Regular Second Appeal No.3155 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3155 of 2010 (O&M) DATE OF DECISION: 5 th APRIL, 2011 Giani Ram .... Appellant Versus Rai Singh .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Ms. Indu Bala, Advocate for Mr. N. D. Achint, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.9291-C of 2010: Allowed as prayed for. CM No.9292-C of 2010: For reasons mentioned in the application, which is accompanied by affidavit, delay of 106 days in re-filing the appeal, is condoned. Main Appeal: Plaintiff Gian Ram having failed in both the courts below has filed the instant second appeal. Plaintiff-appellant filed suit against defendant-respondent Rai Singh alleging that plaintiff has 1/4th share in the suit plot i.e. Ahata No.36 and plaintiff's brother Leela Ram also has 1/4th share therein and plaintiff's cousin Jai Narain has half share therein. The plaintiff as co-sharer is in possession of the suit plot. Defendant is neither co-sharer nor in possession thereof. However, he threatened to interfere in plaintiff's possession over the suit plot. Regular Second Appeal No.3155 of 2010 (O&M) -2- The plaintiff had previously filed suit against defendant but compromise was obtained in that suit under pressure, collusion and forcibly and the said suit was withdrawn on the basis of said compromise by telling the plaintiff that defendant would not make any construction in the suit plot and would not dispossess the plaintiff therefrom. The statement made in the court in that suit was not read over to the plaintiff nor the compromise was read over and explained to him. The compromise is result of fraud, collusion and misrepresentation. The plaintiff sought declaration that he and his brother Leela Ram are owners of the suit plot to the extent of 1/4th share each and their cousin Jai Narain is owner of half share therein and compromise in the previous suit between the same parties, which was dismissed as withdrawn on 11.08.1997, is illegal and null and void etc. Permanent injunction restraining defendant from interfering in plaintiff's possession over the suit property and from dispossessing the plaintiff therefrom was also claimed. The defendant broadly denied the plaint allegations and claimed that defendant is owner in possession of the suit property and also adjacent portion of Ahata No.37. Consequently, question of dispossessing the plaintiff from the suit plot does not arise. Compromise in the previous suit is legal and valid. All grounds to challenge the compromise were controverted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 03.05.2008 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated 29.07.2009. Feeling aggrieved, plaintiff has filed the instant second appeal. Regular Second Appeal No.3155 of 2010 (O&M) -3- I have heard learned counsel for the appellant and perused the case file. The plaintiff himself admitted in his cross-examination that defendant had taken possession of the suit land in the year 1984 and since then defendant is in possession thereof. In view of this admission of the plaintiff himself, his plea that he is in possession of the suit property stands falsified. Moreover, since defendant is in possession of the suit property since long before the filing of the suit, suit for declaration and injunction alone (without claim the relief of possession) is not maintainable in view of Section 34 and Section 41(h) of the Specific Relief Act, 1963. In addition to the aforesaid, in view of compromise effected in the previous suit also, the plaintiff cannot succeed in the instant suit. Plaintiff's solitary statement that compromise was obtained by fraud and misrepresentation etc. cannot be accepted to substantiate his aforesaid version. Plaintiff's statement stands rebutted by the defendant's evidence. Plaintiff admitted his signatures on the compromise. The said compromise was submitted in the court in the previous suit and statement of the plaintiff was also recorded in the previous suit regarding said compromise. Consequently, it cannot be said that the said compromise was result of fraud, misrepresentation, collusion or pressure etc. Plaintiff's claim in this regard is completely frivolous and untenable. The plaintiff rather admitted that statements of the parties were recorded in the previous suit regarding the compromise and the parties were identified by their counsel. Thus it is manifest that the said compromise was legal and valid and was not result of fraud, collusion, misrepresentation, influence or pressure etc. Regular Second Appeal No.3155 of 2010 (O&M) -4- Apart from the above, compromise effected in the previous suit cannot be challenged by filing instant separate suit, in view of order 23 Rule 3 A of the Code of Civil Procedure. It 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. Consequently, the compromise effected in the previous suit cannot be challenged by filing the instant separate suit in view of aforesaid mandatory provision. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below against the plaintiff- appellant is fully justified by the evidence on record. The entire claim of the plaintiff is frivolous and merit less and so is the instant second appeal. Finding recorded by the courts below is not perverse or illegal nor based on misreading or mis-appreciation of the evidence. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 5th April, 2011 'raj'