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.