IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 67 of 2007 Reserved on: 7.12.2011 Date of decision: 16.12.2011 1. Ramji s/o Shri Chetu, resident of Village Davani, Pargana Dharampur-Paher, Tehsil Nalagarh, District Solan, (H.P.). 2. Kalu Ram, son of Shri Chetu, Resident of Village Davani Pargana Dharampur-Paher, Tehsil Nalagarh, District Solan, (H.P.). 3. Gyan Chand, S/o Shri Chetu, Resident of Village Davani Pargana Dharampur-Paher, Tehsil Nalagarh, District Solan, (H.P.). 4. Chetu, son of Shri Mangatu, Resident of Village Davani Pargana Dharampur-Paher, Tehsil Nalagarh, District Solan, (H.P.) …..Appellants Versus 1. State of Himachal Pradesh through Financial Commissioner (Revenue) to the Government of Himachal Pradesh, Shimla- 171002. 2. The Director of Consolidation, Himachal Pradesh, Block No. 28, SDA Complex, Kasumpti, Shimla-171 009. 3. Shri Balak Ram, son of late Shri Paras Ram; 4. Shri Ram Lal, son of late Shri Paras Ram; 5. Smt. Debo Devi, w/o late Shri Prem Chand; 6. Km. Banti (minor) through his mother Smt. Debo Devi; 7. Shri Sanjeev Kumar(minor) through his mother Smt. Debo Devi; 8. Satya Devi wife of late Shri Ishwar Chand; 9. Shri Raj Kumar (minor) through his mother Smt. Satya Devi; 10. Shri Surinder (minor), through his mother Smt. Satya Devi; 11. Shri Devi Singh son of late Shri Surat Ram; (All residents of village Dabni (Diella), Pargana Dharampur, Tehsil Nalagarh, District Solan, (H.P.) …..Respondents. 12. Shri Nand Lal son of late Shri Surat Ram; 13. Shri Tarsem Lal, son of late Shri Surat Ram; 2 14. Shri Hari Chand, son of late Shri Surat Ram; 15. Smt. Indro Devi, wife of late Shri Surat Ram; (All residents of village Dabni (Diella), Pargana Dharampur, Tehsil Nalagarh, District Solan, (H.P.) …..Proforma Respondents Appeal under Clause 10 of Letter Patents of Delhi High Court as applicable to the H.P. High Court against the orders dt. 12.6.07 passed in CWP No. 251/04 by Hon’ble Single Judge, whereby writ petition filed by the present appellants stand dismissed, with the prayer that the present appeal may be accepted and the impugned orders dt. 12.6.07 may very kindly be set aside and also the orders dt. 7.1.04 passed by respondent No.2 herein and that of Addl. Director, Consolidation dt. 7.7.2001 may be restored, in the alternative, the writ petition may kindly be ordered to be heard and decided afresh in the interest of law and justice. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting? Yes. For the appellants: Mr. Ajay Sharma, Advocate. For the respondents: Mr. Rajesh Mandhotra, Dy. AG for respondents No. 1 and 2. Mr. Himat Negi, Advocate vice Mr. Arun Kumar, Advocate, for respondents No. 3 to 11. Mr. J.R. Poswal, Advocate, for proforma respondents No. 12 to 15. _____________________________________________________ 3 Deepak Gupta, J 1. This Letters Patent Appeal is directed against the judgment dated 12.6.2007, passed by the learned Single Judge, whereby he rejected the writ petition filed by the present appellants. 2. Briefly stated the facts of the case are that the appellants and the private respondents were joint owners- in-possession of land measuring 15-17 bigha, comprised in Khasra No. 95, situate in Mohal Dabni. Consolidation proceedings took place and during these proceedings certain lands were allotted to various parties. The case of the appellants is that 5 biswas of land, which is situated just behind their house, was reserved for their abadi and in lieu thereof the private respondents were allotted 1 bigha, 7 biswas of land. The private respondents assailed the said order of the Consolidation Officer but the objections were rejected. Thereafter, an appeal was filed before the Settlement Officer, Consolidation of Holdings, Bilaspur, who decided the matter on 21.12.1999. It would be pertinent to refer to the relevant portion of the order, which reads as follows: “Both parties were summoned and they appeared in person and their counsels were also present. Arguments of both parties were heard and record examined. They requested that spot be inspected so today on 21.12.99 at 4 P.M. spot was inspected. The value of Khasra no. 95 is 16 Annas where as the value of Khasra no. 86 is 68 annas. Moreover it one kilometer away from the house of appellants. On the spot appellants told that respondents have khasra no. 556/1 4 measuring 12 bishwa situated in Mohal Dabani adjoining the house of appellants. Appellants wanted 4 times land from Khasra no. 556 whereas respondents agreed 2 times. But at last it was agreed at 12 bishwas. So tatima were got prepared.” 3. Against this order the present appellants filed an appeal before the Additional Director, who allowed the same on the ground that no written compromise had been effected between the parties. Thereafter, a revision was carried to the Director, who came to the conclusion that since the Settlement Officer had decided the appeal on a compromise entered into between the parties, no appeal lay against the same. The learned Single Judge has also come to the conclusion that since the order which was challenged was a consent order, he saw no reason to interfere in the order passed by the Director of Consolidation. 4. With great respect to the learned Single Judge, we are unable to agree with the finding that the order, in question, was a consent order. We have extracted the relevant portion of the order in detail hereinabove. The appellants clearly wanted four times land from Khasra No. 556 whereas the respondents were agreeable to give two times and finally it was agreed that 12 biswas of land be granted, but it is not clear from where this 12 biswas was to be granted. The consent is not clear cut. 5. We are not in agreement with the contention of Shri Ajay Sharma, learned counsel for the appellants that 5 since Khasra No. 556 is far away, this land could not have been exchanged. By consent the parties they may accept such land, which may not be strictly in accordance with the scheme. Even if the land is situated in different mohals, if the parties agree they can accept the land in another mohal. Therefore, we do not agree with the submission that the agreement, if any, was against law. 6. The Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as the ‘Act’) is a self contained Code. The Civil Court’s jurisdiction is barred in terms of Section 57 of the Act. The question which arises before this Court is how a compromise should be recorded by the authorities acting under the Act. Section 50(5) of the Act reads as follows:- “50. Powers to enforce attendance of witnesses in certain matters and application of Code of Civil Procedure:- (1) xxx xxx xxx (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (5) Unless otherwise expressly provided by or under this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to all proceedings including appeal and application under this Act.” 7. A bare reading of this provision shows that unless something contrary is there in the Act the provision of the Code of Civil Procedure shall apply to all 6 proceedings carried out under the Act. Order 23 Rule 3 of the Code of Civil Procedure deals with compromise of suit and reads as follows:- “3. Compromise of Suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise {in writing and signed by the parties}, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith {so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit}: {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.}.” Therefore, a compromise has to be in writing and signed by the parties. 8. The Apex Court in Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988, Supreme Court 400 held that for a suit to be adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be completed agreement between them. This matter was thereafter 7 taken up in a number of cases and the law laid down in Gurpreet Singh’s case (supra) was to a large extent whittled down in Byram Pestonji Gariwala v. Union Bank of India, AIR 1991 Supreme Court 2234, wherein the Apex Court held that the agreement can be signed by the recognized agent or by the pleader. In Jineshwardas v. Jagrani, AIR 2003 Supreme Court 4596, the matter was settled in Court on the basis of the statements made by the counsel which statements were recorded. The Apex Court held that such order could not be challenged when the statements of the counsel had not been challenged. 9. In the present case, the order dated 21st December, 1999 does not clearly indicate who had made the statement. It is not clear who was present at the time when the spot inspection was carried out on 21st December, 1999. It is also not clear whether all the persons who were arrayed as respondents before the Settlement Officer were present or not. No statements of the counsel or the parties were recorded. Even if there was no agreement or compromise in writing at least the statements of the parties or of the counsel must be recorded, which has not been done. Therefore, there is no compromise in terms of Order 23 Rule 3 CPC. 10. Mr. J.R. Poswal, learned counsel for the private respondents, urges that in view of law laid by the Apex Court in State of Maharashtra v. Ramdas Shrinivas Nayak, 1982 Supreme Court 1249 and by this Court in Tek Ram v. Tot Ram, 2004 (2) Shim. L.C. 61 when the plaintiff does 8 not press an issue or makes a statement before the Court then he cannot be heard to urge that he has not made the statement and must approach the same Court for the relief. In this case there is no statement attributed to any of the respondents present before the Settlement Officer. Who made the statement is not clear? Furthermore, as laid down by the Apex court, even if the counsel may make a statement the compromise must either be in writing or must be in accordance with some statement of the counsel recorded by the Court. In this case there is no statement either of counsel or of the parties recorded. Further as pointed out above, it is not clear which 12 biswas of land was to be given. Therefore, we are of the considered opinion that this order cannot be termed to be a consent order. The appeal is accordingly allowed and the judgment of the learned Single Judge is set aside. 11. We are, however, not going into the merits of the case and feel that the matter should be remanded to the Director Consolidation for decision afresh, who shall give the findings on the basis of merits and not on the basis of any alleged agreement or compromise between the parties. The petition is disposed of in the aforesaid terms. No costs. (Deepak Gupta) Judge December 16, 2011 (V.K. Ahuja) (vt) Judge