CASE NO.: Appeal (civil) 1211 of 2005 PETITIONER: Ajad Singh @ Ajad RESPONDENT: Chatra and Others DATE OF JUDGMENT: 14/02/2005 BENCH: CJI,G.P. Mathur & P.P. Naolekar JUDGMENT:
J U D G M E N T
(arising out of SLP (C) No. 3884 of 2002)
P.P. Naolekar, J
Leave granted.
The appellant Ajad Singh has filed a suit for declaration
and possession of his right, title and interest over the suit
property along with Dilawar Singh @ Dilbag Singh and Silak Ram
proforma respondents Nos. 4 and 5 and for mandatory
injunction against respondent Nos. 1, 2 and 3 for removal of
superstructures raised by them over the suit lands and for
restraining them from interfering with the possession of the
appellant. The case of the plaintiff/appellant is that he and
respondent Nos. 4 and 5 are real brothers and the property in
suit came to them in partition effected between them and their
uncle Puran. The respondent Nos. 1, 2 and 3 have encroached
upon the suit lands on 2.1.85 by storing some pucca bricks on
the suit land and thereafter have raised some construction over
it. The defendant-respondents have not vacated the land in
spite of demand by the plaintiff-appellant. The
defendants/respondents Nos. 1, 2 and 3, filed their written
statements denying the right, title and interest of the appellant
over the suit land and claimed that they were in possession of
the suit land for the last 60 years which had ripened into
ownership by way of adverse possession and the construction
made over the land was in exercise of that right. It was further
alleged that appellants as well as respondent Nos. 4 and 5 had
admitted the possession of respondent Nos. 1, 2 and 3 of the
suit property vide compromise dated 14.10.1985 and thus
appellant was prevented by his acts and conduct to pursue the
present suit.
The trial court appointed a Commissioner for inspection of
the suit site and record the evidence of the parties. On the
appreciation of the evidence led by the parties and the report of
the Commissioner, the trial court decreed the suit filed by the
appellant. Aggrieved by the said decree, respondent Nos. 1, 2
and 3 filed an appeal which was heard by the Additional District
Judge, Panipat. The First Appellate Court reversed the decree by
placing reliance on the compromise (Exhibit D1) dated
14.10.1985 which was said to have been effected between the
parties in the police station. In paragraph 9 of the Judgment,
the Court has held that the compromise (Exhibit D1) dated
14.10.1985 is a very relevant piece of evidence which admittedly
has been signed by Ajad Singh but about which no such plea has
been raised by the appellant either in the amended plaint or in
the replication filed by him on 4.6.1987 as would enable him to
avoid the compromise. There is also no pleading from the
plaintiff-appellant’s side that the said compromise (Exhibit D1)
was obtained by the police forcibly. He has not stated anything
about the compromise in his examination-in-chief and only in the
cross-examination he has stated that the compromise was
effected by use of force in the police station. On perusal of the
compromise, the Court has further held that both the sides have
resolved the dispute and respondent No. 1 could remain in
possession of suit property, as, according to the compromise,
the appellant has already relinquished the right over the site in
dispute on 14.10.1985 (Exhibit D1) itself. Thus, it is made out
that the trial court has wrongly rejected the said compromise
(Exhibit-D1) by observing that no such permission was obtained
to effect the compromise in the police station. The Court further
summarized the effect of compromise that the appellant has
relinquished his right in the suit land in view of the settlement
(Exhibit D1) dated 14.10.1985 itself and about which he
remained mum and knowingly concealed this fact in the
pleadings. Thus, after the examination of the said compromise
(Exhibit D1), it is made out that the plaintiff-appellant agreed
to withdraw the suit and conceded that Chatra, the defendant
No. 1 shall continue to remain in possession of the suit property.
On these findings the judgment and decree of the trial court was
set aside and the so-called compromise (Exhibit D1) was held
to be binding on the parties.
The appellant preferred a second appeal before the High
Court which was dismissed in limine. The High Court has
reproduced paragraphs 8 and 9 of the judgment of the lower
appellate court and concurred therewith dismissing expressing
an opinion that the reason given by the first appellate court for
dismissing the suit are much weighty, as compared to the
reasons given by the trial court which committed patent illegality
in decreeing the suit.
In this petition seeking leave to appeal preferred by the
appellant before this Court, a notice, limited to the question as
to why the matter be not remanded back to the first appellate
court for decision afresh, was issued.
We have heard the learned counsel for the parties and we
are satisfied that the case deserves to be remanded to the first
appellate court for the reasons stated hereinafter. The High
Court as well as the first appellate court have not adverted to
the various relevant and important aspects of the case while
deciding the matter. And, this we say for the several reasons
which follow. First, the provision contained in Order 23 Rule 3 of
the CPC has been completely overlooked. The date on which the
compromise (Exhibit D1) is alleged in the written statement to
have been entered into between the parties, the suit relating to
the property forming the subject matter of the compromise was
pending in the Court. The suit could not have been disposed of
except by recording the compromise and that too by following
the procedure, and recording the satisfaction, contemplated by
Rule 3 of Order 23 of the CPC. Secondly, the first appellate
court was not justified in observing that the plaintiff had not
raised necessary pleadings either in the plaint or in the
replication disputing the factum and legality of the compromise.
From a perusal of the written statement, we find that necessary
pleadings satisfying the requirement of Order 23 Rule 3 of the
CPC have not been raised in the written statement. The written
statement makes only a bald reference to the said compromise
dated 14.10.1985. The plaintiff can be safely assumed to have
denied all the averments made in the written statement. Also,
we find from the judgment dated 5.10.1985 of the trial court
that no specific issue was framed on the pleading raised by the
defendant regarding the said compromise dated 14.10.1985.
The appellate court ought to have taken note of the fact that the
said compromise was recorded in the police station and during
the pendency of the suit. Thirdly, the first appellate court ought
to have been conscious of the fact that the said compromise is
on a plain piece of paper, and so, whether such document was
required to be stamped or registered or not? Be that as it may,
in our opinion, the very fact that the courts below have
overlooked the provisions of Order 23 Rule 3 of the CPC is
sufficient to vitiate the judgment and the matter needs to be
remanded for consideration afresh.
The appeal is allowed. The order dated 26.9.2001 of the
High Court dismissing the second appeal in limine as well as the
judgment and decree passed by the first appellate court are set
aside. The first appeal being Civil Appeal No. 376 of 1999 shall
stand restored and is remitted to District Judge, Panipat for re-
hearing and deciding it afresh either by himself or assigning it to
a Court competent to hear it.
No order as to the costs.
