IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2431 of 2008 (O&M) Date of Decision: 16.3.2010 Sultan Singh ....... Appellant through Shri R.S.Chahar, Advocate. Versus Smt.Channo (since deceased) through L.Rs. and others. ....... Respondent nos. 2 to 5 through Shri Manoj Chahal, Advocate. Respondent nos. 8 & 9 through Shri S.N.Pillania, Advocate. None for other respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The plaintiff is in second appeal. He had filed a suit for declaration with the following prayers:- “1. That he is owner in possession of land measuring 127 kanals 3 marlas comprised in khasra No.s 64/16 (2-0), 17 (5- 16), 18 (7-11), 23 (8-0), 24 (8-0), 25 (8-0), 69//3/1 (3-8), 3/2 (4-12), 4 (8-0), 5 (8-0), 6 (8-0), 7 (8-0), 8 (8-0), 13 (8-0), 14 (8- 0), 15 (8-0), 16/2 (4-4), 17(8-0), 18/1 (3-12), to the extent of ½ R.S.A.No.2431 of 2008 (O&M) -2- .... share, situated in village Sisar; (2) that judgment and decree dated 12.10.1994 passed in Civil Appeal No.132 of 1992/120 of 1994 and mutation no.1950 dated 25.10.94 and also judgment and decree dated 1.2.1995 passed in Civil Suit No.745 of 1994 titled Wazir Singh Vs. Smt.Shanti etc. as well as mutation no.1956 dated 20.3.95 and judgment & decree dated 1.5.95 titled Wazir Singh Versus Ram Niwas etc. passed in Civil Suit No.367 of 1995 and mutation no.1961 dated 5.5.95 were against law and facts, based on fraud and misrepresentation and not liable on the rights of the plaintiff. (3) That sale deed No.425 registered on 26.5.1995 executed by Wazir Singh in favour of defendant nos. 8 & 9, mutation no.1991 dated 26.8.96 are against law and facts and not liable on the rights of the plaintiffs. (4) That as a consequential relief, a decree of possession of suit land to the extent ½ share may be passed.” It was pleaded by the plaintiff that one Kharag Singh, resident of village Sisar, was owner in possession of the suit land; that he had no male issue; and that defendant nos. 1 & 2 were his daughters, whereas his wife-Smt.Booler had since expired. It was further pleaded that the plaintiff was the real nephew of Kharag Singh; that he was serving Kharag Singh and was also taking care of the suit land; that defendant nos. 1 & 2 were got married and were living in their matrimonial homes; that Kharag Singh gave R.S.A.No.2431 of 2008 (O&M) -3- .... half share of the suit land to the plaintiff through Civil Suit No.329 of 1981; that Kharag Singh died on 3.12.1984; that after his death, defendant nos. 1 & 2 along with their mother filed Civil Suit No.349 of 1985 challenging the validity of judgment & decree passed in Civil Suit No.329 of 1981; that the said Civil Suit was dismissed on 20.8.1992; that the appeal was filed by defendant nos. 1 & 2; that the plaintiff was president of Sangarsh Samiti and used to initiated various proceedings against the then M.L.A.-Shri P.K.Chaudhary and Ex-M.L.A.- Shri Amir Chand Makkar; that on that account, they started having a grudge against the plaintiff; that in the year 1991, Shri Amir Chand Makkar was again elected to the Legislative Assembly and at that time, one Usha daughter of Wazir Singh was murdered; that on account of enmity, Shri Amir Chand Makkar got implicated the plaintiff in that case; that he was, however, acquitted in the year 1996; that during this time, when he was lodged in jail from 29.4.1994 to 23.5.1996, his family was threatened and he was made to suffer a compromise on 3.10.1994 by which he was forced to agree to alienation of the suit property in order to secure his acquittal by getting the witnesses to turn hostile; and that the said compromise was got effected in civil appeal no.132 of 1992/120 of 1994 which was preferred against the judgment & decree rendered in Civil Suit No. 349 of 1985. The plaintiff had alleged that the said compromise was not signed by him and was under threat and coercion and, therefore, the decree passed on that basis was not binding on him. In their joint written statement, the persons, who were arrayed R.S.A.No.2431 of 2008 (O&M) -4- .... as defendant nos. 1 to 7, contested the suit and denied the averments made in the plaint. They also defended the judgment passed on the basis of the compromise. It was pleaded that the plaintiff, by virtue of the compromise, had admitted that the decree dated 1.4.1981 passed in civil suit no.329 of 1981 was the result of fraud and on this account, they had changed their statements in the murder case because they were satisfied with the return of the land. Defendant nos. 8 & 9 had also filed their written statement claiming that they were the bona fide purchasers of the land in question and prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of ½ share of land measuring 127 kanals 2 marlas detailed in the head note of the plaint?OPP 2. Whether the judgment and decree in civil appeal no.132 of 1992/ 120 of 1994 decided on 12.10.94 and mutation no. 119 of 1950 (sic. mutation no.1950 dated 25.10.94) sanctioned on the basis of above said judgment and decree are against law and facts and not binding on the rights of the plaintiff on the ground mentioned in the plaint?OPP 3. Whether the judgment and decree passed in civil suit no.745 decided on 1.2.95 and mutation no.1956 are wrong, against law and facts and are not binding on the rights of R.S.A.No.2431 of 2008 (O&M) -5- .... plaintiff?OPP 4. Whether the judgment and decree passed in civil suit no.367 decided on 1.5.95 and mutation No.1961 decided on 5.5.95 are wrong, against facts, null and void and not liable to be set aside?OPP 5. Whether the sale deed No.425 of 26.5.95 and mutation no. 1491 of 25.8.96 are wrong, against law and facts and not binding on the rights of plaintiff on the grounds mentioned in the plaint?OPP 6. Whether the decree and order in civil suit no.329 of 81 dated 1.4.81 and the subsequent mutation is wrong, illegal, ultra vires based on fraud and misrepresentation?OPP 7. Whether the suit is not maintainable?OPD 8. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD 9. Whether the suit is time barred?OPD 10. Whether the civil court has no jurisdiction to try and entertain the present suit?OPD 11. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 12. Whether the suit is barred by principle of res judicata?OPD 13. Whether Rajesh, Krishan, Naresh and Anil, residents of Kumba are necessary and essential parties in the present suit as they have purchased land measuring 79 kanals 7 marlas R.S.A.No.2431 of 2008 (O&M) -6- .... vide sale deed dated 10.7.95 from Wazir Singh?OPD 14. Whether the plaint is not properly verified?OPD 15. Whether the defendants no. 8 and 9 are bona fide purchasers of the property in dispute without notice?OPD 16. Relief. Both the Courts below dismissed the suit as well as the appeal of the plaintiff, resulting in the filing of the instant appeal. Learned counsel for the plaintiff has contended that the compromise, which was arrived at in civil appeal no. 132 of 1992/120 of 1994, was contrary to the provisions of Order 23 Rule 3 of the C.P.C. since neither it was reduced in writing nor were the statements recorded and, therefore, the same was not binding on the plaintiff. To support this contention, he referred to the provisions of Order 23 Rule 3 of the C.P.C. and also relied upon a judgment of this Court in J.S.Dahiya Versus Chatar Singh, 2007 (3) Law Herald (P&H) 2484. On the other hand, learned counsel for the respondents contended that the decree passed in civil appeal no.132 of 1992/120 of 1994 was perfectly valid and in any eventuality, if the plaintiff had any grievance, the filing of a suit was not the remedy and he should have approached the same Court which had recorded the compromise for redressal of his grievance. Reliance was placed on Gopi Ram (deceased) and others Versus Smt.Sumantra Devi and others, 1987 P.L.J. 461. I have thoughtfully considered the rival contentions and have gone through the impugned judgments. R.S.A.No.2431 of 2008 (O&M) -7- .... In my opinion, the recourse taken by the plaintiff by way of filing the instant suit was totally misconceived in view of the law laid down by the Supreme Court in Banwari Lal Versus Smt.Chando Devi (Through L.R.), 1993(3) Recent Revenue Reports 685 (S.C.) and Amteshwar Anand Versus Virender Mohan Singh and others, 2005(4) R.C.R. (Civil) 485 (S.C.). In Banwari Lal's case (supra), it was laid down that where the compromise recorded is unlawful and is sought to be set aside on the ground of misrepresentation and fraud, the only course available is to move the same Court, who recorded the compromise. The Apex Court further held that no separate suit lies in view of the statutory bar created by Order 23 Rule 3-A of CPC, nor an appeal is maintainable in view of bar created under Section 95, sub-section (3) thereof. In Amteshwar Anand Versus Virender Mohan Singh and others (supra), their Lordships of the Apex Court dealt with the provisions of Order 23 Rule 3 of the CPC and held as under:- “Order XXIII, Rule 3, casts an obligation on Court to be satisfied that a suit has been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties. On the material before it, the High Court would have had no reason to hold that the suits had not been adjusted as affirmed by the parties to the application. It was not necessary for the Court to say in express terms that it was satisfied that the compromise was a lawful one. There is a presumption that the R.S.A.No.2431 of 2008 (O&M) -8- .... Court was so satisfied unless the contrary is proved.” A learned Single Judge of this Court in Gopi Ram (Deceased) and others Versus Smt.Sumantra Devi and others (supra) had expressed the similar view and observed that if a party alleges any illegality in the compromise under Order 23 Rule 3 of the CPC on the basis of which consent decree was passed, then the only remedy available to the aggrieved person is to approach the same court for redressal of his or her grievance. That apart, provisions of Rule 3-A of Order 23 of the CPC specifically debars the filing of a suit for setting aside a decree on the ground that the compromise on which it was based was not lawful. Thus, the only remedy available to the plaintiff was to go before the same Court by filing an appropriate application, if he had any grievance against the decree which was passed in appeal on the basis of the compromise and the instant suit was totally misconceived and, consequently, was not maintainable. In the result, the instant appeal has necessarily to fail. It is accordingly dismissed. March 16,2010 ( Mahesh Grover ) “SCM” Judge