R. S. A. No. 1487 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1487 of 2010 Date of Decision : May 11, 2010 Bikkar Singh .... Appellant Vs. Chanan Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. B. S. Bhalla, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Bikkar Singh, who has been unsuccessful in both the courts below, has approached this Court by way of instant second appeal. The plaintiff sought declaration that he is owner in possession of the land mentioned in the plaint and that judgment and decree dated 30.07.1994 passed by learned Sub Judge IInd Class, Moga in Civil Suit No. 152 of 02.04.1994 in favour of present defendants no.1 to 3 against present defendants no.4 are illegal, null and void etc. and not binding on the plaintiff. Plaintiff also claimed permanent injunction restraining the defendants from alienating the suit property and from interfering in R. S. A. No. 1487 of 2010 2 possession thereof, except in due course of law. Injunction restraining the defendants from alienating the suit land was also claimed. In the alternative, relief of possession of suit land as owner was also sought. Plaintiff and defendants no.1 to 3 are brothers being sons of defendant no.4 Bhan Singh. The plaintiff's case is that the suit land was ancestral and joint Hindu family coparcenary property and in family settlement, suit land was given to the plaintiff, who is owner in possession thereof since then. Defendant no.4 sold some land and gave the sale proceeds to defendants no.1 to 3. Defendants no.1 to 3 also filed previous suit bearing No.152 of 02.04.1994 against defendant no.4 regarding the suit land and the said suit was got decreed by consent of defendant no.4 declaring defendants no.1 to 3 to be owners in possession of the suit land. However, defendant no.4 was not competent to make any such statement and the decree dated 30.07.1994 passed in the said suit is collusive. Defendants no.1 to 3, in their written statement, controverted the allegations of the plaintiff and raised various pleas. It was also pleaded that the plaintiff had earlier also filed suit bearing No.494 of 11.09.1995, which was dismissed as withdrawn on 17.03.1997 and therefore, the present suit regarding the same relief is not maintainable. Defendant no.4 died during the pendency of the suit and his daughter Tej Kaur was impleaded as his legal representative. However, Gejo – another daughter of defendant no.4 was not pleaded. Plaintiff was R. S. A. No. 1487 of 2010 3 not obedient son of defendant no.4. Accordingly, defendant no.4 gave advertisement in newspaper dated 01.06.1996 disinheriting the plaintiff. Defendant no.4 also executed registered Will dated 24.07.1991 in favour of defendant no.1. It was alleged that defendants no.1 to 3 are owners in possession of the suit land. Legal heir of defendant no.4 also filed similar written statement as that of defendants no.1 to 3. Learned Civil Judge (Senior Division), Moga, vide judgment and decree dated 20.08.2007, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Moga, vide judgment and decree dated 17.02.2010. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Both the courts below, on proper appreciation of evidence, have arrived at concurrent finding against the plaintiff. The said finding is not shown to be illegal or perverse in any manner so as to call for interference in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Learned counsel for the appellant contended that there was compromise between the parties, according to which, plaintiff was to R. S. A. No. 1487 of 2010 4 withdraw first appeal from the court of learned Additional District Judge, Moga and thereupon, possession of the suit land was to be delivered to the plaintiff and since the parties did not have faith and trust in each other, plaintiff moved application Annexure A-1 in the lower appellate court for permission to withdraw the suit, with liberty to file fresh suit on the same cause of action, but the said application was dismissed by the lower appellate court vide order dated 05.02.2010 Annexure A-2 and thereafter, the first appeal was dismissed vide judgment and decree dated 17.02.2010 and for this reason, compromise between the parties has fallen through. The contention cannot be accepted because there is no material on record to substantiate the same. On the other hand, application Annexure A-1 moved by the plaintiff-appellant in the lower appellate court negatives the aforesaid contention because the said application was not moved for withdrawing the first appeal as per terms and conditions of the alleged compromise. On the other hand, the said application was moved for withdrawing the suit and that too, with liberty to file a fresh suit on the same cause of action. Thus, the plaintiff-appellant himself violated the terms and conditions of alleged compromise. Be that as it may, there is no material on record to depict that there was any such compromise between the parties. On the other hand, in view of mandatory provision of Order 23 Rule 3 of the Code of Civil Procedure, such a compromise, in order to be legal and valid compromise, had to be in writing and signed by the parties. Admittedly, there is no such R. S. A. No. 1487 of 2010 5 written compromise signed by the parties. For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine. May 11, 2010 ( L. N. MITTAL ) monika JUDGE