High Court Punjab-Haryana High Court

Ram Lal And Another vs Nebh Raj on 21 November, 2008

Punjab-Haryana High Court
Ram Lal And Another vs Nebh Raj on 21 November, 2008
RSA No. 3704 of 2008                            1

       In the High Court for the States of Punjab and Haryana at Chandigarh
                                 ...


                                         RSA No. 3704 of 2008

                                         Date of decision: November21,2008

Ram Lal and another                                              ..Appellants.

                                   Versus

Nebh Raj
                                                                 ..Respondent

Coram:        Hon'ble Mr.Justice Rakesh Kumar Garg

Present:      Mr. K.B.Sharma,Advocate
              for the Appellants.

                            ..

Rakesh Kumar Garg,J.

This is plaintiffs’ second appeal challenging the judgment and

decrees of the courts below whereby their suit for declaration and permanent

injunction has been dismissed.

As per the averments made in the suit, the plaintiffs and defendant

are joint owners in possession of 5 Karam wide strip of land forming part of Rect.

No.28, Killa No.9/1 and 8/1, which are abutting on the side of public road. The

plaintiffs claimed themselves to be the owners to the extent of 3/4th share in the

said strip of land. It is further averred that there had been previous civil litigation

between the parties and a compromise was arrived at in Civil Appeal No.11

decided on 8.8.1996 and in view of the terms and conditions of the said

compromise entered between the parties, the plaintiffs have agreed to leave 5

Karams wide strip of land for use of the plaintiffs to irrigate their land but recital

to that effect in the compromise were not scribed.

It was pleaded that plaintiffs’ joint ownership in the aforesaid strip of

land was erroneously not reflected in the compromise entered between the

parties in the previous suit. So, they requested the defendant to get the

compromise as also previous decree modified but the defendant did not accede

their request. Hence, they filed a suit for praying for modification of compromise
RSA No. 3704 of 2008 2

and previous decree in order to reflect their title in the disputed strip of land and

as a consequential relief, they have prayed for a decree restraining the

defendant from interfering in their right to use the water channel passing through

the disputed strip of land.

The defendant contested the suit. His plea is that the suit is barred

under the provisions of Order 23 Rule 3A of Code of Civil Procedure (CPC) and

that the plaintiffs are not joint owners of the disputed strip of land. It was averred

that the plaintiffs had relinquished their share in the disputed land but they have

now turned dishonest and have filed the suit with an ulterior motive to harass

him.

The courts below on appraisal of the evidence and submission of

the parties, dismissed the suit.

Feeling aggrieved, the plaintiffs filed the present appeal challenging

the aforesaid judgment and decrees of the courts below.

The case of the defendant is to lay the claim upon the further 5

karams wide strip of land that is from 10 to 15 karams which according to them

was left under the wrong impression of going under the road whereas in fact not

even a single inch have gone under the road and the total 15 karams wide strip

of land was available on the spot and thus after leaving 10 karams of land to the

defendant respondent, the 5 karams wide strip of land remains joint of the

parties through which the water courses has been existing for irrigation of the

land of the appellant on the other side. Hence the said left over 5 karams of land

not being the subject matter of the compromise, is jointly owned and possessed

by the parties as per their respective shares i.e., ¾ share of the appellant-

plaintiffs and 1/4th share of the defendant respondents. Hence findings of the

learned courts below are wholly illegal and not sustainable in the eyes of law.

It is the admitted case of the parties that they had arrived at a

compromise in previous litigation. It has been recited in the compromise

Ex.PW1/10 that the width of Khasra No.28/8/1 and 28/9/1 had been reduced

from 15 Karams to 10 Karams due to construction of road on southern side and
RSA No. 3704 of 2008 3

that 10 Karams wide strip of land had fallen to the share of defendant. The

pleaded case of the appellants is that the parties in fact had agreed to leave 5

karam wide strip of land for use of the plaintiffs to irrigate their land but recital to

that effect in the compromise was not scribed, whereas now, it is being argued

that no land has undergone beneath the road and 5 ft. strip of land is available

through which irrigation facility is available and which is joint. Thus in this

situation, in the facts the plaintiffs are asking for modification in the earlier

compromise decree. In that situation, the present suit is not maintainable in view

of the bar of Order 23 Rule 3-A CPC as no suit is maintainable to set aside a

decree on the ground that the compromise on which the decree is based was not

lawful.

Thus there is no scope for interference in the impugned judgment

and decrees of the courts below. No substantial question of law arises.

Dismissed.

November21, 2008                                     (RAKESH KUMAR GARG)
            nk                                              JUDGE
 RSA No. 3704 of 2008                            4

It is the case of the appellant that the disputed strip of land was left erroneously

under the impression that a road is constructed adjoins the disputed strip of land.

A partition took place between the parties in consonance with the contents of the

compromise Ex.C1 in Civil Appeal No.11 decided on 8.8.1996 by the court of

Additional District Judge, Faridabad and parties are in possession of the said

strip of land jointly. This appeal is without any merit.