JUDGMENT
Shambhu Prasad Singh, J.
1. This second appeal by defendant No. 1 arises out of a suit for declaration of title to and recovery of possession over 3 bighas, 17 kathas and 91/2 dhurs of land, situate in village Siswa Patna, in the district of Champaran.
2. Admittedly, the lands in dispute belonged to one Ramdheyan Singh. He died leaving behind his widow Jiana Kuar. On 8th of May, 1938, she executed a registered deed of gift in respect of 7 bighas 15 kathas and 10 dhurs of land including the suit lands in favour of the appellant. Jiana Kuar died in 194.5. The plaintiff-Respondent instituted Title Suit No. 36 of 1947 claiming the gifted lands as the next reversioner of the estate of Ramdheyan Singh. The present appellant was a defendant to that suit. He was a minor at that time and was placed under the guardianship of this natural guardian. The dispute was referred to arbitration through court. The Arbitrators submitted their award and the Court passed a decree according to it. The Plaintiff-Respondent, according to that decree, was given the lands in dispute. His case is that he got possession over the suit land but was subsequently dispossessed in 1961 and, therefore, was obliged to institute the present suit.
3. The main defence of the appellant were-
(i) that he was a minor and the reference to arbitration being in violation of Order 32, Rule 7 of the Code of Civil Procedure, the award decree was not binding on him; and (ii) that the plaintiff-respondent did not execute the decree in his favour and never got possession over the suit lands and, therefore, his claim was barred by limitation. The appellant also challenged the claim of the plaintiff-Respondent that he was the next reversioner of the estate of Ramdheyan Singh and thus entitled to the inheritance of Jiana Kuer and further averred that fraud was practised upon his father, his guardian in the previous suit, who was addicted to Ganja and Bhang, in getting the matter referred to arbitration. 4. The trial Court found in favour of the plaintiff-Respondent and against the appellants on all points except the genealogy and decreed the suit. The lower appellate Court has substantially confirmed those findings and decree of the trial Court. 5. Mr. Lal Narayan Sinha, appearing on behalf of the appellant, has urged that (i) both the Courts below have erred in holding that the decree in T. S. 36 of
1947 was binding on the appellant inasmuch as while referring the dispute in that suit to arbitration the Court did not comply with the requirements of Order 32, Rule 7 of the Code of Civil Procedure; (ii) the finding recorded by the trial Court that the plaintiff-Respondent must be deemed to be in constructive possession of the suit lands is bad in law and, at any rate, on such a finding, he cannot claim that the suit is not barred by limitation and (iii) that the finding of the lower appellate Court, the final Court of fact, that the plaintiff-respondent came in actual possession is mot in accordance with law.
6. In Title Suit No. 36 of 1947, the father of the appellant was his guardian. He made an application to the Court for referring the case to arbitration. He also filed a separate petition for permission to refer the suit to arbitration on behalf of the present appellant who was minor at that time. Ext. D (1) is the order which the court passed on those applications on 18th of July, 1947. It reads:
“Parties file hazris. Later, parties file a petition to refer the case to arbitration. A separate petition for permission to refer the suit to arbitration on behalf of the minor defendant has been filed by the natural guardian. Order–Let the order of reference be sent to Umpire on plaintiff’s filing requisites including copies of pleadings by 21-7-1947. Put up on 21-7-1947 for further orders”.
After requisites were filed, on 21st of July, 1947, the court ordered for sending the writ of reference to arbitration to the Umpire with necessary papers fixing 7-8-1947 for submission of the award. According to Mr. Lal Narayan Sinha, the order dated 18-7-1947 did not comply with the requirements of Order 32, Rule 7 of the Code of Civil Procedure and hence the award made by Arbitrators and decree passed on basis thereof were not binding on the appellant. Order 32, Rule 7 of the Code runs as follows:–
“(1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.”
Mr. Sinha contended that Order 32, Rule 7 (1) of the Code required the Court to expressly record its leave for compromising the suit on behalf of the minor or for making a reference to arbitration and the order expressly recording such a leave also must indicate on the very face of it that the Court was satisfied that the compromise was for the benefit of minor. In
absence of these, he maintained that the compromise and reference to arbitration did not bind the minor. He relied on the decisions of this Court in Awadhesh Prasad Missir v. Widow of Tribeni Prasad Missir, AIR 1940 Pat 663, and Sheosagar Singh v. Sitaram Kumhar, AIR 1952 Pat 48. As it appears from the facts of Awadhesh Prasad Missir’s case, the Court which recorded the compromise and opined that it was for the benefit of the minor defendant-Respondents, was not aware of the fact that the minors were represented through a guardian ad litem who had no connection with the family. The compromise petition was filed on behalf of the natural guardian who was not guardian of the minors for the purpose of the suit. On these facts, the compromise had to be held as not binding on the minors. It was further observed in that case as follows:–
“In my judgment a guardian ad litem cannot enter, into a compromise without the leave of the Court, and such leave must be expressly recorded by the Court. The terms of Order 32, Rule 7, Civil Procedure Code, are not complied with by merely asking the Court to approve of a compromise which has actually been entered into. The language of the rule makes it clear that the Court must consider the proposed terms before they are agreed to by the parties and must grant leave to the guardian ad litem to enter into the compromise. It has been strongly urged on behalf of the respondents that approving of the terms of a compromise after it has been entered into is sufficient compliance with Order 32, Rule 7, Civil Procedure Code, but, in my judgment, approving of something already done is very different from considering the terms of a proposed compromise and granting leave to a guardian ad litem to enter into such a compromise.”
These observations were explained by the Supreme Court in the case of Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280 to which I shall refer in detail later on.
7. In Sheosagar Singh’s case, AIR 1952 Pat 48, three applications were filed in the Court on the same day; one for compromise, another for cancelling the appointment of the pleader guardian ad litem and appointing Respondent No. 2 as guardian of minor Respondent No. 1 and the third for permission to compromise. In the order which was passed by the Court permitting compromise, there was nothing to indicate that it was for the benefit of the minors. The terms of the compromise on the very face of it suggested that they were against the interest of the minors and, therefore, it was manifest that the Court which recorded the compromise did not apply itself to the question whether the compromise was for the benefit of the minor or not. It was in these circumstances that the compromise was held not binding on the minor. However, it was pointed out that “no particular formula is required to be used by the Court in granting leave to a guardian-ad-litem to compromise a suit on behalf of a minor.”
8. On the other hand, learned Counsel for the Respondent relied on the decision of the Supreme Court in AIR 1951 SC 280, already referred to above. The order granting leave to the guardian to compromise with which their Lordships had to deal with was as follows:–
“Petition of compromise put up. The proposed guardian of minor plaintiff and defendants have filed petitions for permission to compromise. Permission granted as the compromise is for the minor’s benefit.”
Their Lordships overruled the contention that this order was insufficient to show that the Judge who granted leave applied his mind to the matter and satisfied himself that the compromise was for the minor’s benefit. It was observed-
“There is no set form in which the certificate which the Court is required to record need be made. It is evident that the Judge had the provisions of Order 32, Rule 7 in view. He adjourned the case on 17-11-1924. He realised that he had to give permission and he realised that the compromise had to be for the benefit of the minors.”
Referring to the decision of our High Court in Awadhesh Prasad Missir’s case, AIR 1940 Pat 663, their Lordships said that if the Patna decision was made to convey that before the guardian even begins negotiation for compromise with the other side, he must obtain sanction of the Court, they were unable to agree with that view.
9. Another case on which learned Counsel for the Respondent placed reliance is a decision of this Court in Ishan Chandra Kundu v. Nilratan Adhikari, AIR 1923 Pat 375. As it appears from the facts, as stated in the judgment, there was no permission expressly granted by the Court to the guardian-ad-litem of the minor to enter into compromise. The guardian-ad-litem had filed a petition for leave to enter into compromise and compromise was recorded. After the attention of the court was drawn to that petition, overruling the contention that the compromise was not binding on the minor, Kulwant Sahay, J., who delivered the leading judgment in that case, relying on the judgment of the Judicial Committee in Manohar Lal v. Jadunath Singh, (1906) 33 Ind App 128 (PC), observed:
“In the present case before us, it is clear from the order sheet that the attention of the Court was expressly drawn to the fact that the compromise was being effected on behalf of the minors inasmuch as a petition for leave to enter into the
compromise was filed by the guardian and noted by the Judge. In order to attract the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure, it is enough to show that the attention of the Court was directly called to the fact that a minor was a party to the compromise and that the leave of the Court was obtained on petition or in some way not open to doubt. No particular formula is necessary to be used by the Court in order to grant the leave and when it is shown that an application was made by the guardian to the Court asking for leave to enter into the compromise and the Court makes a note of that application and passes a decree in terms of the compromise, it must be held that the leave of the Court was expressly recorded within the meaning of Order XXXII, Rule 7 of the Code”.
10. From the decisions of the Supreme Court and this Court, referred to above, it is clear that there is no set form in which the Court has to record its order while granting permission to the guardian of the minor to enter into compromise or for referring the dispute to arbitration. When an application is made on behalf of a minor by his guardian for permission to refer the dispute to arbitration, the Court is not in a position to know whether the actual award will be for minor’s benefit or not. In the case of a compromise, the Court is in a position to form an opinion on the question of minor’s benefit, before according permission to the guardian for entering into it because the terms of the compromise are made known to it. Therefore, for referring the dispute to arbitration, the Court, unless the case is such that on the pleadings themselves and on the evidence already placed before the Court, the minor is bound to succeed in full, has to proceed on the assumption that the reference is for the benefit of the minor for references to arbitration bring amicable settlement of the dispute. Thus where an application is made by the guardian-ad-Iitem of the minor for permission of the Court to refer the dispute to arbitration and the Court refers the dispute to arbitration, it can safely be held that the Court has applied itself to the question whether the reference is for the benefit of the minor or not and whether leave should be granted to the guardian for it or not. In my opinion, therefore, the Court while referring the dispute to arbitration in T. S. 36 of 1947 did comply with the requirements of Order 32, Rule 7 of the Code and there is no substance in the contention of learned Counsel for the appellant that the award decree is not binding upon him inasmuch as the requirements of Order 32, Rule 7 of the Code were not complied with by the Court at the time of reference of the dispute to arbitration. It is remarkable that in the written statement the appellant challenged
the reference only on the ground that it was obtained by practising fraud upon his guardian and that his father being addicted to Ganja and Bhang was not fit to be his guardian; it was not pleaded that the award decree was not binding upon him as the Court making the reference did not comply with the requirements of Order 32, Rule 7 of the Code.
11. Mr. Brahmdeo Narain, appearing on behalf of the plaintiff-Respondent, contended that as the appellant did not avoid the award decree by instituting a suit within three years of his attaining majority, it was no longer open to him to challenge the award decree on the ground that it was not binding upon him. On the other hand, Mr. Lal Narayan Sinha for the appellant, contended that the appellant being a defendant in possession of the property in this suit could challenge the validity of the award decree, even though he did not institute a suit for avoiding it within the period of limitation. As I have held that the Court making reference to arbitration did comply with the requirements of Order 32, Rule 7 of the Code and the award decree is binding on the appellant, it is not necessary to record any finding on the aforesaid contentions of learned Counsel for the parties.
12. I would now take up for consideration the question whether the present suit is time-barred. The trial Court held that the plaintiff never got khas possession after the decree in T. S. 36 of 1947 but he got symbolical possession and in absence of any reliable evidence of assertion of hostile title by the appellant the suit was not time-barred. The lower appellate court has differed from the trial Court on that question and held that the plaintiff did come in possession of the suit lauds after the decree in the aforesaid suit and was subsequently dispossessed as alleged by him. Therefore, in its opinion too, the suit was within time and not barred by limitation. Arguments were advanced before me on the question whether the suit was governed by Article 142 or 144 of the first Schedule to the Indian Limitation Act of 1908. It is not in dispute that if the finding recorded by the lower appellate court on the question of possession and dispossession is in accordance with law, the suit was not time-barred, even if it was governed by Article 142 of the first Schedule to the said Act. If that finding is held to be not vitiated by any error of law, the question whether the present suit is governed by which of the two Articles mentioned above, will be of academic interest only and need not be discussed.
13. It is well settled that a finding of fact recorded by the final court of fact cannot be set aside in a second appeal howsoever erroneous the reasonings of that Court in support of the finding may be
Learned counsel for the appellant, therefore, could not and did not go into the question whether the reasonings of the lower appellate Court on the question of possession were good or bad. It was also not contended before me that there was no evidence on the record in support of the finding. The contention of learned Counsel for the appellant was that as the lower appellate Court took a different view from that of the trial Court on the question of possession, it ought to have discussed the reasonings of the trial Court and met them before recording a finding of its own different from that recorded by the trial Court. Merely because the lower appellate Court omits to discuss some of the reasonings of the trial Court, its finding cannot be set aside in a second appeal, it has discussed the main reasonings of the trial Court. It is not necessary for the lower appellate Court to write, even it is of reversal, a judgment as detailed as written by the trial Court. If this Court is satisfied that the lower appellate Court has applied itself to the evidence on the record, was aware of the reasonings given by the trial Court and discussed the main reasonings of that Court in support of the finding recorded by it (trial Court), this Court would not be justified in interfering with the judgment of the lower appellate Court in a second appeal. In my opinion, in the instant case, the judgment of the lower appellate Court satisfies the aforesaid tests and cannot be set aside because of the second and third contentions of learned Counsel for the appellant.
14. In the result, I find no merit in the appeal and it is, accordingly, dismissed with costs.