IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos.5 and 181 of 1999 Date of decision : August 4, 2010 RSA No.5/1999 Assa Ram …Appellant. Versus Kalawati and others …Respondents. RSA No.181/1999 Assa Ram …Appellant. Versus Jawala Dass and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ramakant Sharma, Advocate, in both the appeals. For the Respondents : Ms Sunita Sharma, Advocate, for respondents No. 1 to 3 and 9 to 11, in RSA No.5 of 1999, and for respondents No.1 to 4 and 6 to 8 in RSA No.181 of 1999. Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate, for respondents No.4, 5, 7 & 8 in RSA No.5 of 1999. Surjit Singh, J (Oral) These two appeals are being disposed of by a common judgment, as they are directed against the same judgment and decree (dated 19th August, 1998) of the first Appellate Court. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Both the appeals were admitted on the following substantial questions of law: “1. Whether the learned lower appellate Court is right in up-setting the findings on Issue No.2 especially when the findings on that issue were not challenged by any of the parties? 2. Whether the impugned judgment and decree is result of non-consideration of duly registered gift deeds Exts.DW1/A and DW1/B dated 10th June, 1976? 3. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of compromise decree dated 20.10.1978 Ext.P3? 4. Whether impugned judgment and decree is result of non-consideration of documents Ext.DA and entry from the Parivar register as well as statements of DW1 and DW2? 5. Whether the learned lower Appellate Court is right in assuming jurisdiction to non-suit the appellant especially when the findings regarding validity of gift had become final between the parties? 3. Facts relevant for the disposal of the appeals may be stated. Respondents Jawala Dass, Sita Ram, Kalawati, Ram Piari, Ramku Devi and Prabhato Devi filed a suit for declaration that they had inherited the estate of late Daulat Ram, alongwith proforma respondents Mahanti and Surto, on account of their being his legal heirs and that defendant-appellant Assa Ram had no right, title or interest in the suit property and the gift deeds, allegedly executed in his favour by Daulat Ram, in respect of the suit property, …3… were result of fraud practised upon and misrepresentation made to said Daulat Ram. It was stated that Daulat Ram, during his life time, had challenged both the gift deeds, but during the pendency of the suit he died and in his place one of his legal heirs Nardei, daughter of his second wife Surto, had come on record and the said legal heir entered into a compromise with appellant Assa Ram and in terms of that compromise half of the property was given to Nardei and the remaining half went to Assa Ram. Plaintiffs challenged the aforesaid compromise decree also, besides challenging the gift deeds. 4. Only Assa Ram contested the suit. He pleaded that Daulat Ram was his father’s brother and he had adopted him as his son, when he was only 15 years of age and after adoption, he had been rendering services to him. It was stated that pleased with the services rendered by him (Assa Ram), Daulat Ram made gifts of his entire property in his favour. He also filed Counter Claim, challenging the compromise decree. He alleged that the decree was result of coercion and pressure exerted upon him by Nardei and claimed that he was owner in possession of the entire suit property. 5. Trial Court framed various issues. Parties went to trial. At the end of trial, learned trial Court held that the gift deeds were valid, issue regarding compromise decree …4… had been redundant, on account of gift deeds having been held valid and consequently dismissed the suit. Counter Claim of appellant-defendant Assa Ram was also dismissed. 6. Appellant filed appeal before the District Judge, challenging the dismissal of his Counter Claim. Three of the plaintiffs filed cross-objections, challenging the decree of dismissal of the suit. Learned District Judge dismissed the appeal and allowed the cross-objections. So, appellant Assa Ram has now filed two appeals, one challenging the dismissal of his appeal and the other challenging the allowing of the cross-objections filed by three of the plaintiffs. 7. I have heard learned counsel for the parties and gone through the record. 8. Learned first Appellate Court, while reversing finding of the trial Court, with respect to the validity of the gift deeds, has reasoned that the very fact of appellant’s entering into a compromise with Nardei, one of the legal heirs of Daulat Ram, in the earlier suit, instituted by Daulat Ram, and giving of half of the gifted property to her, indicates that gift deeds were not genuine, and suggests that in the heart of hearts he knew that the gift deeds were not valid. 9. View taken by the learned first Appellate Court cannot be upheld. Reason given by the first Appellate Court …5… would equally apply to Nardei, who stepped into the shoes of Daulat Ram and going by the reasoning of the first Appellate Court, it can be said that she agreed to enter into compromise with the defendant-appellant to accept only half of the property, knowing that gift deeds were valid. There is no other evidence on record, showing that gift deeds were the result of fraud practised or misrepresentation made to Daulat Ram, as alleged by the plaintiffs-respondents. 10. Learned counsel representing the plaintiffs- respondents submits that only one of the legal heirs of Daulat Ram, namely Nardei (Daulat Ram’s daughter) came on record, after the death of Daulat Ram, and she could not have compromised the suit, on behalf of rest of the legal heirs of deceased Daulat Ram. She submits that when entering into compromise with Nardei, appellant Assa Ram was supposed to be knowing that Daulat Ram had several other legal heirs and without making them party, the compromise could not bind them. She further submits that because of this reason the compromise is bad and so it needs to be declared so and when it is so declared that would automatically revive the suit filed by Daulat Ram. 11. Submission of the learned counsel to the extent that the compromise could not have been effected by appellant Assa Ram with only one of the legal heirs of …6… Daulat Ram is legally sound and, therefore, compromise between Assa Ram and Nardei and the decree based on such compromise cannot be upheld, but the submission that that would revive the suit, instituted by Daulat Ram, is not legally tenable. Reasons are that in the suit filed by the plaintiffs-respondents they have challenged not only the compromise or the decree based on compromise, but also the gift deeds, which means they filed a fresh suit on the same cause of action, on which Daulat Ram had earlier filed the suit. Setting aside of the compromise and the decree based thereon has the implied effect of reviving the cause of action, on which Daulat Ram’s suit was based and pleading the same cause of action, plaintiffs-respondents have filed the present suit. In other words, plaintiffs’ suit is based on the revived cause of action. 12. Defendant-appellant’s plea that the compromise is not binding on him, on account of it being the result of coercion or pressure cannot be upheld, as he did not lead any evidence in respect of the allegation. The compromise may not be valid, as against the plaintiffs-respondents, but binds him as against Nardei. Therefore, his Counter Claim is liable to be dismissed. 13. In view of the abovestated position, it is held that the first Appellate Court was not justified in up-setting the finding of learned trial Court on Issue No.2, regarding …7… the validity of gift deeds nor was it justified in upholding the compromise decree, because the compromise had been effected by only one of the legal representatives of Daulat Ram, who filed the earlier suit. Substantial questions of law, on which the appeals were admitted, are, therefore, answered in favour of the appellant and against the plaintiffs-respondents. Consequently, both the appeals are accepted, judgment and decree of the first Appellate Court are set aside and those of the trial Court restored. Both the appeals stand disposed of. August 4, 2010sd) ( Surjit Singh ), J