagdish Prasad before the Sub -Divisional Officer Muzaffarnagar. Defendants denied the claim of the plaintiff and alleged that plaintiff has no share in the land in dispute because his name is not recorded therefore he cannot claim to be co -tenure holder and he cannot get share in the land in suit. During the pendency of the suit a compromise application dated 9.4.97 was filed in both the suits before the trial Court. In one suit, in which Jagdish Prasad was plaintiff, he was ready not to press the suit provided he gets share in another suit. The learned trial Court accepted the compromise in suit No. 30 in which Jagdish Prasad was ready not to press. Hence plaintiff's name is not recorded and the compromise relates to evading the payment of stamp duty. The conclusion of the trial Court was that the transfer is collusive. Aggrieved by this order Appeal Nos. 17 and 18 were preferred before the learned Additional Commissioner, Saharanpur, without giving any consideration the application of the compromise, the learned Additional Commissioner dismissed the appeal of Jagdish Prasad. Hence one second appeal before the Board has been filed by Jagdish Prasad. Other second appeal has been filed by Sanjeev Kumar and others.
(2.) HEARD the learned counsel for the parties and perused the records carefully. If the compromise was a collusive transfer then it was the duty of the learned trial Court to have afforded both the parties -plaintiffs and defendants - -to adduce their oral and documentary evidence and on the basis of the evidence the trial court should have decided the cases on merits. In one case - -Suit No. 30 - -Jagdish Prasad moved an application with a condition that if he gets a share in suit No. 28 only then he was ready not to press suit No. 30. The compromise between the parties in suit No. 30 was accepted by the trial Court but the compromise in suit No. 28 was dismissed on the basis of the fact that it is a collusive transfer because the name of the plaintiff is not recorded and also observed that this compromise is just to evade the payment of stamp duty. Since the property in question in both the suits is parental and ancestral property then there is no question of collusive transfer of evading the payment of stamp duty. It was just to resolve the dispute between the family members that they have no objection to this if the dispute among the family members was once for all decided. By filing this compromise, Jagdish Prasad has been ousted from both the suits, whereas Jagdish Prasad is also son of Setho Ram whose property is in dispute between the parties. On this point, there is no dispute between the parties that Jagdish Prasad is the son of Setho Ram. As regards the merits of the case, I would not like to give any finding because this case deserves to be remanded back to the trial Court for deciding both the suits on the basis of the compromise and if that compromise is not acceptable to the Court then the parties should be afforded opportunity to adduce their oral and documentary evidence and on the basis of that this suit should be decided on merits. On the basis of the observations made in the above paragraph, both the Second Appeals are allowed and the cases are remanded back to the trial Court to decide the suit Nos. 28 and 30 on the basis of the compromise and if that compromise is not acceptable to the court then the parties be allowed to adduce their evidence and on the basis of that evidence the Court should decide the case on merits. This order will also? Second appeal No. 25 of 1997 -98 district Saharanpur. ;