JUDGMENT
R. Gururajan, J.
1. This is one more case reflecting the slow movement of wheels of justice in Civil Courts. The suit of 1954 ended in a decree and execution of 1971 ended in compromise. Compromise is challenged by subsequent suits before Trial Court as well as Appellate Court and ultimately in this Court.
2. The defendants/appellants are before me challenging the order of the learned Trial Judge passed in O.S. No. 7 of 1992 and O.S. No. 5 of 1993 confirmed in Appeal Nos. R.A. Nos. 87 of 2002 and 6 of 1998, dated 19-12-2002 and 28-2-1998 respectively. Parties would be referred to as per their ranking before the Trial Court.
3. Facts are as under:
Plaintiff Ganesh Subray Bhat filed a suit seeking for injunction restraining the defendant/appellants from interfering with the alleged act of performing pooja in the temples of Shree Mahaganapati and Shree Mahabaleshwar at Gokarn. One Sri Subbaraya Appu Bhat uncle of 1st respondent-Ganesh Subraya Bhat filed a suit in O.S. No. 238 of 1954 on the file of the Munsiff at Honnavar for partition and separate possession. In the said suit, no right whatsoever in respect of pooja was asked for by Subbaraya Appu Bhat. There was a settlement between Subbaraya Appu Bhat Vedeshwar i.e., the mother and other brothers in 1952 itself. Subbaraya Appu Bhat gave up the pooja rights in respect of the alleged two temples. Suit was only for partition of immovable properties. Suit was decreed. No final decree was drawn. Execution petition was filed by Subbaraya Appu Bhat in case No. 35 of 1971. During the pendency of the petition, a Commissioner was appointed to inspect the house property. He found that the house property was a single residential unit and it could not be divided in 3 portions for beneficial enjoyment of shares. Compromise was arrived at between some parties and Subbaraya Appu Bhat on 30-10-1991. Appellants have not signed the petition. Compromise was accepted. A decree was passed. Appellants 1 to 5/defendants filed a separate suit in O.S. No. 5 of 1993 challenging the said compromise decree. They sought for injunction. During the pendency of the execution petition Subbaraya Appu Bhat died. 1st respondent came on record.
1st respondent according to appellants/defendants filed a suit in O.S. No. 5 of 1993 for injunction as a counter blast to the suit filed by the appellants in O.S. No. 7 of 1992 in the matter of pooja rights. Suit was contested. Suit was decreed and an unsuccessful appeal was filed. Defendants/appellants are before me challenging the concurrent findings in the case on hand.
R.S.A. No. 380 of 2003 is again filed by Krishna Gajanana Vedeshwar, Vishnu Gajanana Vedeshwar, Chintamani Gajanana Vedeshwar-appellants 1, 3 and 5 (in R.S.A. No. 903 of 2003) challenging the judgment and decree passed in O.S. No. 7 of 1992 by the Civil Judge (Junior Division), Kumta and the appellate order dated 19-12-2002 passed in R.A. No. 87 of 2002.
Facts in R.S.A. No. 380 of 2003 are as under:
Appellants in this appeal are plaintiffs. One Subbaraya Appu Bhat father of respondent 7(a) and uncle of respondent 7(b) filed a suit in O.S. No. 238 of 1954 on the file of Munsiff, Honnavar, for partition and separate possession of properties including house property situate in Gokarna. Suit was decreed. The predecessors of the appellant filed Civil Appeal No. 181 of 1957 unsuccessfully. Subbaraya Appu Bhat filed execution in E.P. No. 35 of 1971. A Commissioner was appointed to inspect the house property. He found that the property was a single residential unit and it could not be divided in 3 portions. A compromise petition was filed on 30-10-1991 in the execution petition filed on behalf of Subbaraya Appu Bhat and signed by Advocate for respondents 1, 3 to 6 and also signed by Subbaraya Appu Bhat. Compromise was accepted. Subbaraya Appu Bhat died thereafter. Respondents 7(a) and (b) were brought on record as LRs. Papers were sent to Deputy Commissioner for effecting partition. Appellants according to the appeal averments are not aware of the compromise petition. They therefore, filed a suit in OS. No. 7 of 1992 for setting aside the compromise decree on the ground that the said compromise and decree is the outcome of fraud played on the appellants and behind their back. Trial Court dismissed the suit. Unsuccessful appeal was filed in R.A. No. 87 of 2002. Appellants/plaintiffs are before me challenging the concurrent findings of the Court below.
R.S.A. No. 380 of 2003 was posted before this Court on 4-12-2003 and 12-12-2003. On 12-12-2003 this Court directed the office to post for admission R.S.A. No. 380 of 2003. R.S.A. No. 903 of 2003 was listed on 9-1-2003. On that day, this Court directed the said R.S.A. to be listed along with R.S.A. No. 380 of 2003. This is how both these appeals are posted together for hearing.
4. Heard Sri S.V. Bhat, learned Counsel appearing for the appellants. He took me through the material on record while arguing R.S.A. No. 380 of 2003. According to him, the compromise petition was signed by a lawyer and that it was against the interest of the parties. He relies on the proviso to Order 23, Rule 1 of the CPC to contend that the matter requires re-consideration. He relies on a few judgments in the matter. He wants this Court to interfere in the case on hand. He argued that the Courts were wrong in not noticing that the compromise petition under Order 23, Rule 3 of the CPC is not at all maintainable. Learned Counsel would also invite my attention to the material facts and argued about the powers of an Advocate in such matters. He says that specific allegations about Advocates and their role in entering into a compromise is not required in the present set of circumstances. He wants the Court to interfere in the given circumstances. Counsel says that the compromise decree is hit by Sections 4 and 6 of the Hindu Succession Act, 1925 and Clauses 2 and 3 of the Indian Partition Act. While arguing R.S.A. No. 903 of 2003 the learned Counsel would say that a bare injunction in not available in the given circumstances. Even otherwise Section 47 read with Order 21, Rule 5 of the CPC would come in the way of maintainability. Counsel complained that Sri Subbaraya Appu Bhat had no pooja right in the later settlement. He relies on a few judgments.
5. Per contra, the Counsel for respondents would support the orders. Parties rely on few judgments to which reference would be made at appropriate stage.
Orders in R.S.A. No. 380 of 2003:
6. In the light of the arguments of the learned Counsel, I have perused the orders passed by both the Courts below. Appellants are the plaintiffs and they filed O.S. No. 7 of 1992 seeking for cancellation of the order dated 30-10-1991 passed in E.P. No. 35 of 1971. A compromise petition was filed on 30-10-1991. According to the plaint averments, it was a mala fide compromise and not a compromise in the eye of law. Compromise petition was filed without the knowledge of the plaintiff in O.S. No. 7 of 1992 which is an outcome of fraud. On coming to know of the same, they have filed this suit seeking for cancellation of the order passed in E.P. No. 35 of 1971. Suit was contested. Defendant 1 did not contest the suit. Defendants 2 to 6 filed a common statement. Defendant 7 filed a separate statement. Defendant 7 died and his L.Rs were brought on record. Defendants 7(a) and 7(b) adopted the written statement filed by deceased defendant 7. Defendant averred that no notice was given in E.P. No. 35 of 1971. They further stated that a compromise with regard to house property with the consent of the plaintiff and other legal representatives was arrived at on 30-10-1991. Compromise was within the knowledge of the plaintiff. Compromise is legal and valid. Defendant 7 denied the plaint averments and also stated that no cause of action is arising to file the suit. It is also stated that if the plaintiff had any objection, he could have as well-raised that objection in the execution proceedings and no separate suit would lie. The learned Trial Judge has framed the following issues:
(1) Whether the plaintiffs prove that the compromise petition filed before the Court in E.P. No. 35 of 1971 on 30-10-1991 is the result of fraud and is not binding on them?
(2) Whether the plaintiffs are entitled to the reliefs which are prayed in this suit?
(3) What order/decree?
Parties examined each witness on either side. Rama Gajanan Vedeshwar was examined as P.W. 1 and Ganesh Subray Bhat Vedeshwar was examined as D.W. 1. 8 documents were marked for plaintiff and 6 documents were marked for the defendants. After trial, the learned Judge by a detailed order has chosen to dismiss the suit. Learned Trial Judge noticed Order 23, Rule 3 of the CPC. The said section reads as under:
“Compromise of suit.-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit”.
7. Admittedly compromise has been entered into between the parties and the compromise petition has been signed by Advocates to the parties concerned. Learned Trial Judge has noticed the role of an Advocate in entering into a compromise. Order 23, Rule 3 in terms of the amendment provides for a compromise petition “in writing” and signed by the parties. The Supreme Court in Byram Pestonji Gariwala v. Union Bank of India and Ors., , noticed the object of Order 23, Rule 3 of the CPC. At para 43 the Supreme Court has ruled as under:
“A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of long drawn out fight. A compromise decree creates an estoppel by judgment”.
Supreme Court also noticed in para 39 as under:
“To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can Counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated”.
8. After noticing this judgment, the learned Trial Judge holds against the plaintiffs. For the said purpose, he notices the admitted facts in para 24 of the judgment. Admitted facts reveal that O.S. No. 238 of 1954 was filed for partition in 1954. It was decreed and an appeal was preferred in Civil Appeal No. 181 of 1957 which was dismissed. Execution petition was filed in E.P. No. 35 of 1971. A dispute that arose in 1954 could not see the light of the day till 48 long years until the compromise is arrived at in 1991. 1954 suit resulted in 1957 appeal and it further resulted in E.P. No. 35 of 1971 and E.P. No. 35 of 1971 resulted in a compromise in 1991. The compromise that was entered is challenged after several years. The learned Trial Judge noticed the relationship between the parties and the evidence on record. In the judgment, he elaborately discussed the evidence and thereafter, he noticed the compromise petition. He noticed that the execution petition was thus disposed of in terms of the compromise petition. An argument was also advanced that the parties were not present at the time of filing of the compromise petition. The learned Trial Judge noticed the judgment in 2001 Supreme Appeals Reporter (Civil) 168 with regard to non-appearance of the parties in the matter of compromise. Supreme Court has ruled that satisfaction of the Court that the suit has been adjusted wholly of in part by any lawful agreement or compromise in writing and signed by the parties is a necessary requirement in terms of Order 23, Rule 3 of the CPC. Court has noticed that a lawyer has a duty in discharging his professional assignment, has a duty to his client, a duty to his opponent, a duty to the Court, a duty to the society at large and a duty to himself. The Supreme Court has noticed the role of a lawyer in the said judgment. Though an allegation of fraud was pleaded against the Counsel, no such proof was available in the case on hand. Noticing various judgments of the Supreme Court and noticing the various circumstances that resulted in a compromise of a long drawn litigation, the Court ruled that no case as such was made out for canceling the compromise decree by detailed order in a judgment and decree dated 31-8-2002. The said order is based on facts.
9. This order was challenged in R.A. No. 87 of 2002. Appellate Judge after referring to the facts and the material on record has chosen to frame 3 points in para 11 reading as under:
1. Whether the plaintiffs have proved that the compromise petition filed in E.P. No. 35 of 1971 on 30-10-1991 is a result of fraud and not binding on them?
2. Whether the judgment and decree under appeal suffers from any illegality and is liable to be set aside?
3. What order?
He noticed the history of the case, terms of the compromise and the material on record and finally in para 13 he noticed non-proof of fraud, mis-representation, etc. In para 15 after noticing all these aspects of the matter, the learned Appellate Judge noticed the submission of the appellants Counsel that the authority of the Advocate is not at all in question and is not in dispute. After noticing the submission, he also notices various case-laws including Byram Pestonji Gariwala’s case; 2000(4) Civil L.J. 66 and Divisional General Manager and Divisional Controller, Karnataka State Road Transport Corporation, Raichur Division, Raichur v. Kamappa and Ors., and other judgments. After noticing various case-laws in the judgment, the learned Appellate Judge holds that in the absence of any fraud, mis-representation, etc., against the Counsel, compromise was rightly accepted by the Trial Judge. He has accepted the finding of the Trial Judge.
10. The Appellate Judge in para 20 notices want of pleading and want of proof with regard to fraud. Learned appellate Judge however while considering the role of defendant 1-brother of plaintiff in the case on hand, noticed that he was looking after the affairs of the execution case. He filed an application to appoint a Commissioner for effecting partition. The same was opposed. Defendants 2 to 6 filed separate statement of objection supporting the compromise. However, now the son of the respondent 3 viz., Vinayak Anant Bhat has filed an affidavit annexed to I.A. No. I on behalf of the appellants that he was colluding with the appellants/plaintiffs. Defendant 1-Narayan Gajanan Vedeshwar did not file any statement nor did he examine any witnesses. He got filed the suit through the plaintiffs and even this appeal is also got filed by him supported by his own affidavit annexed to LA. No. IV. I.A. No. IV was filed to seek for production of certain documents by way of additional evidence. After noticing the conduct of respondent 1 in the matter, the learned Trial Judge comes to a categorical finding that the allegation of respondents 7 and 8 who are the adopted children of original plaintiff is proved. He also notices that E.P. No. 35 of 1971 is still pending and the decree was returned from the Deputy Commissioner. Tahsildar was appointed to effect partition. He issued notices. The present plaintiffs and the defendants challenged the same in the High Court which came to be dismissed. After noticing all these aspects of the matter, he comes to a conclusion that a sum of Rs. 5,000/-has to be allowed in the case on hand. This order to ray mind also cannot be said to suffer from any errors warranting my interference.
11. The appellants somehow want to drag on the proceedings and they do not want even a compromise petition to end a litigation. Endless litigations to some litigants have become a source of avocation. A settled execution petition is sought to be re-settled by resorting to fresh suit proceeding which rightly has been negatived by both the Courts below. I am not inclined to exercise my appellate jurisdiction in a matter like this in the absence of any substantial question of law and in the light of the order being based on facts. Appeal stands dismissed. Also I deem it not proper to award costs in the case on hand in the light of obstructing a long drawn litigation by way of a suit without proper pleadings/proof in the appeal.
R.S.A. No. 903 of 2003:
12. The facts are as under: O.S. No. 5 of 1993 was filed by Ganesh Subray Bhat Vedeshwar. The case of the plaintiff was that Subray Bhat Vedeshwar, Gajanana Bhat Vedeshwar and Mahabaleshwar Bhat Vedeshwar are the son of one Appu Bhat Vedeshwar. Subray Bhat Vedeshwar, Mahabaleshwar Bhat and Gajanan are no more. Defendants 1 to 5 are the sons of Gajanan Appu Bhat. Defendant 7 Ganapati is the son of Mahabaleshwar Appu Bhat. Plaintiff was adopted by Subray Bhat by a registered deed of adoption. He is the adopted son. Deceased Subray Bhat and defendants form a joint Hindu family. The family had the right to perform the pooja of the temples of Shree Mahabaleshwar. There was a partition in O.S. No. 238 of 1954. The said proceedings were initiated by the adoptive father of the plaintiff-Subray Bhat. Compromise was entered into in the execution proceedings. The 1st defendant-Krishna Gajanan Vedeshwar filed a suit in O.S. No. 7 of 1992. Plaintiff stated that he was performing pooja along with Subray Bhat for some time. He has acquired l/3rd share in the house situate in Sy. No. 727 of Gokak Village and the portion of the said house which is allotted to the plaintiff is the western most portion touching Gayatri Oni. Family of the plaintiff has a right to worship and perform pooja in the temple for a period of 5-6 months every year in the months of Pushya, Magha, Vaishaka, Jestha, Bhadrapadha and Ashvija. Arrangements were made for performing the pooja each by term. The rights of Bhagirathi the mother of Subray Appu Bhat devolved on Subray Appu Bhat and thereafter on plaintiff. Plaintiff has reserved his claim to his share in those lands. Defendant 6 is overall administrator and trustee of Svastam Ganapati temple. On coming to know that the defendant did not permit him to perform pooja, a suit for injunction was filed.
13. Defendant 7 got impleaded. Defendants 1 to 5 filed a common statement. They denied the adoption of the plaintiff by Subray Appu Bhat. According to them, adoption is not valid and no acceptable ceremony has taken place. They also referred to the earlier litigation in the matter. It is further stated that Subray Bhat in his old age did not take interest and he did not assert his right. No right accrues to the plaintiff. They also denied various other allegations and they want the suit to be dismissed.
14. Defendant 7 filed a separate statement and he also questioned the compromise. He also refers to Original Suit No. 7 of 1992 and in the light of pendency of O.S. No. 7 of 1992 the subsequent suit is not maintainable. One witness was examined on behalf of the plaintiff and 3 witnesses have been examined on behalf of the defendants. 28 documents were filed on behalf of the plaintiff and 13 documents were filed on behalf of the defendants. The learned Trial Judge framed 5 issues in para 7 and he has answered the same in para 8. The crucial issue is with regard to the right to perform pooja. The learned Trial Judge notices the various contentions of the parties in his detailed order. Thereafter, he notices the objection statement filed by defendant 7 with regard to right of worship in the two suit temples. After noticing everything, he also noticed Ex. P. 10 which was filed in O.S. No. 288 of 1954. After noticing the oral evidence, he comes to the conclusion that deceased Subray Bhat had a right to perform pooja in the temple of Shree Maha Ganapati and Shree Mahabaleshwar temple of Gokarn. He noticed that Ex. P. 10 was filed by the father of defendant 7 and he has admitted the right of pooja. He also notices the relationship between the parties. After noticing the various aspects of the matter, he gives a finding at para 10 that deceased Subray Bhat had a right to perform pooja in the two temples.
15. Thereafter, he noticed the right of the plaintiff. Adoption was an issue. The learned Trial Judge noticed Ex. P. 20 the registered adoption deed. He also noticed the signatures at Ex. P. 20 at Exs. P. 20(a) and (b) in the adoption deed. Exs. P. 20(a) and (b) are the signatures of the adoptive mother and adoptive father. Thereafter, the learned Trial Judge noticed Section 16 of the Hindu Adoption and Maintenance Act, 1956, with regard to presumption as to registered documents relating to adoption. After noticing Section 16 and the evidence on record, the learned Trial Judge in para 15 comes to the conclusion that from the entire evidence of P.W. 1 and D.W. 1 it is crystal clear that the evidence was set up by the plaintiff. He further noticed in para 16 the proceedings in Execution Petition No. 35 of 1971. In those proceedings, the present plaintiff adopted son filed an application to implead and allowed him to continue the present proceedings. It was contested on the ground that there is no adoption at all. The Trial Judge, in those proceedings in terms of Ex. P. 22 considered the Execution Petition No. 35 of 1971 and rejected his contention. That order has become final. This was also noticed by the learned Judge to hold in favour of the plaintiff in the matter of adoption. He noticed Ex. D. 1 the settlement and rejected the contention of the defendant. After noticing various case-laws and the evidence on record, the learned Trial Judge comes to the conclusion that an arrangement was made between the parties with regard to the performing of poojas each by 20 days which is continued up to today. He noticed Ex. P. 1 and thereafter he held that in terms of Exs. P. 10 and P. 11 the case of the plaintiff is to be accepted. He also negatived the contention that Subray Bhat did not have vedike profession in the light of the said Ex. P. 10 in the case on hand.
16. The learned Trial Judge notices that Rules 99 and 100 of Order 21 are not applicable to the facts of this case.
17. Both these rules if carefully read are not applicable as rightly held by the learned Trial Judge. The Trial Judge ultimately held in para 28 that the right is proved by the plaintiff. While considering additional Issue No. 1 he again notices the evidence, the pleadings in law and ultimately upholds in favour of the defendant. The Trial Judge on appreciation of evidence has dismissed the claim of suit house and passed a decree insofar as temple rights are concerned. He has granted injunction in terms of his order.
18. When this order was challenged in appeal, the appellate Judge after noticing various aspects of the matter, framed two issues reading as under for his consideration:
1. Whether appellants have established that the impugned judgment and decree of the lower Court are illegal, erroneous and they are liable to be set aside?
2. What order?
He noticed Section 16 of the Hindu Adoption and Maintenance Act and after noticing the same and in the light of the earlier orders, he holds rightly on fact that issue of adoption could not have been agitated again in the proceeding in the light of Ex. P. 10 the registered document. Insofar as the right of Subray Bhat is concerned, after noticing the material facts he agrees with the learned Trial Judge. Material on record would show that Subray Bhat had adopted his daughter’s son. He further notices Ex. D. 1 and other materials and thereafter he agrees with the findings of the learned Trial Judge. He also notices that parties have right to worship was not shown to have been involved in E.P. No. 35 of 1971. Therefore, the learned Judge rightly rejects his plea. The order of the learned Appellate Judge is based on facts.
19. However, the learned Counsel for the appellant argues before me that the pooja right is right to an immovable property. In this connection he relies on a few judgments. The earlier proceeding would show that pooja rights are not considered to be immovable property. Therefore, Order 21, Rule 97 is not applicable.
20. Learned Counsel relies on Rahasa Pandiani (dead) by L.Rs and Ors. v. Gokulananda Panda and Ors., . A reading of the said judgment would show that in that case no registered document was available and no clinching evidence was available. It was in those circumstances, the Court ruled in favour of the succeeding party. That judgment is not applicable to the facts of this case. Learned Counsel relies on Ram Rattan (dead) by L.Rs v. Bajrang Lal and Ors., . That again is clearly distinguishable. Right to worship was considered in the said case. The facts of this case are totally different and the said judgment is not applicable to the facts of this case. That was a case in which the Court was concerned with regard to gift and in these circumstances, the Court has said that right of worship can be done only by registered document. Order 21, Rule 97 is not available in respect of pooja rights. The present set of facts would show that what is being urged is one of injunction in the case on hand. That has been rightly granted by the learned Trial Judge. I do not think that a case is made out by the plaintiff. The judgment in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, , is not applicable because that was a case which was dealing with possession. This judgment also is based on facts. No substantial grounds arise for my consideration. Appeal stands rejected.
21. Before concluding, this Court has to notice the conduct of the appellants. A compromise decree of 1954 is being misused or abused by civil litigations subsequently for one reason or the other. The present defendant (respondent) is none other than the grandson of Subray Appu Bhat who is none other than the uncle of the present appellants. He is continuing the pooja even as on today. No impediment as such is shown to me by the appellants. Right of pooja in a temple is sacred and that sacred right is being enforced by the respondent in the light of an adoption in terms of registered document after a long drawn battle and that is being unnecessarily contested by the present appellants. Time has come for this Court to remind that temple issues are not to be unnecessarily raised in Courts of law to maintain temple peace and harmony. Orders are based on facts as no question of law arises for my consideration.
Accordingly, both appeals stand rejected with costs.