1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 67 OF 1992 Prabhakar Yashwantrao Pangavhane & ors. ... Appellants v/s Keshav Parvat Dhomase & ors. ... Respondents Mr.P.N.Karlekar for the appellants. Mr.R.M.Haridas i/by Mr.P.N.Joshi for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 14TH SEPTEMBER, 2009 ORAL JUDGMENT: 1. The second appeal has been filed for setting aside the judgment and order in Civil appeal No.59 of 1984 and the judgment and order in Civil Suit No.111 of 1970. 2. The facts giving rise to the present appeal are as follows :- The land bearing Survey No.91/1 was owned by one 2 Jagannath Rathi. He sold this land to plaintiffs by a sale deed of 30.1.1961 for an amount of Rs.3500/-. The possession of this land was handed over to the plaintiffs. Thereafter there was a partition of the aforesaid land under which the well situated in the land fell to the share of plaintiff No.1. However, the record of rights did not reflect the partition and the name of plaintiff No.2 continued in the records. It appears that, after the partition, the plaintiff No.1 tried to install an oil engine to draw water from the well which according to the defendants was in their property i.e. land bearing Survey No.91/2. The defendant No.1 in the present suit therefore filed Civil Suit No.35 of 1962 against the plaintiff No.1 (hereinafter referred to as “the plaintiff”) for a declaration that the well was situated on the land bearing Survey No.91/2 and that the plaintiff was not entitled to any water from that well. 3. This suit was compromised. The present defendant No. 1 admitted the plaintiff’s ¼ share to the water from the well. It was agreed that this water should be drawn from the pond (tharola) to the north of the well. It was also agreed that the well was situated in land bearing Survey No.91/2 and that defendant No.1 would not create any hurdles for the plaintiff to draw water from the well. The other defendants to the 3 present suit were not party to the compromise decree. 4. It appears that the plaintiffs later became aware that the well was not situated in land bearing Survey No.91/2 but in land bearing Survey No.91/1 i.e. the land in possession of the plaintiffs. They therefore filed Civil Suit No.111 of 1970 against the appellants herein. Before the Civil Judge, Jr. Divn., Niphad. The prayers sought by the plaintiffs were for a declaration that the compromise decree passed in Civil Suit No.35 of 1962 be declared null and void. A further declaration was sought to the effect that the suit well was situated in land bearing Survey No.91/1 and that the plaintiffs have ¼ share in the water from that well. An injunction was sought restraining the defendants from obstructing the plaintiffs’ right. Although the suit was filed by both plaintiff Nos. 1 and 2, the relief which was prayed for was essentially for protecting the rights of plaintiff No.1 who claimed that he had a right to draw water from the suit well. 5. The defendant No.1 filed his written statement contending that the sale deed executed by Rathi in favour of the plaintiffs does not mention that the well was situated in the land bearing Survey No.91/1. It was therefore submitted that the plaintiffs were not entitled to any relief. The 4 appellants i.e. defendant Nos.2, 6 and 8 also filed their written statement contending that the compromise decree was not binding on them. 6. After the evidence was led, the Trial Court decreed the suit. It was held that the plaintiffs have proved that the well was situated in land bearing Survey No.91/1 and that they had ¼ share to the water from the well. It was further held that the plaintiffs had proved that they could use this well water for lands bearing Survey Nos.85, 88, 90 and 92 only. The Trial Court declared that the compromise decree in R.C.S. No.35 of 1962 was null and void because of a mistake of the parties. The plaintiffs were therefore granted an injunction by the Trial Court restraining the defendants from obstructing the plaintiff No.1 from using water from the suit well. 7. Being aggrieved by the decree, the appellants herein preferred Civil Appeal No.59 of 1984. The appeal was preferred only by defendant Nos.2, 6 and 8 before the Trial Court. The appeal was dismissed by the lower Appellate Court. The findings of the Trial Court were confirmed by the Appellate Court. 8. The second appeal has been filed challenging these 5 orders. It has been admitted on the following substantial questions of law :- (i) Whether the decree passed by the two Courts below are vague, unclear and imperfect, in that, the decree do not clarify in respect of which well of water in question is utilized away ? (ii) Whether the water can be used for irrigating lands which were purchased by the plaintiffs during the pendency of the suit/appeal ? (iii) When the plea of mistake simplicitor in describing the location, whether the land bearing Survey No.91/2 or 91/1 does not entitle the plaintiffs to prefer the suit in view of the provisions of Section 44 of the Indian Evidence Act ? 9. In my opinion, the aforesaid questions will have to be re-framed in the following manner :- (i) Whether the compromise decree in Regular Civil Suit No. 35 of 1962 could be set aside when there was no allegation that it had been obtained by fraud, misrepresentation or coercion ? 6 (ii) Whether the compromise decree was binding on the appellants when they were not parties before the Court in Regular Civil Suit No.35 of 1962 ? (iii) Whether the inferences drawn by both the Courts below are perverse, inasmuch as the sale deed on which the plaintiffs had relied indicates that the well was on the land bearing Survey No.91/2 which has been reiterated in the compromise decree in Civil Suit No.35 of 1962 ? 10. Mr.Karlekar appearing for the appellants submits that the plaint indicates that the well is situated on the land bearing Survey No.92/1. The plaintiffs have claimed ¼ share from this well which they have pleaded is on the land bearing Survey No. 92/1. The description of the property mentioned in the plaint, according to Mr.Karlekar, indicates that the well was neither on land bearing Survey No.91/1 nor on 92/1. He submits that when the identity of the property is unclear, the suit itself could not have been decreed. The learned advocate then draws my attention to the present suit in which it has been stated that the well was situated on the land bearing Survey No.91/1. He submits that this statement is completely contrary to the pleadings of the plaintiffs in the 7 earlier suit i.e. Civil Suit No.35 of 1962. He then points out that the declaration sought by the plaintiffs for setting aside the compromise decree could not have been granted as there was no pleading that the compromise decree was vitiated either by fraud or misrepresentation. He therefore submits that both the Courts below ought not to have set aside the compromise decree. He further submits that the compromise decree has been recorded after taking into consideration the plaintiff’s contention in the Civil Suit No.35 of 1962 wherein it has been pleaded that the well was on the land bearing Survey No.92/1. He further points out that the sale deed under which the plaintiffs became owners of the suit lands on the sale of the lands to them by Jagannath Rathi indicates that the well is neither on land bearing Survey No.91/1 nor on 92/1, but is situated on the land bearing Survey No.91/2 which is owned by the appellants. 11. Mr.Haridas appearing for the respondent submits that both the Courts below have, after consideration of all the documents produced before them, held that the well is situated on land bearing Survey No.91/1. It is submitted that both the Courts below have considered various documents which were produced, including certified copies of sale deeds dated 4.1.1900 and 5.7.1904. The Courts have found that the sale deed of 4.1.1900, Exh.89, indicates that the well exists 8 on land bearing Survey No.92/2, whereas the sale deed of 5.7.1904, Exh.90, shows that the well exists in land bearing Survey No.91/1. The defendants have admitted that only one well was in existence in lands bearing Survey Nos.91 and 92. The learned advocate points out that the Trial Court, after considering all the evidence before it, has held that the well was clearly situated in land bearing Survey No.91/1 and not on land bearing Survey No.92/1 nor on land bearing Survey No.91/2. He submits that both the Courts below have rightly held that the well is situated in land bearing Survey No.91/1 and that the plaintiffs are entitled to ¼ share of the water drawn from the well. He further submits that the evidence on record indicates that there was a mistake while recording the compromise decree to the effect that the well was situated in land bearing Survey No.91/2 when in fact it was situated in land bearing Survey No.91/1. He submits that no error has been committed by either the Trial Court or the Appellate Court and, therefore, the appeal should be dismissed as no substantial question of law arises for determination in the second appeal. 12. With the assistance of the learned advocates appearing for the parties, I have perused the documents on record including the sale deeds. I have also perused the compromise decree which was filed in Civil Suit No.35 of 9 1962. The sale deeds under which the plaintiffs acquired land bearing Survey No.91/1 from Jagannath Rathi does not in any manner describe the property with a well. In fact, the property which is described in the sale deeds and on which the plaintiffs have relied is land bearing Survey No.92/1, which has a well. Admittedly, land bearing Survey No.92/1 is in possession of the plaintiffs. Therefore, the question of the appellants obstructing their possession of land bearing Survey No.92/1 or the well standing in that property does not arise. 13. The compromise decree also in fact indicates that the parties have accepted that the well is situated on the land bearing Survey No.91/2 which is owned by the defendants i.e. the appellants herein. In fact, it is for this reason that the plaintiffs filed the suit for injunction against the defendants, restraining them from obstructing the plaintiffs’ use of the well water. Had the well being situated in land bearing Survey No.91/1, the question of filing Civil Suit No.111 of 1970 for injunction would not have arisen. Therefore, in my opinion, both the Courts below have drawn improper inferences, not based on any material on record and in fact against the compromise decree. It must therefore be held that the suit well is situated in land bearing Survey No.91/2. 10 14. The question which remains is, whether the compromise decree needs to be set aside. There is no evidence on record to prove that the compromise decree is vitiated by fraud or that it had been obtained by duress or coercion, etc. Both the Courts below have therefore erred in setting aside the compromise decree. 15. A feeble attempt was made by Mr.Karlekar to contend that the compromise decree was not binding on the appellants since they were not parties to the compromise. This submission cannot be accepted for more than one reason. In fact, Mr.Karlekar has relied on the compromise decree to submit that the well is situated on the land bearing Survey No.91/2. When admittedly the suit well is in land bearing Survey No.91/2 and the appellants have in no uncertain terms accepted the compromise decree, the parties will be bound by the same. The appellants cannot approbate and reprobate. No steps have been taken by the appellants to challenge the compromise decree. They cannot get relief in the present suit. 16. The appeal is therefore allowed. 17. The decree is set aside. Compromise decree passed in Civil Suit No.35 of 1962 revives. ..... 11 12