1 S.A.No.212/88 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.212 OF 1988. Kashinath Laxman Khedkar dies L.Rs. 1. Santosh Kashinath Khedkar, Age 9 years, Occ.Education, R/o Shekh Rajur, Tq. Palan, Dist.Parbhani. 2. Sushma Kashinath Khedkar, Age 5 years, R/o Shekh Rajur, Tq. Palan, Dist.Parbhani. 3. Sulabai Kashinath Khedkar, Age 40 years,Occ.Household, R/o Shekh Rajur Tq. Palan, Dist. Parbhani. All are minor U/g of Smt. Sulabai W/o Kashinath Khedkar, (Real mother) Occ.Household, R/o Shekh Rajur, Tq.Palan, Dist. Parbhani. ... Appellants. Versus 1. Ansabai W/o Devrao Landge, 2. Shivaji Manikrao Khedkar. ... Respondents. ... 2 S.A.No.212/88 Mr.H.K.Mundhe, advocate for the appellants. Mr.D.R.Bhadekar, and Mr.S.G.Chapalgaonkar, advocates for the Respondents. ... CORAM : S.V.GANGAPURWALA,J. Date : 22.03.2011. JUDGMENT : 1. This is plaintiff's Second Appeal. The plaintiff had filed suit for declaration of ownership and injunction in respect of the land S.No.25/2 and for recovery of possession of land S.No.158/B and suit house as described in the plaint. It was the case of the plaintiff that he has purchased the suit property vide two sale deeds dated 24.3.1976 from defendant No.1. The trial Court dismissed the suit holding that plaintiff could not prove that the consideration has passed. The plaintiff preferred an appeal. The appellate Court also dismissed the appeal confirming the judgment and decree passed by the trial Court. During the pendency of the suit terms of compromise were presented and verified on 14.1.1977 between the plaintiff and defendant 3 S.A.No.212/88 No.1. The Court did not record the said compromise and both the Courts held that the said compromise was not lawful and did not inspire confidence. The present appeal has been admitted on following substantial questions of law : "(5) When the execution and validity of the compromise was not denied by Bhujangrao during the life time (he was alive for nine months after the verification of the compromise), it should have been held that Bhujangrao has admitted that he has sold the suit property to the plaintiff and as such the plaintiff has proved the purchase of the suit property from Bhujangrao. (6) The Courts below erred in law in not following the mandatory provisions of Rule 3 of Order XXIII of the Civil Procedure Code that when the matter was been settled wholly or in part and a compromise 4 S.A.No.212/88 has been recorded, the Court can well pass the decree. Non-following this mandatory provision of law and disregarding the judgment of the Supreme Court reported in A.I.R. 1970 S.C. 669, is a substantial question of law." 2. Mr.H.K.Mundhe, learned counsel for the appellant/plaintiff strenuously contended that : (a) When the defendant No.1 had entered into the compromise and during his life time, he never denied the execution and validity of the compromise then it should have been held that defendant No.1 has sold the suit property to the plaintiff. (b) It was erroneous on the part of the trial Court in not recording the compromise inasmuch as Order 23 Rule 3 of the C.P.C. mandates and cast obligation on the Court to record the same and to pass decree on the basis of said compromise. 5 S.A.No.212/88 (c) The sale deed is on record which is registered instrument, as such the Courts should have relied upon the registered instrument. Minor contradiction in passing of the consideration amount would not affect the validity of the sale deed itself. (d) The terms of compromise which are verified by the defendant No.1 is an admission on the part of the defendant No.1 of he having executed the sale deed and having transferred the title. The defendant No.2 had no right, title and authority to dispute the same as during the life time of defendant No.1 he did not get any right being an adopted son. (e) The defendant No.2 could not prove his theory of partition. Just because in January 1976, his name was mutated in revenue record in ownership and cultivation column will not bestow title on him. This aspect has not been considered. 3. Per contra, Mr.Bhadekar and 6 S.A.No.212/88 Mr.Chapalgaonkar, learned counsels for Respondent NO.2 supported the judgment and canvassed that : (a) The Courts below have rightly refused to record the compromise. The circumstances on record belies the theory of compromise. It is brought on record that immediately after the sale deed, the defendant No.1 had prosecuted the plaintiff and his brothers i.e. witnesses to sale deed for having cheated him. This fact is admitted by the plaintiff. The said complaint was U/s 420 of the I.P.C. for cheating the defendant No.1 and getting the sale deed executed from him about the suit properties. The said complaint was presented within one month of the said alleged sale deed. The defendant No.1 had also filed an affidavit before the Special Land Ceiling authority against the plaintiff and his brothers. The sale deed described three properties. Out of that S.No.25/2 was sold by defendant No.1 to Raghunath by registered sale deed on 10.11.1967 and Reghunath was in possession since the said date. S.No.158/B was in possession of defendant No.2 who is adopted son 7 S.A.No.212/88 of defendant No.1. The plaintiff has stated that he had paid consideration of Rs.27,000/- for the purchase of the said suit properties vide registered sale deed dated 24.3.1976 but the witnesses of the plaintiff stated that only Rs. 17,000/- (Rupees seventeen thousand) were paid. Even the registered instrument shows consideration of Rs.1,000/- (Rupees one thousand) and another sale deed of Rs.16,000/- (Rupees sixteen thousand). Even house property which is subject matter of sale deed was sold to third person much prior to the sale deed in question. All these factors go to show that defendant No.1 was cheated by the plaintiff and as such did not get any right. 4. With the assistance of the learned counsels, I have gone through the judgments and record. The present appeal will have to be considered in view of the substantial questions of law framed by this Court at the time of admission of appeal. Order 23 Rule 3 of the C.P.C. mandates the Court to record the compromise and to pass a decree in accordance 8 S.A.No.212/88 therewith if only the Court is satisfied that the compromise is lawful. Perusal of Rule 3 of Order 23 it is manifest that the Court has to be satisfied regarding the validity and legality of the compromise and then only it can record the same. At the time when the compromise was filed, an application of defendant No.2 to implead him as a party was pending. It is brought on record that the properties which were not suit properties at the relevant time were also included in the compromise and those properties were already sold to other persons much prior to the execution of sale deed by defendant No.1 in favour of plaintiff. Even defendant No.2 had claimed his interest in the said property. In view of the said conspectus, the Court did not record the compromise. The defendant No.1 would have no right and title to deal with the property which he has already sold to other persons. Effecting a compromise of such property would certainly not be lawful. In such circumstances, not recording of compromise was proper on the part of the Courts below. The Courts below have discussed the various circumstances, instances 9 S.A.No.212/88 and the evidence on record and held said compromise was improper and not lawful. It was held that just after the sale deed was got executed by the plaintiff from the defendant No. 1, the defendant No.1 had filed a complaint U/s 420 of the IPC. So also the defendant No.1 had filed affidavit before the Special Land Ceiling authority against the plaintiff and his brothers. Property S.No.158B was in possession of the defendant No.2 who is adopted son of defendant No.1. The defendant No.1 died within nine (9) months of recording of compromise and it nowhere transpires that during the life time of defendant No.1, the evidence was recorded nor any proceeding had taken place concerning defendant No.1. The witnesses of the plaintiff have also not supported the plaintiff. Sale deeds relied by plaintiff are held as not proved. The amount of consideration as claimed by the plaintiff had never passed. The plaintiff claimed that total amount of consideration of Rs.27,000/- (Rupees twenty seven thousand) was paid. His witness said only Rs.17,000/- (Rupees seventeen thousand) were paid, whereas the instrument of sale also 10 S.A.No.212/88 depicts that Rs.17,000/- (Rupees seventeen thousand) were only paid. There is also nothing on record that the said amount was actually paid, more particularly in the wake of the fact that the defendant No.1 had filed a complaint U/s 420 of the IPC for cheating against the plaintiff and his brothers for having got the sale deed executed by defrauding him. The Courts below in view of all the aforesaid facts and also evaluation of the oral evidence have arrived at a plausible conclusion. The Courts have rightly held that the said compromise could not have been relied upon and would not effect the rights of the defendant No.2 nor would give any right to the plaintiff. 5. In the result, the Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa212.88 11 S.A.No.212/88