JUDGMENT
N.C. Jain, J.
1. This judgment would dispose of Regular Second Appeal Nos. 1595 and 1628 of 1987 as both the appeals are between the same parties. However, I would pick up Regular Second Appeal No. 8 of 1987 in the first instance as the decision of this appeal would have direct bearing on the decision to be arrived at in the other appeal, that is R.S.A. No. 1595 of 1987.
2. This litigation to start with commenced between three brothers namely, Bakshi, Pakhar and Mohinder appellants sons of Naraina. Mohinder, admittedly, purchased 121 kanals 9 Marias of land from the Central Government for a sum of Rupees 8500/-. A mutation of exchange of the aforesaid land of Mohinder was entered and sanctioned by virtue of which the land stood transferred in favour of Bakshi and Pakhar in lieu of houses and a tour belonging to Bakshi and Pakhar. The mutation of exchange is No. 685 dated 31.8.1963. In consequence of the aforesaid mutation, the appellant stood divested of his ownership rights of the land measuring 121 Kanals 9 Marias. The mutation of exchange gave rise to the filing of a suit by the appellant wherein exchange of his land measuring 121 Kanals 9 Marias was challenged on the ground that he was forced to make a statement before the Revenue Officer admitting the exchange. In that suit a compromise was entered into by Jagar attorney of Bakshi and Pakhar who happened to be living in Singapore at the relevant time. According to the compromise decree dated 23.1. 1969 Mohinder was made owner of 40 kanals of land. The compromise decree was challenged by Bakshi and heirs of Pakhar by way of filing the present suit No. 385 of 1981 which has given rise to the filing of R. S. A. No. 1628 of 1987.
3. The case of the plaintiffs in this suit (No. 385 of 1981) is that they never authorised their attorney to compromise the suit and, therefore, they were the owners of 40 Kanals of land and were entitled to a decree for possession of the aforesaid land. Defendant-appellant asserted in the written statement that he became the owner of 40 Kanals of land on account of a compromise decree which was valid. On the basis of the pleas of the parties, the trial Court framed the following issues :-
(i) Whether the plaintiffs are owners of the suit land? If so, to what effect ? OPP
(ii) Whether the decree dated 3.1.69 is not binding on the plaintiffs ? If so, to what effect ? OPD
(iii) Whether the present suit is barred by the principle of res judicata? OPD
(iv) Whether the defendants are in adverse possession of the suit land ? OPD
(v) Whether the suit in the present form is not maintainable? OPD
(vi) Whether the suit is within limitation ? OPD.
(vii) Whether the plaintiffs are stopped by their acts and conduct to file this suit ? OPD
(ix) Whether the plaintiffs are entitled to the injunction prayed for ? OPP
(x) Relief.
4. The trial Court dismissed the suit of Bakshi and Pakhar. The judgment and decree passed by the trial Court has been upset by the appellate Court giving rise to the filing of the second appeal by Mohinder defendant.
5. It has been found by the appellate court that the attorney, in view of terms of the power of attorney, had no authority to enter into a compromise In order to appreciate whether the attorney of Bakshi and Pakhar had the authority to enter into a compromise or not, it is necessary to have a look at the relevant clauses of the Power of Attorney. The relevant clauses which have been referred to by the counsel for the parties during the course of arguments and which have been so interpreted by the courts below read as under :
(a) Mr. Jagar s/o Mehanga can give the said properties on rental terms to others and for own use.
(b) He cannot sell the properties without our permission.
(c) He can also run any civil suits if any in this matter, on our behalf.
(d) This power of attorney will be ceased within 24 hours if required.
(e) We will not be responsible for any debts and other liabilities of Mr. Jagar son of Mehanga.
6. The appellate court on an interpretation of the afore-mentioned clauses of the power of Attorney came to the conclusion that Jagar son of Mehanga attorney was not authorised by Bakshi and Pakhar to enter into any compromise. In the view of the appellate court, the words ‘run any civil suits’ do not include the power to compromise. it has further been found that clause (b) prohibited Jagar from selling properties of Bakshi and Pakhar without their permission and according to clause (e) they were not responsible for any debts and other liabilities of Jagar. While interpreting the afore-mentioned clauses of Power of Attorney the appellate court came to the conclusion that the intention of Bakshi and Pakhar was that they would not be bound by any debt or liability which Jagar may incur. It is further the view of the appellate court that since Jagar could not alienate the property, the giving away of 40 Kanals of land would amount to alienation. It has further been found that by virtue of the Power of Attorney, Jagar was only authorised to deal with the properties situated at village Mersingha and no authority was vested in Jagar to deal with the land situate in village Khurampur and since the land situated in Khurampur has been compromised, he had no authority whatsoever to deal with the property situated in the aforementioned village.
7. Mr. M. L. Sarin, Senior Advocate; learned counsel for the appellant Mohinder has vehemently argued that there was no village by the name of Mersingha and, therefore, the appellate Court could not read something more in the Power of Attorney by describing that Bakshi and Pakhar had given the power of Attorney for the properties mentioned in village Malsian. It has further been argued by the counsel that the appellate court has committed an error in interpreting clause (b) of the Power of Attorney inasmuch as a compromise would not amount to an alienation. Mr. Sarin has further argued that simply because Bakshi and Pakhar were not to be responsible for any debt or other liabilities of Jagar which be might incur, the same does not mean that he could not compromise the suit. The learned counsel has raised yet another argument that running of civil suits would include power to compromise. On the point of limitation it has been argued by the learned counsel that Article 59 of the Limitation Act prescribes the limitation of 3 years and this Article would apply and not Article 65 of the Limitation.
8. After hearing the learned counsel for the parties, I am of the view that there is no force in the arguments of the learned counsel for appellant. Even if it be assumed that there is some fallacy in the view of the appellate court that Power of Attorney did not relate to administration of properties of village Malsian, there being no mention about the land of Khurampur where the land in dispute is admittedly situated, Jagar did not get any authority to deal with the land of village Khurampur by way of Power of Attorney. May be the giving away of 40 Kanals of land to Mohinder would not in the strict sense. amount to alienation, none the less the intention of Bakshi and Pakhar in restricting the sale of the properties without their permission is a clear indicator that their properties be not done away with until and unless Jagar gets permission. In any case, without elaborating much on this point, this court is inclined to agree with the Boding recorded by the appellate court that clause (c) of the Power of Attorney only authorised the attorney to conduct civil suits but the same does not mean that any authority was given to the attorney to deprive the executors of the Power of Attorney from the right to own 40 Kanals of Land. Clause (e), according to me, has got no relevance and need not have been interpreted by the appellate court to come to any conclusion.
9. This Court is unable to endorse the argument of the learned counsel for the appellant that the suit is barred by time. The suit, in ray view, was filed by Bakshi and Pakhar on the basis of their title and, therefore. Article 65 of the Limitation Act would apply. It has remained undisputed before this Court that after the passing of the decree dated 23.1.1969 Mohinder did not get mutation entered till 5. 3.1981 when an entry was made by the Patwari vide Exn. P.6. The mutation was rejected by the Assistant Collector Ist Grade vide order Exh. P-5 and order of the Assistant Collector Ist Grade was confirmed by the Collector Jallandhar vide Exh. P 7. The rights of the plaintiffs were put in jeopardy on the sanction of mutation and, therefore, he was well within his right to bring the suit only after the mutation was entered.
10. Faced with this situation, the learned counsel for the appellant has argued that the appellate court while allowing the appeal has committed an apparent error in not reviving the suit of the appellant which was instituted by him challenging the mutation of exchange It. has been argued that setting aside of the compromise decree in the previous suit would not automatically mean the death of his suit which was yet to proceed on merits.
11. In order to appreciate the argument of Mr. Sarin for the revival of the previous suit, it is necessary to refer to Civil Suit No. 166 of 1983 giving rise to the filing of the Regular Second Appeal No. 1595 of 1987. Mohinder appellant after the institution of the suit by Pakhar and Bakshi challenging the compromise decree instituted Civil Suit No. 166 of 1983 for declaration that he was owner in possession of the land measuring 121 Kanal 9 Marias. This suit has been dismissed by the Courts below giving rise to the riling of Regular Second Appeal No. 1595 of 1987. Mr. Sarin, learned counsel for the appellant has submitted that the suit filed by his client in the year 1963 has got to be revived in law. The tiling of another suit in the year 1983 cannot deprive his client of his right to have his original suit revived. He has further argued that the second suit was surplusage and it appears that the plaintiff was ill advised to file a second suit. He has opted to withdraw Appeal No, 1595 of 1987 which has arisen out of the suit by him in the year 1983.
12. Mr. M. L. Saggar, learned counsel for the respondents, on the other hand, has argued that since the appellant Mohinder himself has filed the second suit which has been dismissed by the courts below, the question of revival of his original suit docs not arise at this stage.
13. Having given ray thoughtful consideration to this aspect of the case, I am of the opinion that the suit filed by Mohinder challenging mutation has got to be continued in the trial Court. A successful challenge against the compromise decree entered in a suit would not have the effect of throwing away the suit of the plaintiff on merits and, therefore, the subsequent conduct of the plaintiff in filing other suit would not mean that he is stopped from continuing with that suit in which compromise decree was entered into and that compromise decree has been successfully challenged by the persons who were defendants in that suit. The plaintiff, in my view, after the setting aside of the compromise decree is definitely entitled to continue with his original suit and, therefore, the appellate court was bound in law to direct the revival of the suit. Institution of the second suit, in my view, would not make any difference and such a suit can always be permitted to be withdrawn under Section 151 of the Code of Civil Procedure Consequently, I permit Mohinder to with-draw R S. A. No. 1595 of 1987 as wall as suit No. 166 of 1983 and order the trial Court to proceed with the original suit from the stage before the compromise was effected. The revival of the original suit would necessarily mean that if any injunction was granted in favour of Mohinder in that suit, the same would continue to operate during the pendency of his suit The parties are also at liberty to apply for interim order before the trial Court. Since a long time has elapsed, the trial Court is directed to proceed with the suit expeditiously and decide it within throe months from the date the parties put in appearance before it even if the case has to be fixed for hearing on day-to-day basis.
14. For the reasons recorded above R. S. A. No. 1628 of 1987 is dismissed with no costs.
15. The parties through their counsel are directed to appear before the trial Court on 1.9.1992. A copy of the judgment alongwith the records of the case be despatched to the trial Court forthwith.