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CASE NO.: Appeal (civil)  1211 of 2005

PETITIONER: Ajad Singh @ Ajad                                                

RESPONDENT: Chatra and Others        

DATE OF JUDGMENT: 14/02/2005

BENCH: CJI,G.P. Mathur & P.P. Naolekar

JUDGMENT: J U D G M E N T (arising out of SLP (C) No. 3884 of 2002)

P.P. Naolekar, J

       Leave granted.         The appellant Ajad Singh has filed a suit for declaration  and possession of his right, title and interest over the suit  property along with Dilawar Singh @ Dilbag Singh and Silak Ram  \026 proforma respondents Nos. 4 and 5 and for mandatory  injunction against respondent Nos. 1, 2 and 3 for removal of  superstructures raised by them over the suit lands and for  restraining them from interfering with the possession of the  appellant.  The case of the plaintiff/appellant is that he and  respondent Nos. 4 and 5 are real brothers and the property in  suit came to them in partition effected between them and their  uncle Puran.  The respondent Nos. 1, 2 and 3 have encroached  upon the suit lands on 2.1.85 by storing some pucca bricks on  the suit land and thereafter have raised some construction over  it.  The defendant-respondents have not vacated the land in  spite of demand by the plaintiff-appellant.  The  defendants/respondents Nos. 1, 2 and 3, filed their written  statements denying the right, title and interest of the appellant  over the suit land and claimed that they were in possession of  the suit land for the last 60 years which had ripened into  ownership by way of adverse possession and the construction  made over the land was in exercise of that right.  It was further  alleged that appellants as well as respondent Nos. 4 and 5 had  admitted the possession of respondent Nos. 1, 2 and 3 of the  suit property vide compromise dated 14.10.1985 and thus  appellant was prevented by his acts and conduct to pursue the  present suit.

       The trial court appointed a Commissioner for inspection of  the suit site and record the evidence of the parties.  On the  appreciation of the evidence led by the parties and the report of  the Commissioner, the trial court decreed the suit filed by the  appellant.  Aggrieved by the said decree, respondent Nos. 1, 2  and 3 filed an appeal which was heard by the Additional District  Judge, Panipat.  The First Appellate Court reversed the decree by  placing reliance on the compromise (Exhibit \026 D1) dated  14.10.1985 which was said to have been effected between the  parties in the police station.  In paragraph 9 of the Judgment,  the Court has held that the compromise (Exhibit \026 D1) dated  14.10.1985 is a very relevant piece of evidence which admittedly  has been signed by Ajad Singh but about which no such plea has  been raised by the appellant either in the amended plaint or in

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the replication filed by him on 4.6.1987 as would enable him to  avoid the compromise.  There is also no pleading from the  plaintiff-appellant’s side that the said compromise (Exhibit \026 D1)  was obtained by the police forcibly.  He has not stated anything  about the compromise in his examination-in-chief and only in the  cross-examination he has stated that the compromise was  effected by use of force in the police station.  On perusal of the  compromise, the Court has further held that both the sides have  resolved the dispute and respondent No. 1 could remain in  possession of suit property, as, according to the compromise,  the appellant has already relinquished the right over the site in  dispute on 14.10.1985 (Exhibit \026 D1) itself.  Thus, it is made out  that the trial court has wrongly rejected the said compromise  (Exhibit-D1) by observing that no such permission was obtained  to effect the compromise in the police station.  The Court further  summarized the effect of compromise that the appellant has  relinquished his right in the suit land in view of the settlement  (Exhibit \026 D1) dated 14.10.1985 itself and about which he  remained mum and knowingly concealed this fact in the  pleadings.  Thus, after the examination of the said compromise  (Exhibit \026 D1), it is made out that the plaintiff-appellant agreed  to withdraw the suit and conceded that Chatra, the defendant  No. 1 shall continue to remain in possession of the suit property.   On these findings the judgment and decree of the trial court was  set aside and the so-called compromise (Exhibit \026 D1) was held  to be binding on the parties.   

The appellant preferred a second appeal before the High  Court which was dismissed in limine.  The High Court has  reproduced paragraphs 8 and 9 of the judgment of the lower  appellate court and concurred therewith dismissing expressing  an opinion that the reason given by the first appellate court for  dismissing the suit are much weighty, as compared to the  reasons given by the trial court which committed patent illegality  in decreeing the suit.

       In this petition seeking leave to appeal preferred by the  appellant before this Court, a notice, limited to the question as  to why the matter be not remanded back to the first appellate  court for decision afresh, was issued.   

       We have heard the learned counsel for the parties and we  are satisfied that the case deserves to be remanded to the first  appellate court for the reasons stated hereinafter.  The High  Court as well as the first appellate court have not adverted to  the various relevant and important aspects of the case while  deciding the matter.  And, this we say for the several reasons  which follow.  First, the provision contained in Order 23 Rule 3 of  the CPC has been completely overlooked.  The date on which the  compromise (Exhibit \026 D1) is alleged in the written statement to  have been entered into between the parties, the suit relating to  the property forming the subject matter of the compromise was  pending in the Court.  The suit could not have been disposed of  except by recording the compromise and that too by following  the procedure, and recording the satisfaction, contemplated by  Rule 3 of Order 23 of the CPC.  Secondly, the first appellate  court was not justified in observing that the plaintiff had not  raised necessary pleadings either in the plaint or in the  replication disputing the factum and legality of the compromise.   From a perusal of the written statement, we find that necessary  pleadings satisfying the requirement of Order 23 Rule 3 of the  CPC have not been raised in the written statement.  The written  statement makes only a bald reference to the said compromise  dated 14.10.1985.  The plaintiff can be safely assumed to have  denied all the averments made in the written statement.  Also,

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we find from the judgment dated 5.10.1985 of the trial court  that no specific issue was framed on the pleading raised by the  defendant regarding the said compromise dated 14.10.1985.   The appellate court ought to have taken note of the fact that the  said compromise was recorded in the police station and during  the pendency of the suit.  Thirdly, the first appellate court ought  to have been conscious of the fact that the said compromise is  on a plain piece of paper, and so, whether such document was  required to be stamped or registered or not?  Be that as it may,  in our opinion, the very fact that the courts below have  overlooked the provisions of Order 23 Rule 3 of the CPC is  sufficient to vitiate the judgment and the matter needs to be  remanded for consideration afresh.

       The appeal is allowed.  The order dated 26.9.2001 of the  High Court dismissing the second appeal in limine as well as the  judgment and decree passed by the first appellate court are set  aside.  The first appeal being Civil Appeal No. 376 of 1999 shall  stand restored and is remitted to District Judge, Panipat for re- hearing and deciding it afresh either by himself  or assigning it to  a Court competent to hear it.

       No order as to the costs.