IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 440 of 1999. Date of decision: March 29, 2010. Chet Ram ….. Appellant. Vs. Inder Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Vinay Thakur, Advocate. For the Respondents : Mr. Sanjeev Sood, Advocate vice Mr. K.D.Sood, Advocate, for respondents No. 1 & 2. Kuldip Singh, Judge (Oral). The defendant No. 2 is in appeal against the judgement, decree dated 1.9.1999 passed by learned District Judge, Shimla in Civil Appeal No. 48/S/13 of 1996 affirming the judgement, decree dated 25.6.1996 passed by learned Sub Judge Ist Class (1), Rohru in Civil Suit No. 178/1 of 1990. 2. The facts in brief are that respondents No. 1 and 2 had filed a suit for declaration and permanent prohibitory injunction to the effect that gift-deed No. 6 of 1990 dated 21.7.1990 with respect to khasra Nos. 1327, 1343 and 1449, Chak Sharontha, Tehsil Rohru, District Shimla is illegal, null and void in view of private partition, which took place between the parties on 18.1.1986. The mutation Whether the reporters of the local papers may be allowed to see the Judgment? …2… No. 51 dated 27.8.1990 based upon gift deed executed by Nazar Mal in favour of appellant was also challenged. The respondents No. 1 and 2 have claimed the suit property to be the separate property on the basis of family partition, which took place on 18.1.1986. In the suit, consequential relief of permanent prohibitory injunction was also prayed. 3. The suit was contested by Nazar Mal and the appellant. They took preliminary objections of valuation of the suit, jurisdiction, estoppel, non-joinder of necessary parties. On merits, they denied the family partition. It was pleaded that suit property was in exclusive ownership and possession of Nazar Mal, who had alienated in favour of appellant. The appellant has claimed ownership and possession over the suit land on the basis of transfer made by Nazar Mal in his favour. The respondents No. 1, 2 filed replication and reiterated their stand, which was taken by them in the plaint. 4. The evidence of plaintiff was recorded. On 27.12.1994, Sh. M.K.Sharma, Advocate, was appointed as Local Commissioner to record the statement of defendant No. 1 Nazar Mal on 8.1.1995. It is the case of respondents No. 1, 2 that on 8.1.1995, the suit was compromised vide Ext. AW 1/A. The respondents No. 1 and 2 filed an application dated 25.3.1995 under Order 23 Rule 3 read with Section 151 CPC for deciding the suit in terms of the compromise dated 8.1.1995. This application was contested and the learned Sub Judge has allowed the application on 25.6.1996 filed under Order 23 Rule 3 CPC and decreed the suit in terms of the compromise dated 8.1.1995 Ex. AW 1/A. It was held that …3… compromise Ex. AW 1/A and partition Ex. PW 4/A shall form part of decree. The decision dated 25.6.1996 was assailed before the learned District Judge, who dismissed the appeal on 1.9.1999. The defendant No. 2 has come in second appeal against the judgement, decree dated 1.9.1999, which has been admitted on the following substantial question of law:- Whether the impugned judgement and decree are vitiated because it is based on compromise Ext. AW 1/A which is not shown to have been lawfully executed and arrived at?. 5. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that Local Commissioner was appointed to record the statement of Nazar Mal, who was aged and not keeping good health but Local Commissioner exceeded his brief and allegedly prepared the compromise Ex. AW 1/A. It has been submitted that no compromise Ex. AW 1/A was executed by Nazar Mal and Chet Ram appellant. He has submitted that the suit has been disposed of on the basis of compromise Ex. AW 1/A but execution of Ex. AW 1/A has not been established, therefore, the impugned judgement, decree are liable to be set aside. The learned counsel appearing on behalf of the respondents has supported the impugned judgement and decree. 6. Ex. AW 1/A is the report prepared by AW 4 M.K. Sharma, Advocate. The compromise dated 8.1.1995 was attached with Ex. AW 1/A. AW 4 M.K.Sharma, Advocate, in his statement has stated that he was appointed as Local Commissioner. On 8.1.1995 he visited the spot. The parties represented that they have settled the matter and on their instructions he prepared compromise Ex. AW …4… 1/A, which was signed by the parties, their Advocates. He has specifically stated that Inder Singh, Sumitra Devi, Nazar Mal, Chet Ram, Gobardhan Singh President, Diwan Chand, Dilip Kapta and S.S. Desta singed the compromise in his presence. He has identified his signatures at point-A on Ex. AW 4/A. He was cross-examined. The tenor of cross-examination of this witness indicates that nothing was imputed to this witness for preparing compromise Ex. AW 1/A. It was not suggested to him that he favoured any party. There is nothing in the statement of AW 4 that compromise Ex. AW 1/A was not signed by the parties or their Advocates. In the end, rather suggestion has been given to this witness that signatures of Nazar Mal were obtained by sending the papers to him, which the witness has denied. As per statement of this witness, Nazar Mal was present on the spot, but the suggestion given to this witness indicates that even the signatures of Nazar Mal have been admitted on Ex. AW 1/A by the appellant. 7. The learned counsel for the appellant has failed to point out any illegality in the compromise Ex. AW 1/A. The submission of the learned counsel for the appellant that Local Commission has exceeded his brief when he recorded the compromise is noticed only to be rejected. The alleged exceeding of the brief by the Local Commissioner has nothing to do with the legality of the compromise Ex. AW 1/A, which has been established on record. The learned counsel for the appellant has submitted that RSA No. 199 of 1994 was also filed by Nazar Mal against the judgement, decree dated 26.4.1994 in this court, but he has failed to point out bearing of …5… litigation involved in RSA No. 199 of 1994 in the present appeal. The two courts below have recorded a finding of fact that compromise was validly executed. The learned counsel for the appellant has failed to make out a case for interference. Therefore, the aforesaid substantial question of law is decided against the appellant. 8. No other point was urged. 9. As a result of above discussion, the appeal fails and is accordingly dismissed. March 29, 2010. ( Kuldip Singh ), (Hem) Judge.