IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1107 of 2007 1. RAY AJAY SHANKER PRASAD, SON OF LATE RAY RAJESHWAR PRASAD, RESIDENT OF HOUSE NO.9, FORT AREA, POLICE STATION-KOTWALI, P.O. TOWN AND DISTRICT-MUNGER. ………………………………………………PLAINTIFF-PETITIONER. 2. RAY PREM SHANKAR PRASAD, SON OF LATE RAY RAJESHWAR PRASAD, RESIDENT OF HOUSE NO.9, FORT AREA, POLICE STATION-KOTWALI, P.O. TOWN AND DISTRICT-MUNGER. AT PRESENT RESIDENT OF JAGDISHPURI, MITHANPURA, P.O. RAMNA, TOWN, P.S. AND DISTRICT-MUZAFFARPUR. ……………………………..DEFENDANT IST PARTY-PETITIONER. 3. RAY RAVI SHANKER PRASAD, SON OF LATE RAY RAJESHWAR PRASAD, RESIDENT OF HOUSE NO.9, FORT AREA, POLICE STATION-KOTWALI, P.O., TOWN AND DISTRICT-MUNGER. AT PRESENT RESIDENT OF 201, R.K. APARTMENTS, NAGESHWAR COLONY, BORING ROAD, P.O. G.P.O., P.S. KOTWALI, TOWN AND DISTRICT-PATNA. ……………………………..DEFENDANT 2ND PARTY-PETITIONER. 4. RAY UDAY SHANKER PRASAD, SON OF LATE RAY RAJESHWAR PRASAD, RESIDENT OF HOUSE NO.9, FORT AREA, P.S. KOTWALI, P.O. TOWN AND DISTRICT-MUNGER. AT PRESENT RESIDENT OF E-7, GROUND FLOOR, ANAND NIKETAN, NEW DELHI-110021. ……………………………...DEFENDANT 3RD PARTY-PETITIONER. 5. RAY VIJAY SHANKER PRASAD, SON OF LATE RAY RAJESHWAR PRASAD, RESIDENT OF HOUSE NO.9, FORT AREA, P.S. KOTWALI, P.O. TOWN AND DISTRICT-MUNGER. ……………………………..DEFENDANT 4TH PARTY-PETITIONER. 6. RAY GYAN SHANKER PRASAD, SON OF LATE RAY RAJESHWAR PRASAD, RESIDENT OF HOUSE NO.9, FORT AREA, P.S. KOTWALI, P.O. TOWN AND DISTRICT-MUNGER. ……………………………..DEFENDANT 5TH PARTY-PETITIONER. ……………………………………………………………PETITIONERS. Versus SRI BHUPENDRA KAPRI, SON OF HARI MOHAN KAPRI, RESIDENT OF RAMEDABAD, P.O.-POLICE STATION- KHARAGPUR, DISTRICT-MUNGER. ………………………………………………DEFENDANT 6TH PARTY. ………………………………………………………OPPOSITE PARTY. ----------- - 2 - For the Petitioners : M/s. Prashant vedasen and Subhash Chandra Bose, Advocates. For O.P. : Mr. Ashwani Kumar Sinha, Advocate. ------------ O R D E R This application under Section 115 of the Code of Civil Procedure has been filed jointly by the plaintiff and defendant nos.1 to 5 of Title Suit No.84 of 1997 questioning the legality and bonafide of the order dated 12.4.2007 passed in the said suit by Sri A.K. Verma, Subordinate Judge-II, Munger, whereby he has refused to accept the joint compromise petition filed by the plaintiff and defendant nos.1 to 5 of the suit and dispose of the same in terms of the compromise. It appears that the plaintiff filed the aforesaid suit for partition of the joint family properties against his five brothers who were defendant nos.1 to 5 in the suit and are petitioner nos.2 to 6 herein. As per the case of the plaintiff-petitioner no.1, their father Late Ray Rajeshwar Prasad had acquired from his personal funds an area of 3 bighas and 15 kathas of homestead lease hold Khas Mahal land appertaining to khata no.36, plot nos.148 and 149 with a pucca house situated thereupon through a registered sale deed dated 4.10.1950 executed by the vendor. The said Ray Rajeshwar Prasad died on 25.1.1983 and his wife expired on 4.3.1989 and following their deaths the plaintiff and defendant nos.1 to 5 came in joint possession of the lands detailed in Scheduled-II of the plaint meaning thereby 3 bighas and 15 kathas of lands. It is the further case of the plaintiff that defendant no.1, the petitioner no.2 herein, had transferred an - 3 - area of 10 kathas of land including the house standing thereupon out of his share in the said area of 3 bighas and 15 kathas of land to one Bhupendra Prasad Kapri, the sole opposite party herein, and as such an area of 10 kathas land may be allotted to the share of defendant no.1-petitioner no.2 herein, in the final decree that may be passed. It is said that in view of the difficulties faced by the brothers due to the increase in the family membership of the parties and because of other reasons, plaintiff- petitioner no.1 had made a request to his brothers to partition the joint suit property but they were adjourning the matter. It appears that during the pendency of the suit defendant nos.4 and 5 who are petitioner nos.5 and 6 herein, filed a petition before the court for adding Bhupendra Prasad Kapri as Defendant no.6 to the suit in view of the fact that he had purchased lands from defendant no.1 (petitioner no.2 herein). It appears that defendant no.1 –petitioner no.2 herein, filed a written statement admitting the fact that he had sold 10 kathas of land with house standing thereupon out of his share of joint family property to Bhupendra Prasad Kapri who is defendant no.6-O.P. herein and that he had also negotiated with him to sell two more kathas of land from his share out of the suit property. It appears that Bhupendra Prasad Kapri, who had been impleaded as defendant no.6 in the suit, also filed his written statement stating inter alia that he had purchased 10 kathas of land from defendant no.1 and that he has also negotiated to purchase 2 more kathas of land from him and in pursuance thereof a sum of Rs.1000/- had been paid by - 4 - him to defendant no.1. It appears that an objection was raised by the registry of the court to the effect that it was not possible for the court to partition the suit properties with taking into consideration the sale deed executed by defendant no.1 in favour of defendant no.6 who is a stranger to the family and hence the suit be treated as declaration of title and in that view of the matter ad valorem court fee be paid and on the directions of the District Judge, the Subordinate Judge directed the plaintiff-petitioner no.1 to pay the ad valorem court fee. The brothers held a conclave amongst themselves for arriving at an amicable settlement and as a result thereof a compromise was arrived at between the plaintiff –petitioner no.1 and defendant nos. 2 to 5 (petitioner nos.3 to 6 herein) and a duly prepared compromise petition signed by all the brothers except defendant no.1, who at the relevant time was out of town, was filed in court. Subsequently, defendant no.1 on returning back filed a separate petition on affidavit on 9.11.2006 stating therein that he was left with no share in the remaining joint family property after he had sold his share of land to defendant no.1 and that he was in full agreement with the amicable settlement arrived at amongst the brothers and later on, on the directions of the court he put his signature on the compromise petition on 16.3.2007 in presence of the court. However, defendant no.6 raised objections to the compromise petition being accepted on the ground that since he had become entitled for two kathas of land on the basis of the agreement of sale with defendant no.1, no order can be passed on such compromise petition without deciding his claim. In view of the objections - 5 - raised by the defendant no.6, the learned Subordinate Judge refused to accept the prayer of the petitioners for accepting the compromise petition and dispose of the suit in terms of the compromise petition after holding that the claim of defendant no.6 requires consideration first. Assailing the impugned order, the petitioners have submitted that the learned court below had erred in passing the impugned order inasmuch as the suit being a partition suit wherein the plaintiff sought 1/6th share in the joint property had illegally exercised his jurisdiction in not accepting the compromise arrived at amongst all the brothers and also in not disposing of the suit in terms of the compromise. Grievance was also raised against the court having accepted the objections raised by the defendant no.6 who was stranger to the family. Section 115 of the Code of Civil Procedure read as follows: [(1)]. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested , or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: [Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of - 6 - the suit or other proceedings] [(2). The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.]……………………………….. ……………………………………………………………………………… [Explanation:- In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.] Unfortunately, the impugned order does not amount “to a case decided” nor is there any allegation of any jurisdictional error. The issues sought to be raised by the learned counsel for the petitioner is now no more res integra in view of the decision of a Division Bench of this Court in the case of Lagandeo Singh Vs. Satyadeo(AIR 1992 Patna 153) wherein their Lordships held as follows: “There may be two types of orders in this regard, one may be allowing the objections to the recording of compromise and refusing to record compromise. The other may be rejecting the objections to the recording of compromise and recording a compromise. If in passing the aforesaid two types of orders, a Court commits any error of jurisdiction within the meaning of any of the three clauses of first part of sub-section (1) of S. 115, the revisional court shall not interfere with the order impugned unless the case is covered by any of the two clauses of the proviso. The language of first part of sub-section (1) of S.115 of the Code is different than the language of the proviso and sub-section (2) of S.115 of the Code. According to first part of sub-section (1), if the impugned - 7 - order comes within any of the three clauses, enumerated therein, the High Court may interfere with the impugned order, but according to proviso to sub-section (1) or the provisions of sub-section (2), revision will not be maintainable because there is legislative command to the High Court not to interfere with the impugned order in exercise of the revisional jurisdiction unless the case comes within the purview of any of the aforesaid provisions.” A similar view has been expressed by the Hon’ble Apex Court in the case of Banwari Lal Vs. Chando Devi (AIR 1993 SC 1139). In the instant case an objection has been raised by defendant no.6 to the acceptance of the compromise and decreeing the suit on the basis thereof. A revision is maintainable against an order refusing to record a compromise only if the revisional court comes to the conclusion that the case comes under any of the three clauses in first part of sub section (1) of Section 115 C.P.C.. The instant case not falling within the ambit of any of the three clauses of first part of sub-section (1) of Section 115 C.P.C. or the proviso thereto, the revisional court will not interfere. In view of the discussions made above, I find no merit in this application which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 7th of August, 2009. Pradeep Srivastava/A.F.R.