IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 29 of 1998 Date of Decision: 14th July, 2008 Barfi Devi and others Appellants Versus Anant Ram and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr.Sanjeev Kuthiala, Advocate. For the respondents 1&2: Mr.G.D.Verma, Sr. Advocate, with Mr. B.C.Verma, Advocate. Sanjay Karol, J. (Oral) The present appeal arises out of the judgment and decree dated 6.11.1997 passed by District Judge, Bilaspur, H.P. in Civil Appeal No. 48 of 1989 recording the compromise and consent of the contesting parties. Shri Kirpu Ram son of Shri Pohlo Ram, as plaintiff (original appellant herein), filed Civil Suit No.132-1 of 1985 against Shri Anant Ram and Shri Mathura Dass as defendants No.1 and 2 (respondents No. 1 and 2 herein) and Smt.Durgi, Shri Rajinder Parshad, Shri Dhian Singh, Shri Suresh Kumar, Smt. Kartari Devi, Smt. Sheela Devi and Smt. Asha Devi, as defendants No.3 to 9 (proforma respondents 3 to 9 herein). Whether the reporters of Local Papers are allowed to see the Judgment? 2 The suit land comprised in Khasra No. 2, 4, 5, 11, 14 and 15 total measuring 21-9 Bighas, situated in Village Barota, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the suit land). A declaration was sought to the effect that the plaintiff had become the owner of the suit land by virtue of gift deed executed by Smt. Parwatu (predecessor in interest of the plaintiff) and in the alternative by way of adverse possession. In the suit, the relief was sought against defendants No.1 and 2 only. Importantly, except for the fact that the names of defendants No.3 to 9 find mention in the memo of parties, there is no mention in the body of the plaint as to why they have been arrayed as parties nor has any relief been claimed against them in the suit. The said defendants also chose not to contest the suit and defendants No.4 and 6, defendants No.3 and 5 and defendants No.7 to 9 were proceeded against ex parte on 25.9.1985, 8.1.1986 and 4.2.1987, respectively. The contesting defendants No.1 and 2 resisted the suit and based on the pleadings of the parties the trial Court framed the following issues :- “1. Whether the plaintiff is owner in possession over the suit land as alleged? OPP. 2. If plaintiff has failed to prove ownership whether the plaintiff has become owner by way of adverse possession over the suit land, as alleged? OPP. 3. Whether the defendants are interfering over the suit land as alleged? OPP. 4. Whether the suit is not maintainable as alleged? OPD 5. Whether the suit is bad for non joinder of necessary parties, as alleged? OPD. 3 6. Whether the plaintiff is estopped to file the suit as alleged? OPD. 7. Whether the suit is barred by principle of res judicata? OPD. 8. Whether the suit is not properly valued as alleged? OPD. 9. Whether the court has no jurisdiction, as alleged? OPD. 10. Relief.” Appreciating the evidence (oral and documentary) led by the parties, the trial Court decreed the plaintiff’s suit holding that the plaintiff had perfected its ownership by virtue of adverse possession over the suit land and the defendants were restrained permanently from interfering with the same. The plea of plaintiff having become owner by virtue of gift deed was, however, not accepted by the Court. The judgment and decree dated 29.4.1989 passed by Sub Judge Ist Class, Ghumarwin, District Bilaspur, H.P. was assailed by the contesting defendants by way of Civil Appeal No. 48 of 1989, before the District Judge, Bilaspur, H.P. Defendants No. 3 to 9 did not contest the appeal as defendants No. 3 to 6, defendant No.8, defendant No. 7 and defendant No.9, were proceeded against ex parte on 24.10.1989, 8.8.1990, 13.9.1991 and 31.10.1992, respectively. At the time of hearing of the appeal, the matter was compromised between the contesting parties when on 16.10.1997, statement of defendant No.2 Shri Mathura Dass, on oath, was recorded to the effect that he and his brother Anant Ram shall give 5-7 Bighas of land out of the estate of Smt. Parwatu to respondent No.1 Shri Kirpu Ram (plaintiff), who 4 shall become the absolute owner thereof and the possession of the same shall also be handed over to him. A request was made that appeal be disposed of in view of the said statement. Statement of Shri Kirpu Ram, on oath, was also recorded separately whereby he admitted having heard the statement of Shri Mathura Dass to be correct and further requested that the appeal be disposed of in terms of the said statement. The statements were signed not only by the parties but also their counsel. Acting on the said statements made by the parties, the appeal was disposed of by the District Judge, Bilaspur, H.P. on 6.11.1997 with the following order:- “During the course of arguments, the plaintiff has agreed to give 5-7 Bighas of land to defendants No.1 and 2 from his total share i.e. 21-9 Bighas (1/3rd share which he inherited from his father Shri Pohlo and 1/3rd share which he is claiming through gift-deed executed by Shri Harbhaj and Smt. Parvatu). The defendants have agreed to accept 5-7 Bighas of land as per their statements recorded and the statement of respondent No.1 Shri Kirpu Ram recorded separately and placed on Court file. In view of the settlement arrived at in between the parties, respondent No.1 Shri Kirpu Ram has consented to part with 5-7 Bighas of land which he will give to defendants No.1 and 2 and get the necessary entries incorporated in the revenue record in favour of defendants No.1 and 2, now appellants. Accordingly, the point is answered. In view of my findings on point No.1 above, the present appeal is partly allowed and the judgment and decree, passed by the learned trial Court is modified to the extent that Shri Kirpu Ram, plaintiff is owner in possession of the suit property, who will give 5-7 Bighas of land from his total share i.e. 21-9 Bighas, comprised in Khasra Nos. 2, 4, 5, 11, 14 and 15 and get the revenue entries incorporated in favour 5 of defendants No.1 and 2. Decree sheet be prepared accordingly.” (Emphasis supplied) Challenging the said consent decree, the present appeal was admitted on the following substantial questions of law:- “1. Whether the court below had jurisdiction conferred upon it by the statement of some of the parties to the lis, and the same could bind all the parties, not consenting the alleged terms? 2. Whether the statement of plaintiff Kirpu and defendant No.1 has been read in its proper perspective, and could form the basis of the judgment? 3. Whether the learned court below could alter the consent decree, contrary to the agreement of parties and the terms regarding the major consideration? 4. Whether a compromise effecting the rights of a person not party to it could be considered lawful and decree passed thereon is liable to be set aside? 5. Whether the statement made inter se some of the parties could satisfy the ingredients of Order 23 Rule 3, CPC making it the basis of decision?” Even in the present appeal, plaintiff himself has arrayed defendants No. 3 to 9 as proforma respondents, who were served on different dates but have chosen not to contest the appeal. It is evident that at no stage, the said respondents participated in the proceedings before any Court. Mr. Kuthiala, learned counsel for the appellants has argued that the appeal against a consent decree is maintainable for the reason that no lawful compromise as stipulated under the provisions of Order 23 Rule 3, CPC was entered into between the parties. According to him, neither the 6 Court below has recorded its satisfaction nor is the compromise recorded in writing and signed by the parties. It is also his contention that the compromise is not binding and effective as all the parties to the lis were not party to the compromise. He has referred to and relied upon para 9 of a decision of the Apex Court reported in Gurpreet Singh vs. Chatur Bhuj Goel, AIR 1988 SC 400 to press his contentions. In response, Mr. G.D.Verma, learned senior counsel for the contesting respondents has referred to the decision rendered by the Supreme Court in Pushpa Devi Bhagat (D) by LR v. Rajinder Singh and Ors, AIR 2006 SC 2628, Byram Pestoni Gariwala vs Union Bank of India and others, (1992) 1 SCC 31, Jineshwardas (D) by LRs and others vs. Jagrani (Smt.) and another, (2003) 11 SCC 372 to contend that with the recording of the statements of the parties or their counsel signing the same, the requirements of Order 23 Rule 3, CPC were fully met and, therefore, the appeal against the consent decree is not maintainable. I have heard the learned counsel for the parties and also perused the record. From the statements of Shri Mathura Dass and Shri Kirpu Ram, recorded on oath, separately on the file of the first Appellate Court, it is clear that the parties had intended to compromise the matter. Shri Mathura Dass, defendant No.2 on behalf of his brother defendants No.1 and also on his behalf had agreed to part with 5-7 Bighas of land from the estate of Smt. Parwatu in favour of Shri Kirpu Ram. Shri Kirpu Ram on oath accepted the statement to be correct and requested the appeal be disposed of as such. The said statements were duly signed by the counsel appearing for the parties. 7 In Pushpa Devi Bhagat (supra) after considering the earlier view taken by the Court in Byram Pestoni Gariwala [(1992) 1 SCC 31]; Jineshwardas [(2003) 11 SCC 372] and Chatur Bhuj Goel {(1988) 1 SCC 270 : AIR 1988 SC 400], the Court came to the conclusion that the requirements of Order 23 Rule 3, CPC would be fully met if the statement of the parties or their counsel formed part of the record in writing as the same would constitute a compromise. The Court distinguished the ratio of law laid down in its earlier decision in Chatur Bhuj Goel (supra) and found that in that case there was no compromise but mere proposals of settlement, which did not constitute a compromise/settlement. However, in the present case, it is evident from the record that the parties had compromised the matter and, therefore, reliance by the learned counsel for the appellant on para 9 of the aforesaid judgment is misconceived. It is clear that Shri Mathura Dass had made the statement on behalf of his brother Shri Anant Ram. Be that as it may be the fact of the matter is that even the counsel appearing for Shri Anant Ram also signed the statement recorded in the Court. Shri Anant Ram has not challenged the statement made by Shri Mathura Dass. The statement was recorded by the learned Judge in the presence of the learned counsel appearing for the parties. It is not the case of the appellants that recording of the statements is by an act of misrepresentation, fraud or coercion. In the present case, the Authority of the counsel has not been assailed. The statements were recorded on oath in the presence of the counsel, who also signed the same. The Court had applied its mind and, thereafter had recorded the compromise. Therefore, it cannot be said that the Court was not satisfied about the compromise [Amteshwar Anand v. Virender Mohan Singh and others, AIR 2006 SC 151]. 8 It is true that all the parties to the lis were not party to the compromise. From the plaint, it is not clear that as to why the uncontesting defendants were arrayed as parties. Except for their reference in the memo of parties, there is no narration about them in the plaint. From the body of the plaint, it is clear that contest is between the plaintiff and defendants No.1 and 2, even the relief has been prayed against the said defendants and the decree by the trial Court was passed against them. The uncontesting defendants chose not to participate and contest the suit or the appeals at any point in time. Even here the plaintiff has arrayed them as proforma defendants-respondents. It was the plaintiff’s own case that defendants No.1 and 2 had no right in the suit as Smt. Parwatu had left a registered gift in his favour and in the alternative he had perfected his title by way of adverse possession. In this view of the matter, it cannot be said that the compromise could not have been effected in the absence of uncontesting parties to the lis. The compromise being valid the consent decree is binding on the parties to the compromise. From paras 11 and 12, the operative part of the judgment, however, it is evident that a typographic error has crept in. The appeal was admitted in the year 1998 and it would not be in the interest of justice nor the parties to remand the matter back or direct the parties to file an application for modification/review at such a belated stage. The statement of the parties recorded by the Court is to the effect that defendants No.1 and 2 are ready to give 5-7 Bighas of land to the plaintiff. While passing the judgment and decree, the Court, however, has referred defendants No.1 and 2 to be the plaintiff and the plaintiff to be defendants No.1 and 2. The Court has decreed that the plaintiff being owner in possession of the suit land shall give 5-7 Bighas of land to defendants No.1 and 2. This is contrary to the 9 compromise. Obviously, there is an error as the defendants were to give 5-7 Bighas of the suit land to the plaintiff, who was to be the absolute owner of the same. However, the Court below has not appreciated the statement of the parties in its proper perspective. The Court below could not have passed a decree, which was in contradiction to the consented terms agreed upon by the parties. Therefore, impugned judgment and decree is corrected to the following extent. The judgment and decree passed by the first appellate Court is corrected to the extent that Shri Kirpu Ram, plaintiff shall be the owner of 5-7 Bighas of suit land out of total land measuring 21-9 Bighas, comprised in Khasra Nos. 2, 4, 5, 11, 14 and 15, situated in Village Barota, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P., which shall be handed over by defendants No.1 and 2 in terms of statements of Shri Mathura Dass, defendant No.2 and Shri Kirpu Ram, plaintiff. The questions of law are answered accordingly. For the aforesaid reason, the present appeal is dismissed except for the aforesaid limited correction of the judgment and decree dated 6.11.1997. However, there shall be no order as to costs. 14th July, 2008 (Sanjay Karol), J. (C)