JUDGMENT
G.C. Garg, J.
1. This order will dispose of RSA Nos. 342 and 360 of 1977.
2. These appeals have a chequered history.
3. Raj Kaur filed a suit against Dharam Singh and Bachan Singh being Civil Suit No. 77 of 1959 at Una claiming possession and ownership of land measuring 238 kanals 7 marlas in village Lodhipur, Tehsil Una, District Hoshiarpur. The suit was decreed by the trial Court by judgment and decree dated 21.6.1956 for possession of 1/2 share in land measuring 238 kanals 7 marlas. Raj Kaur died on 23.7.1956. Mehar Singh and Chhanga Singh are the sons of Inder Singh, brother of Raj Kaur. They claimed that Raj Kaur left behind a Will dated 18.6.1956 in their favour i.e., Mehar Singh and Chhanga Singh. Dharam Singh and Bachan Singh did not challenge the decree passed against them by the trial Court in the suit filed by Raj Kaur against them. However, Mehar Singh and Chhanga Singh claiming to be legatees of Raj Kaur, preferred an appeal against the judgment and decree dated 21.6.1956. They in the appeal claimed that trial Court ought to have decreed the suit for the entire land namely 238 kanals 7 marlas. This appeal was dismissed by the learned Additional District Judge, Hoshiarpur by judgment and decree dated 14.8.1957 after coming to the conclusion that the Will challenged to have been executed by Raj Kaur in their favour has not been duly proved and the appeal was thus not competent at their instance. Mehar Singh and Chhanga Singh aggrieved by the order of the Appellate Court filed an appeal in this Court which was registered as RSA 1275 of 1957. This Court allowed the appeal by order dated 11.8.1964 after coming to the conclusion that the Will was duly executed and was free from suspicion. The appeal filed by Mehar Singh and Chhanga Singh was thus competent. The matter was, therefore, remanded to Additional District Judge for disposal of the appeal on its own merits. Dharam Singh and Bachan Singh sought leave to file an appeal from the learned Single Judge, which was granted. The Letter Patent Appeal was registered as LPA No. 386 of 1964.
3. A compromise was effected between the parties during the pendency of the LPA and appeal was disposed of on compromise. Under the compromise, the legal heirs of Raj Kaur i.e. Mehar Singh and Chhanga Singh got 1/3rd share in the land measuring 238 kanals 7 marlas i.e. of the entire land, whereas Dharam Singh and Bachan Singh, defendants in the suit got the remaining 2/3rd share in the entire land. The statements of the parties were recorded. Chhanga Singh being one of the LRs of Raj Kaur signed the statement recorded by the Letters Patent Bench. His counsel also signed it. However, statement of Mehar Singh was typed but it was neither signed by him or his counsel. Chhanga Singh sought review of the order passed by LPA Bench whereby the appeal was disposed of as compromised. This review application moved at the instance of Chhanga Singh was dismissed. Chhanga Singh filed an application under Article 133 of the Constitution seeking leave to appeal to the Supreme Court, but it was dismissed by the LPA Bench.
4. After the conclusion of the first round of litigation, Chhanga Singh filed a suit in the Court of the Subordinate Judge, 1st Class at Anandpur Sahib on 17.8.1971 challenging the compromise dated 12.8.1968 recorded by the LPA Bench. Mehar Singh was impleaded as a defendant in this suit, beside Dharam Singh and Bachan Singh. This suit was dismissed by the trial Court by judgment and decree dated 8.8.1975. Appeal there again was dismissed by the Additional District Judge by judgment and decree dated 5.11.1976. Hence these two appeals, one at the instance of Chhanga Singh and other at the instance of Mehar Singh.
5. Mr. Sharma, learned Counsel for the appellant first submitted that the subject matter of the appeal before the High Court in the LPA was whether the learned Single Judge was justified in pronouncing on the validity of the Will and remanding the matter to the First Appellate court after recording a finding that the appeal on behalf of the legatees was maintainable. According to learned Counsel, the dispute in the appeal was only qua 1/2 of the share in the land, which was the subject-matter of the suit as the defendants had not challenged the decree of the trial Court whereby the suit of Raj Kaur was decreed to the extent of 1/2 share and therefore, the entire land was not the subject matter of the appeal before the Letters Patent Bench.
6. Learned Counsel further submitted that Chhanga Singh and Mehar Singh were respondents in the LPA and were represented by two different Counsels Mehar Singh or his counsel did not sign the statement effecting the compromise between the parties. Chhanga Singh and his counsel had accepted and signed the statement regarding the compromise between the parties. Once that is so, the order passed by the LPA Bench is a nullity and deserves to be set aside. Mr. Sharma further submitted that Raj Kaur had already a decree in her favour regarding 1/2 of the land and defendants having not preferred any appeal against the judgment and decree of the trial Court, the LPA Bench could not modify the decree of the trial Court, which was not even the subject-matter of the appeal and thereby reduce the share of Raj Kaur from 1/2 to 1/3 in the absence of any appeal by the defendants and in any case compromise could be only in respect of 1/2 of the land and not whole of the land. In the end Mr. Sharma argued that the compromise has not been registered and therefore, it conveys no title.
7. After hearing learned counsel for the parties and having regard to the facts and circumstances of this case, as noticed above, I am of the opinion that appeal at the instance of Mehar Singh (RSA No. 342 of 1977) is not maintainable. Mehar Singh did not challenge the compromise recorded by the LPA Bench by filing a suit. He was only impleaded as a performa defendant in the suit. He even did not prefer an appeal against the judgment and decree of the trial Court whereby suit filed by Chhanga Singh was dismissed by judgment and decree dated 8.8.1975. The second appeal filed at his instance is not maintainable. The appeal preferred by him is thus dismissed.
8. As regards the appeal of Chhanga Singh, suffice it to say that Chhanga Singh and his counsel signed the compromise before the LPA Bench. Not only this, he moved an application under Article 133 of the Constitution seeking leave of appeal to Supreme Court. But the same was also dismissed. It was thereafter he filed a suit challenging the compromise. Learned Counsel appearing for Chhanga Singh, during the course of hearing, could not prove any fact which may show that the compromise arrived at before the LPA Bench was the outcome of fraud, coercion, undue influence or any mis-representation or that the Bench recording the compromise had no jurisdiction to do so. Once that is so, a separate suit is not maintainable in view of judgment of this Court in the case of Smt. Raksha Rani v. Ram Lai, (1986-2)90 P.L.R. 504. In the above noted case, it was specifically held that separate suit is maintainable to challenge a compromise or a decree only it it is based on fraud otherwise the party aggrieved is to prefer an appeal against the original decree in which the compromise was arrived at or the decision was rendered. Reference in that behalf can also be made to the case of Gurdev Kaur and Anr. v. Mehar Singh and Ors., A.I.R. 1989 Punjab & Haryana 324. In the facts of this case, the only remedy available to Mehar Singh or Chhanga Singh was to prefer a special leave petition in the Supreme Court under the provisions of Article 133 of the Constitution of India and not to file a separate suit, as nothing is shown that the order passed by the LPA Bench was the outcome of fraud.
9. In that view of they matter, it is not necessary to go into the contentions raised by the learned Counsel for the appellant as noticed above.
10. For the reasons recorded above, RSA 360 of 1977 filed by Chhanga Singh has also no merit and the same is dismissed but with no order as to costs.
