1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.180 OF 1993. 1. Bansi S/o Sakharam Shikare, Age about 60 years, Occ. Agriculture, R/o Village Mirkheda, Tq. Paithan, Dist. Aurangabad. 2. Rangubai W/o Bansi Shikare, Age about 50 years, Occ. Agriculture, R/o Village Mirkheda, Tq. Paithan, Dist.Aurangabad. ... Appellants. Versus 1. Bhaosaheb S/o Dinkar Gawde, Age 50 years, Occ.Agriculture, R/o Village Mirkheda, Tq.Paithan, Dist.Aurangabad. 2. Sambhaji S/o Dinkar Gawde, Age 37 years, Occ.Agriculture, R/o Village Mirkheda, Tq. Paithan, Dist.Aurangabad. 3. Baban S/o Dinkar Gawde, Age 34 years, Occ.Agri., R/o Mirkheda, Tq.Paithan, Dist. Aurangabad. ... Respondents. ... Mr.Mujtaba Mustafa, advocate for the appellants. Mr.R.P.Phatke, advocate for the Respondents. ... 2 CORAM : V.R.KINGAONKAR,J. Date : 03.12.2009. ORAL JUDGMENT 1. This appeal is directed against compromise decree rendered in Civil Appeal No. 140/1992, whereby decree in terms of settlement was rendered by the first appellate Court. 2. The appellants are husband and wife inter se. The appellant No.2 was not a party to the suit (RCS No.314/1983). The appellant No.1 - Bansi is the original plaintiff. He filed suit for recovery of possession in respect of a part of agricultural land bearing Gat No.5 admeasuring 18 acres 20 gunthas out of land Gat No.51 situated at village Mirkheda. According to him, he and father of the defendants purchased 2/3rd and 1/3rd share respectively out of land Gat No. 51 from the previous owner by name Madhukar. He asserted that subsequently he was dispossessed by the defendants. The contention of the defendants Nos.1 to 3 was that the land was sold only to their father by the previous owner and hence,he (father) was in exclusive possession of the 3 entire land. They contended that the plaintiff had no concern with the suit land. They further submitted that the plaintiff was never in possession and a false suit was filed by him. 3. The trial Court decreed the suit. 4. The Respondents (defendant Nos.1 to 3) preferred an appeal (RCA 140/1992). It appears that the defendants and original plaintiff Bansi filed compromise petition in the appellate Court. They decided to give northern 5 hectares land to plaintiff Bansi as per the map which was part and parcel of the compromise petition. In accordance with the terms of the compromise, the learned District Judge directed disposal of the appeal. 5. The appellants would submit that the appellant No.2 (wife) was authorised to look after Civil litigation and, therefore, the appellant No.1 had no concern with the matter. He could not have compromised the suit (RCA No. 140/92) because he was incompetent person due to mental disorder. He was not having sound mental 4 state of mind. They would further submit that the relevant procedure U/o XXIII Rule 3 of the C.P.C.was not followed by the learned District judge. They further submit that the learned District Judge failed to record finding that the compromise was entered into by the parties with free will and full understanding nor made any efforts to examine whether the terms of the compromise were voidable because the appellant No.1 was incompetent to enter into such settlement. On these premises, the appellants seek intervention of this Court and challenge the compromise decree. 6. It is argued by learned advocate Mr.Mujtaba that the appellant No.2 was not party to the appeal though she was the Power of Attorney of Holder of the appellant No.1 and that the Respondents purposefully did not join her. He would submit that when the decree was in favour of the appellant No.1, there was no need to enter into compromise but the Respondents have taken undue advantage of the mental deficiencies of the appellant No.1. He argued that the 5 compromise could not have been accepted without recording satisfaction about free will of the parties and legality thereof. He invited my attention to certain observations in "Kishun alias Ram Kishun (dead) through L.Rs. Vs. Bihari (D) by L.Rs." AIR 2005 Supreme Court 3799. 7. At the outset let it be noted that while admitting the Second Appeal, no substantial question of law was formulated as required U/s 100 of the C.P.C. Sub-section (5) of Section 100 of the C.P.C. would make it explicit that additional substantial question of law may be framed only when there is already some substantial question of law raised while admitting the appeal. That is not the case herein. Obviously, there is technical difficulty in proceeding with the Second Appeal for want of substantial question of law. 8. For a brief moment, assuming that the absence of record regarding due satisfaction of the learned Additional District Judge in respect of the terms of the settlement as per free will 6 of the parties is violation of Order XXIII Rule 3 of the C.P.C. and could be regarded as substantial question of law then also I find it difficult to consider the submissions of Mr.Mujtaba. The reason is not far to seek. Rule 3 of Order XXIII contains proviso as below : " Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment." 9. The wording as used in proviso to Rule (3) will make it amply clear that if any party alleges adjustment and it is denied by the other party then the Court is required to decide such satisfaction on the basis of the material placed on record. It is true that the opening sentence 7 of Rule (3) does imply that the adjustment of the claim by any lawful agreement or compromise is required to be proved to the satisfaction of the Court. The satisfaction of the Court does not mean that any express language is required to be used by the Judicial Officer while recording the terms of the compromise. The parties to the appeal were present in person and along with their counsel when the compromise petition (Exh. 21) was filed. The terms of the compromise were verified. The order passed by the learned District Judge below the compromise is thus : "The appellant Nos.1 and 3 and Respondent present in person with their counsel. They admit the contents of the compromise petition to be correct. Hence, compromise is allowed. Necessary order is passed below Exh.1." This order at bottom of the terms of the compromise along with final order are to be harmoniously construed. If both these orders are considered together, there remains hardly any 8 reason to hold that the learned Additional District Judge did not satisfy himself regarding the settlement. On the very face of the record, it is manifest that the parties agreed to divide the land in question as per the terms of the settlement. There is absolutely nothing on record to show that the appellant No.1 suffered any mental disability and was, therefore, incompetent to enter into the compromise. It is pertinent to note that he had filed the suit in the trial Court. In support of his claim, he also got examined PW 1 Madhukar Tupkari i.e. the vendor. Thus, he acted like a prudent person during course of the trial. It is highly improbable that all of a sudden, he had lost balance of mind while the appeal was pending and became incompetent to enter into the compromise terms. Considering these reasons, I do not find any substance in the Second Appeal. 10. In the result, the appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa18093 9