In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.3465 of 2006 ..... Date of decision:21.5.2008 Ram Diya .....Appellant v. Sheesh Pal and others .....Respondents .... Present: Mr. Robin Dutt, Advocate for the appellant. Mr. S.S. Dinarpur, Advocate for the respondents. ..... S.S. Saron, J. (Oral): This appeal has been filed by the defendant-appellant against the judgment and decree dated 5.6.2006 passed by the learned District Judge, Yamuna Nagar at Jagadhri whereby the appeal filed by the plaintiffs before the learned District Judge against the judgment and decree dated 16.3.2004 passed by the learned trial Court has been accepted and the judgment and decree of the trial Court has been set aside. The dispute relates to the one half share of land measuring 60 Kanals 1 Marla at Village Kayampura of Hari Singh. The plaintiffs No.1 to 3 are sons of Hari Singh and plaintiffs No.4 and 5 are the daughters of Hari Singh. The defendant-appellant is the fourth son of Hari Singh. The plaintiffs had filed a suit seeking setting aside the judgment and decree dated 16.10.1999 passed by the Civil Judge (Junior Division), Jagadhri in R.S.A. No.3465 of 2006 [2] case titled Ram Diya (now defendant-appellant) v. Hari Singh. In terms of the said decree Hari Singh, the father of the plaintiffs and the defendant had suffered a decree relating to half share of his land measuring 60 Kanals 1 Marla situated at Village Kayampura, Tehsil Jagadhri in favour of Ram Diya (defendant-appellant). Mutation No.217 was sanctioned on 5.5.2000 on the basis of decree dated 16.10.1999. During the pendency of the suit before the learned trial Court the parties entered into a compromise dated 29.5.2003 (Ex.CX). It may also be noticed that Hari Singh had during his life time executed a Will dated 5.9.2001 in favour of the defendant- appellant. Hari Singh had died thereafter. In terms of the compromise, it was agreed that both the parties i.e. plaintiffs and defendant respectively would withdraw the cases that they had filed against each other. Besides, the specific Khasra numbers of which the parties would be in possession and also the share in the tube-well was determined. The learned trial Court dismissed the suit of the plaintiffs-respondents by holding that the decree dated 16.10.1999 can only be set aside on the ground of fraud which is challenged by the person who had suffered the decree. Besides, it was observed that the parties had submitted that the Will dated 5.9.2001 may be amended as per their convenience and that this was against the norms. The learned District Judge, Yamuna Nagar at Jagadhri, however, held that the matter has been compromised before the learned trial Court as per compromise deed (Ex.CX). The statements of the parties were also recorded in that regard. In terms of the compromise all the sons of late Shri Hari Singh were held to be owners in equal share. The parties had agreed to set aside the decree i.e. the decree dated 16.10.1999 and this primarily meant that the defendant-appellant had admitted that the consent R.S.A. No.3465 of 2006 [3] decree was based upon misrepresentation of facts and that a fraud had indeed been played on the other sons. Accordingly, in view of the compromise (Ex.CX) the suit of the plaintiffs-appellants was decreed and the compromise, it was ordered, shall form part of the decree. Learned counsel appearing for the defendant-appellant has contended that in terms of the compromise, the Will dated 5.9.2001 executed by late Shri Hari Singh is sought to be amended and this is impermissible in law. It is also contended that in fact for the purpose of releasing the property which the defendant-appellant had got, the plaintiffs had agreed to pay him Rs.1 Lac orally. In response, learned counsel for the plaintiffs-respondents had contended that the matter having been compromised in terms of the compromise (Ex.CX), the learned lower appellate Court has rightly decreed the suit in terms of the said compromise. Besides, it is submitted that it is admitted by the appellant that the land is ancestral property of all the sons of Hari Singh. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and also perused the record. The admitted position is that defendant-appellant is the son of Hari Singh. The plaintiffs-respondents are the successors-in-interest of Hari Singh. Hari Singh had suffered a decree dated 16.10.1999 in favour of the defendant- appellant. Besides, during his life time he executed a Will dated 5.9.2001. In any case, the dispute that was pending was settled by both the parties by entering into a compromise (Ex.CX). In terms of the said compromise specific portion and Khasra numbers of the land which fell to each of the parties has been recorded. There is nothing in the said compromise that the R.S.A. No.3465 of 2006 [4] terms of the Will are being amended. In fact both the parties agreed to be equal owners to the extent of their rights in the estate of Hari Singh (deceased). Therefore, the contention of the learned counsel for the defendant-appellant that the Will dated 5.9.2001 executed by Hari Singh is being amended is not borne out from the compromise. Therefore, the said contention is misconceived. In fact, it may be noticed that at the time of issuance of notice of motion by this Court vide order dated 26.10.2006 it was submitted by the learned counsel for the defendant-appellant that the respondents were not complying with the terms of the compromise and on the strength of the said contention notice of motion was issued. However, now a completely different stance is being taken that in terms of the compromise the Will dated 5.9.2001 of Hari Singh is being amended. In fact, as already noticed, there is no amendment of the Will and it is settled that both the parties have agreed to share the estate of Hari Singh according to their respective rights. It is not in dispute between the parties that the suit property is ancestral property. Therefore, there is no infirmity in the judgment and decree dated 5.6.2006 passed by the learned District judge, Yamuna Nagar. The other contention of the learned counsel for the appellant that the respondents had agreed to pay the appellant a sum of Rs.1 Lac for the compromise is not borne out from the record. There is nothing on record that such plea was taken before the Courts below or even in the grounds of appeal before this Court. Even otherwise, it may be noticed that the parties having settled their claim on the basis of the compromise and the learned lower appellate Court having held the compromise to be valid would evidently show that no R.S.A. No.3465 of 2006 [5] question of law is involved in this appeal. Consequently, the appeal is dismissed. May 21, 2008. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No