- (1.)THIS is a defendants second appeal arising out of a suit in respect of some plots of agricultural land.
(2.)ONE Sheo Raj was a hereditary tenant of the plots, in suit before the enforcement of the U. P. Zamindari Abolition and Land Reforms Act. He died leaving behind his widow Smt. Sirtaji as his heir. On 18-5-1954 Jokhan defendant, who is a collateral of Sheo Raj, filed suit No. 706 of 1954 in the revenue Court under section 59/61 of the U. P. Tenancy Act of 1939 impleading Smt. Sirtaji as a defendant. He alleged that the plots in suit were his hereditary tenancy and sought a declaration to that effect by the Court. The suit was decreed on the basis of an admission of Jokhans claim purporting to have been made by Smt. Sirtaji. On 28-6-1954 Nandan, father of the respondents, filed an application in suit No. 706 of 1954 for setting aside the decree passed in that suit, stating that Smt. Sirtaji had died before the institution of the suit, and that the admission of the plaintiffs claim purporting to have been made by Smt. Sirtaji was really made by an imposter set up by Jokhan himself. Subsequently, on 25-9-1954 Jokhan and Nandan filed in that suit an application in the nature of a compromise and prayed that the decree originally passed in the suit be set aside, Nandan be impleaded as a defendant and the suit be disposed of in terms of the compromise. It was stated in the application that the partion had agreed that Smt. Sirtaji was dead and the parties were her heirs. It was further stated that in fact Sheo Raj had surrendered the plots in favour of the zamindars who had thereafter settled the plots of List A in favour of Sarju, uncle of Jokhan, and those of List B in favour of Nandan, and that Jokhan, as heir of Sarju was in possession of the plots of List A and Nandan was in possession of the plots of List B, neither party having any right or interest in the plots shown in the list of the other party. A decree in terms of the compromise was passed on 21-10-1954. The present suit was filed by Nandan against Jokhan defendant in the civil Court for a declaration that he is Sirdar of the plots in suit and the decree dated 21-10-1954 passed in suit No. 706 of 1954 by the revenue Court is not binding on him. There was also an alternative prayer that in case the plaintiff was found to be out of possession over any of the plots in suit he may be put in possession. Nandan died shortly after the institution of the suit and the respondents, who are his sons, were brought on record in his place. The suit was decreed by the trial Court and its decree was confirmed by the lower appellate Court. The defendant has come up in appeal to this Court.
The grounds on which the validity of the decree passed in suit No 706 of 1954 was challenged were mainly these. Firstly, the revenue Court had no jurisdiction to entertain the suit and the decree passed by it was, therefore, a nullity. Secondly, the decree was vitiated by fraud inasmuch as it had been agreed between the parties to the compromise that the plots of List A belonged to Nandan while plots of List B belonged to Jokhan fraudulently contrived to get the lists mentioned in the reverse order. The plaintiffs, however, claimed to have continued in possession of the plots in suit. Briefly stated the defence was that no fraud had been practised by the defendant, and that the compromise filed in Court was in accordance with what had been agreed to by the parties and was binding on them. It was also pleaded that the suit was barred by the provisions of section 11 C. P. C. and section 116 of the Evidence Act.

(3.)THE findings of the Courts below are to the following effect. Sheo Raj never surrendered any of the disputed plots and they devolved upon Smt. Sirtaji after the death of Sheo Raj, and then upon Nandan after the death of Smt. Sirtaji, Jokhan defendant, who claimed to have been in possession of the disputed plots even during the life time of Sheo Raj and Smt. Sirtaji, was in possession not on his own account but on behalf of Sheo Raj and Smt. Sirtaji as their helper in cultivation and he did not, therefore, acquire any right or interest in any of the plots. Smt. Sirtaji had died on 8-4-1954 and the suit was, therefore, instituted against a dead person. The suit was also not entertainable by the revenue Court because on the allegations made by Jokhan he could only claim Sirdari rights after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, and a declaration of such rights could have been granted only by the civil Court at the time of the institution of the suit. The compromise decree having been passed by a Court without jurisdiction was a nullity. Further, the decree amounted to a transfer of the land held by Nandan as a Sirdar and was as such invalid. The Courts below have, however, found that actual possession of the disputed plots is with the defendant, as it was with him in the life time of Smt. Sirtaji. They have also found that the allegations of fraud made by the plaintiffs have not been established.