R. S. A. No. 4770 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4770 of 2009 (O&M) Date of Decision : January 10, 2011 Tarun Kumar Chaudhary and others .... Appellants Vs. Suresh Chand and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arun Jain, Senior Advocate with Mr. Vishal Goel, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Plaintiffs, having failed in both the courts below, have filed the instant second appeal. The instant entire litigation leading to this second appeal is result of dishonesty on the part of plaintiffs-appellants and their father – defendant no.1 Suresh Chand Chaudhary, who is an Advocate. Now, even appellant no.2 is an Advocate. The plaintiffs alleged that they and their father defendant no.1 constitute joint Hindu family, of which defendant no.1 is Karta. Suit land measuring 11 bighas 12 biswas being 1/8th share of 92 bighas 13 biswas R. S. A. No. 4770 of 2009 (O&M) 2 land is ancestral coparcenary property of plaintiffs and defendant no.1. It was inherited by defendant no.1 from his father, who inherited the same from his own father. Defendant no.1 was, therefore, not competent to alienate the suit property. However, by way of alleged family settlement and compromise dated 05.10.1995 in Civil Suit No.901 of 1995, decree regarding 4-1/2 bighas land out of suit land has been suffered by defendant no.1 in favour of defendant no.2 Asha Gupta. The said compromise and decree are not bona fide, not for legal necessity, nor for benefit of Joint Hindu Family nor an act of good management. The said decree is based on misrepresentation, coercion and fraud. Consequently, plaintiffs continued to be owners in possession of suit land and the aforesaid judgment and decree dated 05.10.1995 and the consequent mutation are illegal and null and void etc. Plaintiffs also sought relief of joint possession of 04 bighas 10 biswas land covered by the said compromise decree. Defendant no.1 remained ex-parte in the trial court. Defendant no.2 contested the suit. However, relationship of plaintiffs and defendant no.1 and constitution of Joint Hindu Family by them with defendant no.1 as Karta was admitted. Other plaint allegations were broadly denied. Defendant no.1, in order to meet expenses of the marriage of his daughter and to finance the business of his son, agreed to sell the entire suit land measuring 11 bighas 12 biswas land to Prem Nath Gupta etc. vide agreements to sell dated 27.05.1992 and 20.03.1995 and took earnest money R. S. A. No. 4770 of 2009 (O&M) 3 under the said agreements. Defendant no.2 had paid the said amounts. Compromise dated 05.10.1995 in the previous suit and consequent judgment and decree dated 05.10.1995 are legal and valid. Prem Nath Gupta, Surender Gupta and Inderjit Gupta, who were party to the previous suit, have not been impleaded as party to the instant suit, although they are also necessary party to the suit. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Narnaul, vide judgment and decree dated 31.07.2007, dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Narnaul, vide judgment and decree dated 17.08.2009. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Defendant no.2 had filed the previous suit No.901 of 1995 impleading present defendant no.1 and plaintiffs as defendants and also impleading Prem Nath Gupta, Surender Nath Gupta and Inderjit Gupta as defendants. In the said suit, agreements relating to 11 bighas 12 biswas land were pleaded, but according to the compromise, the plaintiff was given only 04 bighas 10 biswas land i.e. a little more than 1/3rd of land, which the defendant no.1 had agreed to sell to Prem Nath Gupta etc. Consequently, compromise arrived at in previous suit cannot be said to be illegal because R. S. A. No. 4770 of 2009 (O&M) 4 plaintiffs and defendant no.1 herein got almost 2/3rd of the suit land under the compromise. Defendant no.1 was relieved of his obligations under the said agreements in view of compromise. Consequently, the impugned compromise and consequent judgment and decree dated 05.10.1995 cannot be said to be illegal in any manner. On the contrary, the same can be said to be for the benefit of the Joint Hindu Family of plaintiffs and defendant no.1 herein, who got almost 2/3rd of the suit land under the compromise. In addition to the aforesaid, in the instant suit, plaintiffs have challenged the compromise decree dated 05.10.1995 on the ground that defendant no.1 as Karta had no right to suffer the same. However, the plaintiffs, who are two sons and wife of defendant no.1, were themselves party to the compromise dated 05.10.1995, and therefore, the plaintiffs now cannot turn around and say that defendant no.1 had no right to suffer the said compromise decree. The said compromise decree was suffered by plaintiffs themselves also, and therefore, plaintiffs cannot challenge the same by filing the instant subsequent suit. It is also significant to notice that defendant no.1 got the suit land through Will and not by natural inheritance. Learned counsel for the appellants, relying on a judgment of Hon'ble Supreme Court in the case of Valliammai Achi vs. Nagappa Chettiar and another reported as AIR 1967 Supreme Court 1153 (V 54 C 240), contended that even property obtained under the Will, which defendant no.1 would have otherwise R. S. A. No. 4770 of 2009 (O&M) 5 inherited from his father, would also be treated to be ancestral coparcenary property. The contention cannot be accepted. It has not come in evidence as to how much land was owned by father of defendant no.1 and how many siblings defendant no.1 had and how much land he would have inherited from his father as natural heir. On the contrary, defendant no.1 inherited the suit land under Will and therefore, it has been rightly held by the courts below that it is not ancestral coparcenary property in the hands of defendant no.1. Defendant no.1 had entered into agreements to sell the entire suit property, whereas under the compromise, only 04 bighas 10 biswas land has been decreed in favour of defendant no.2. Consideration for the agreements had been paid by defendant no.2 herein through Prem Nath Gupta etc. in whose favour the agreements to sell had been executed. Defendant no.1 was Advocate at the time of compromise and now, even plaintiff no.2 is also an Advocate. It is thus apparent that plaintiffs and defendant no.1 herein entered into compromise keeping in view their interests and knowing fully well that the compromise is for their benefit. However, after the compromise decree was passed, the plaintiffs have turned dishonest and filed the instant suit just a few days before the expiry of limitation period of three years of the passing of the compromise decree. It has also come in evidence that defendant no.1 was under debt and to clear the same, he had entered into agreements to sell. By way of compromise, R. S. A. No. 4770 of 2009 (O&M) 6 plaintiffs and defendant no.1 have been able to save almost 2/3rd of their suit land. On the contrary, if the compromise had not been entered into, the plaintiffs and defendant no.1 would have been deprived of the entire suit land measuring 11 bighas 12 biswas, whereas under the compromise, defendant no.2 has got 04 bighas 10 biswas land only. Learned counsel for the appellants also contended that defendant no.2, who is a female, could not have got any share in ancestral property by partition or family settlement, whereas in the previous suit no.901 of 1995, she claimed the suit land on the basis of family settlement. The contention is completely misconceived and untenable. Suit no.901 of 1995 filed by defendant no.1 was decreed on the basis of compromise entered into by plaintiffs and defendant no.1 herein. Learned counsel for the appellants also contended that existence of Joint Hindu Family of plaintiffs and defendant no.1 has been admitted by defendant no. 2 and therefore, the suit land held by the said family, assumed the character of coparcenary property. Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of Sher Singh and others vs. Gamdoor Singh reported as 1997 (1) Apex Court Journal 290 (S.C.). The contention is again misconceived. The suit land was not held by the family of plaintiffs and defendant no.1, but was held by defendant no.1 alone in his own name and therefore, the suit land cannot be said to be property of Joint Hindu Family R. S. A. No. 4770 of 2009 (O&M) 7 constituted by plaintiffs and defendant no.1. On the contrary, it is well settled law that a Joint Hindu Family need not necessarily possess any property, although its members may possess their separate individual property. Consequently, in the instant case, merely because plaintiffs and defendant no.1 constituted Joint Hindu Family, it cannot be said that the suit land was property of Joint Hindu Family. However, even assuming it to be property of Joint Hindu Family, the compromise was for the benefit of the said family, which was entered into by all the plaintiffs and defendant no.1 herein because under the compromise, the family has been able to retain almost 2/3rd of the suit land. Defendant no.1 was also under debt and had taken earnest money under agreements to sell the suit land and under the compromise, the said debts also stand cleared. Thus, examined from any angle, compromise dated 05.10.1995 and consequently, judgment and decree dated 05.10.1995 are legal and valid and are not vitiated in any manner. Both the courts below have recorded elaborate judgments dealing with all the contentions raised by the plaintiffs. Concurrent finding recorded by both the courts below against the plaintiffs is fully justified by the evidence on record and is supported by cogent reasons and is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. On the contrary, as noticed in the opening part of the judgment, the instant litigation is result of R. S. A. No. 4770 of 2009 (O&M) 8 sheer dishonesty on the part of plaintiffs and defendant no.1, out of whom, plaintiff no.2 and defendant no.1 are Advocates and are son and father. It is thus manifest that the instant litigation is completely frivolous and meritless. Such frivolous litigation has to be curbed by imposing exemplary cost on the appellants. It is also worth mentioning that the instant suit to challenge compromise decree dated 05.10.1995 is not maintainable in view of mandatory provision of Order 23 Rule 3-A of the Code of Civil Procedure (in short – CPC). The said provision lays down that no suit shall lie to set aside a decree on the ground that the compromise, on which the decree is based, was not lawful. In the instant case, plaintiffs were party to the compromise decree dated 05.10.1995, which is under challenge in the instant suit. Consequently, plaintiffs could not file the instant suit to challenge the said compromise decree in view of provisions of Order 23 Rule 3-A CPC. For this added reason as well, the instant second appeal is liable to dismissal. For the reasons recorded herein before, the instant appeal is dismissed in limine. Appellants are subjected to cost of Rs.15,000/-, to be deposited with the Registry of this Court within one month from today, failing which the case shall be listed for this purpose. January 10, 2011 ( L. N. MITTAL ) monika JUDGE