IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1883 of 2001 (O&M) Date of Decision: 18.5.2009 Suresh Kumar. ....... Appellant through Shri Arun Jain, Senior Advocate with Shri Amit Jain,Advocate. Versus Smt. Kesho and others. ....... Respondent nos.1 & 2 through Shri Vikram Singh,Advocate. Respondent no.3 ex parte. 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. This Regular Second Appeal is directed against judgments and decrees dated 13.12.1996 and 29.11.2000 passed respectively by the Additional Civil Judge (Senior Division), Panipat (hereinafter described as `the trial Court') and the Additional District Judge, Panipat (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiffs- respondent nos. 1 & 2 was decreed and the appeal of defendant-appellant as well as the cross objections of respondent nos. 1 & 2 were dismissed. Respondent nos. 1 & 2 filed a suit seeking a decree of declaration to the effect that they are owners of ½ share of the total land R.S.A.No.1883 of 2001 (O&M) -2- .... measuring 62 kanals 15 marlas situated in village Chhajpur Khurd, Tehsil & District Panipat as detailed and described in the head note of the plaint. As a consequential relief, a decree for joint possession qua the said land was also prayed for. To appreciate the facts, the pedigree table needs to be reproduced:- Shiba I I ------------------------------------------------------------------------------------ I I Singha Birja I I --------------------------------- ---------------------------------------- I I I I Kesho Bharpai Maman died Manga (resp.no.1) (resp.no.2) about one year (resp.no.3) prior to the filing I of the suit. Suresh Kumar (appellant) It is apparent from the above pedigree table that Singha and Birja were two brothers. Singha had two children, namely, Kesho, respondent no.1 and Bharpai, respondent no.2. On the other hand, Birja had two sons, namely, Maman and Manga, respondent no.2. Maman is stated to have died about one year prior to the filing of the suit. The appellant is the grand son of Birja. It was pleaded in the plaint that respondent nos. 1 & 2, Maman and Manga- respondent no.3 were in cultivating possession of the share of respondent nos. 1 & 2 as well on 1/3rd batai; that Maman and respondent no.3 wanted to install a tubewell in their land and for that purpose, they intended to raise loan from the Land Mortgage Bank,Panipat R.S.A.No.1883 of 2001 (O&M) -3- .... by way of mortgaging specific killa numbers of the land; that Maman was, therefore, appointed as General Power of Attorney for the land of respondent nos. 1 & 2, which deed was executed about eighteen years back; and that the loan was obtained from the Land Mortgage Bank and respondent nos. 1 & 2 were getting batai till Kharif,1987. It was averred that Maman died a year prior to the filing of the suit and after his death when respondent nos. 1 & 2 asked the respondent no.3 to pay the batai of their share, he delayed the matter and finally refused to make payment; that he even denied the relationship of landlord and tenant and claimed that the appellant was the owner of the land of their share on the basis of a collusive decree. It was further averred that on enquiry, they came to know that the collusive decree had been obtained on 9.3.1987 in civil suit no.206 of 1987, which was a result of fraud as they were never served in that suit and they never authorised Maman to suffer the same in respect of the suit land. Respondent nos. 1 & 2 had pleaded that the suit land could not have been transferred except by way of a registered document as its value was more than Rs.100/-, that they had only executed a Power of Attorney in favour of Maman to permit him to manage the suit land and receive the batai and to obtain loan for installing a tubewell. They had also pleaded that there was no occasion for them to suffer a collusive decree as there was no family settlement between them and the appellant. They, thus, prayed that the said decree be set aside and they be declared owners of the suit land. Upon notice, the appellant had appeared and filed written statement contesting the suit, whereas respondent no.3 was proceeded ex R.S.A.No.1883 of 2001 (O&M) -4- .... parte. In his written statement, the appellant had raised a number of preliminary objections, viz, that the suit was not maintainable in the present form; that respondent nos. 1 & 2 were estopped from filing the suit by their act and conduct; that the plaint did not disclose any cause of action; that the suit was not valued properly for the purpose of court fee and jurisdiction; that the suit was bad for non-joinder and misjoinder of necessary parties and that the full particulars of fraud were not given in the plaint. On merits, the appellant had admitted the pedigree table as correct, but asserted that respondent nos. 1 & 2 never mortgaged the suit land. He denied that Maman and respondent no.3 had cultivated the suit land as tenant on payment of 1/3rd batai. He also denied that Maman and respondent no.3 wanted to install the tubewell and for that purpose, the power of attorney was executed. It was pleaded that in fact, the general power of attorney was executed by respondent nos. 1 & 2 in favour of Maman, who was fully competent to transfer the suit land and manage it in the manner, he liked. It was further pleaded that a family settlement took place between respondent nos. 1 & 2 and the appellant by which he acquired the absolute ownership rights which were confirmed by the impugned judgment and decree. It was asserted that Maman was duly authorised attorney of respondent nos. 1 & 2 and, therefore, the impugned judgment and decree based on the family settlement was legal and perfect and could not be challenged & set aside. On the basis of the pleadings of the parties, the trial Court R.S.A.No.1883 of 2001 (O&M) -5- .... framed the following issues:- 1. Whether the plaintiffs are owners of the suit land as alleged?OPP 2. Whether the plaint does not disclose any cause of action, if so, to what effect?OPD 3. Whether the suit is bad for want of proper court fee?OPD 4. Relief. After appraisal of the entire evidence on record, the trial Court concluded that the suit of respondent nos. 1 & 2 deserved to be decreed as the family settlement as set up by the appellant had not been proved and consequently, it was held that there was no occasion for them to have parted with their land. It was further held that the decree in question passed in civil suit no. 206 of 1987 was ambiguous as Maman conceded to 3/4th share, whereas the decree was only qua 1/4th share which pointed out to the fact that the Court was conscious of the fact that respondent nos. 1 & 2 did not wish to alienate their property and it was only Maman's share which was alienated. The suit was accordingly decreed. In appeal, the findings of the trial Court were affirmed by the First Appellate Court which further returned a finding that a fraud had been played and that as the value of the suit property was more than Rs.100/- , it could not be alienated by way of a collusive decree. Hence, this Regular Second Appeal. Assailing the findings of the Courts below, learned counsel for the appellant argued that the impugned judgments deserve to be set aside for R.S.A.No.1883 of 2001 (O&M) -6- .... the reason that the General Power of Attorney executed in favour of Maman was never in question and this document gave right to the said Maman to alienate the suit land as well and, therefore, the same had validly been done in favour of the appellant. He further argued that it is a settled proposition of law that as person is bound by the acts of his attorney. It was contended that a collusive decree can be challenged by a party to the decree only on the ground of fraud and not on the ground of non-registration. It was further contended that a separate suit could not have been filed and respondent nos. 1 & 2 could have approached the Court which had recorded the compromise and made a decree in terms of the same and establish that the compromise was not effected and in that event, that Court could have considered and decided the question as to whether there was a valid compromise or not. In support of his arguments/contentions, he placed reliance on Pushpa Devi Bhagat (D), Th.L.R. Smt.Sadhna Rai Versus Rajinder Singh & Ors., 2006(3) R.C.R. (Civil) 479(S.C.); Gurdev Kaur and another Versus Mehar Singh and others, 1990(1) P.L.R. 334 (D.B.) and Smt.Shanti Devi (Dead) represented by L.R. Versus Gian Chand, 2008(2) P.L.R. 393 (S.B.). It was further submitted by the learned counsel for the appellant that the findings regarding the family settlement could not have been recorded because the subsequent Court which is seized of the matter in the civil suit cannot look into such allegation to say that earlier decree which was based on the family settlement was erroneous. On the other hand, learned counsel for respondent nos. 1 & 2 R.S.A.No.1883 of 2001 (O&M) -7- .... argued that the findings of the Courts below are correct and do not warrant any interference in the Regular Second Appeal. It was submitted that a clear-cut case of fraud was established by respondent nos. 1 & 2 as they were successful in bringing evidence on record to show that the General Power of Attorney which was executed in favour of Maman, was only meant to manage the affairs of the suit land and not to alienate the same. It was further submitted that the contention of the learned counsel for the appellant that subsequent suit could not have been filed on the basis of the judgments which have been relied upon by him do not enhance the case of the appellant for the reason that the same were passed while dealing with the matter under Order 23 Rule 3 of the C.P.C., whereas the present decree which has been passed was on the basis of Order 12 Rule 6 of the C.P.C. which is a decree based on the admission of the parties and, therefore, the ratio of those judgments do not apply. He contended that the compromise decree passed on the basis of the written statement admitting the claim of the plaint to be correct is not a compromise decree but it is a judgment on admission and where a compromise decree creates for the first time right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of any party to the suit, the decree or order requires registration and the First Appellate Court has rightly recorded a finding in that regard while dealing with the decree in question. In support of his contention, he placed reliance on Bhoop Singh Versus Ram Singh Major and Ors., 1996(1) Civil Court Cases 210 (S.C.). I have thoughtfully considered the rival arguments/contentions R.S.A.No.1883 of 2001 (O&M) -8- .... and have carefully gone through the whole record. In my opinion, the contention of the learned counsel for the appellant that the decree dated 9.3.1987 passed in civil suit no.206 of 1987 could not have been challenged by way of subsequent suit and only the Court which had passed that decree was competent to unsettle it, appears to be misconceived. In Pushpa Devi Bhagat (D), Th.L.R. Smt.Sadhna Rai Versus Rajinder Singh & Ors. (supra) on which reliance was placed by the learned counsel for the appellant, their Lordships of the Supreme Court observed as under:- “Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in R.S.A.No.1883 of 2001 (O&M) -9- .... accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in Section 96(30 of the Code.” In Gurdev Kaur and another Versus Mehar Singh and others (supra), the Division Bench of this Court held as under:- “A compromise or consent decree can be got set aside on one of the grounds on which a contract canbe set aside,namely, if obtained by `fraud', `misrepresentation' or `coercion', with an additional ground in favour of the minors or persons of unsound mind, if they are able to prove that the next friend or the guardian, who acted on their behalf was negligent in conducting the proceedings. If none of these grounds is established, the Courts in a subsequent suit will have no jurisdiction to go behind the consent decree to find out whether the facts stated in the plaint, which culminated into compromise decree were right or wrong.” In Smt. Shanti Devi (Dead) represented by L.R. Versus Gian Chand (supra), the learned Single Judge of this Court observed in paragraph 8 of the judgment as under:- R.S.A.No.1883 of 2001 (O&M) -10- .... “It is settled proposition that a compromise is a contract/ agreement between the parties. When it is presented in the Court, in any suit or proceedings and the Court is called upon to accept the compromise and pass consequential order, the Court merely takes on record the agreement of the parties and satisfies itself regarding the voluntary nature of such a compromise. If any of the parties later on assails the compromise as invalid on account of exercise of fraud, coercion, misrepresentation etc. and pleads that the compromise/ agreement was unlawful and involuntary, such a compromise cannot be challenged by a separate suit in view of the clear Bar created by Rule 3-A of Order 23 of the Code of Civil Procedure. Therefore, the suit filed by the present appellant-plaintiff on 06.12.1979, after insertion of Rule 3-A in Order 23 of the C.P.C. was not maintainable.” A reading of the above mentioned judgments shows that the same pertained to the decrees which were obtained on the basis of compromise and that prompted the Courts to answer the question as has been detailed above. There is absolutely no quarrel with the proposition as propounded in the above judgments. But, if the facts of the instant case are seen, then order dated 9.3.1987 passed by the Court before drawing out the decree in question assumes great significance. The same is reproduced for ready reference:- “File taken up today on the application of Maman, one of the R.S.A.No.1883 of 2001 (O&M) -11- .... defendants. In the w/s filed by the defendant no.1 Maman on his own behalf as well as own behalf of defts No. 2 & 3 as their general power of attorney and in his statement recorded on oath in the Court today, Sh. Maman deft. No.1 has admitted the claim of the plaintiff in toto on his own behalf as well as on behalf of defts No. 2 & 3 being their general power of attorney. The parties are not at issue. Accordingly, the suit of the plaintiff is decreed to the effect that the plaintiff is owner in possession of 1/4th share of the agricultural land fully detailed as mentioned above. Parties are left to bear their own costs.” It is clear from the above that Maman, who was arrayed as defendant no.1 in the said proceedings, admitted the case of plaintiff therein, i.e., appellant herein. There also appears some ambiguity as has been noticed by the Courts below in the impugned judgments that the suit of the present appellant was directed to be decreed qua 1/4th share of the agricultural land described in the head note of that plaint. It is, however, not clear as to why the entire claim was not decreed because the plaintiff referred to 3/4th share as detailed in the plaint of suit no.206 of 1987. In any eventuality, the fact remains that it was a decree which was based on the admission and this admission qua the share of respondent nos. 1 & 2 was pleaded to be result of fraud by them. Therefore, it cannot be said that the suit for setting aside a decree which has been obtained by playing fraud, was not maintainable. In a decree which has been obtained by way of compromise and a plea is thereafter raised that such compromise is R.S.A.No.1883 of 2001 (O&M) -12- .... unlawful, then in such an eventuality, the Courts have held that the subsequent suit is not maintainable. The parity of the reasoning adequately finds mention in paragraph 8 of the judgment in Smnt.Shanti Devi (Dead) represented by L.R. Versus Gian Chand (supra), the extract of which has been reproduced above. But, in the instant case,it is not a decree which is based on the compromise effected between the parties. It is a case where the suit is filed by the appellant and Maman, while acting on his behalf and purportedly acting as General Power of Attorney of respondent nos. 1 & 2, alienated the land by admitting the contents of the plaint of the appellant. Such an admission and the act of the power of attorney holder to alienate the land in favour of the appellant was pleaded to be the result of a fraud and consequently, if the Courts were to hold that a civil suit is not maintainable, then it would only mean to perpetuate the fraud for all times to come, which view obviously, cannot be sustainable. I am, therefore, of the considered opinion that the contention of the learned counsel for the appellant in this regard is totally meritless and deserves to be rejected outrightly. The next contention that has been raised is that the First Appellate Court was precluded from recording a finding regarding the family settlement. Such a plea does not lie in the mouth of the appellant because it was he, who obtained a decree on the basis of a family settlement. Once such a pleading has been made by him, it was incumbent upon him to prove that there was a family settlement and which had prompted Maman to make such an admission as general power of attorney of respondent nos. 1 R.S.A.No.1883 of 2001 (O&M) -13- .... & 2 in his favour so as to have the effect of alienation of their land in his favour. No such evidence of family settlement has come on record. The appellant having pleaded this fact in the written statement, evidence on this aspect could be looked into and the First Appellate Court was not debarred from recording such a finding on the question of family settlement. Besides this, the entire exercise appears to be the result of fraud which can be inferred from few facts, such as that the power of attorney was executed by respondent nos. 1 & 2 in favour of Maman on 22.3.1971, that the decree in question by which their rights in the suit land were transferred by way of decree dated 9.3.1987,i.e., after sixteen years; that Maman, the power of attorney holder of respondent nos. 1 & 2 had been looking after the land of respondent nos. 1 & 2 for all these years and it is only in the year 1987 that obviously he had become dishonest so as to alienate the suit landin favour of the appellant. Had the intention of respondent nos. 1 & 2 been to permit Maman to alienate the suit land also, then he would not have waited for sixteen years to do so. It was apparently an arrangement to enable him to look after the land which may have also included the raising of loan etc. and creating a mortgage. The First Appellate Court has also noticed that Maman was a member of the Land Mortgage bank from 13.3.1971 till 22.5.1979 which lends some credence to the version as set up by respondent nos. 1 & 2 that the power of attorney might have been given for the purpose of raising loan to install a tubewell in the suit land so as to effectively manage the same. From the cumulative appraisal of the material on record, I am of R.S.A.No.1883 of 2001 (O&M) -14- .... the opinion that the appeal is without any merit and deserves to be dismissed. Ordered accordingly and the judgments & decrees of the Courts below are upheld. May 18,2009 ( Mahesh Grover ) “SCM” Judge