Case: TRILOKI NATH SINGH Vs. ANIRUDH SINGH(D) THR. LRS &amp; ORS

2. The seminal facts which are relevant for the present purpose and the circumstances in which it arises for our consideration are that the appellant-plaintiff filed suit before 4th sub-judge, Chapra seeking a declaration that the compromise decree dated 15 th September, 1994 passed in Second Appeal No. 495/86 by the High Court is illegal, inoperative and obtained by fraud and misrepresentation and also prayed for injunction against the respondents-defendants restraining them from entering into peaceful possession of the suit property3. The case in shorn of the appellant-plaintiff is that the land described in Schedule 1 of the plaint originally belonged to Lakhan Singh who died leaving behind three sons, namely, Din Dayal Singh, Jalim Singh and Kunjan Singh. Din Dayal Singh is said to have died issueless during lifetime of his father and his other brother, namely, Jalim Singh also died leaving behind a son Ram Nath Singh and two daughters Sampatiya and Soniya. As regards the third son Kunjan Singh, he is said to have died issueless but prior to his death he gifted the land of his share to Sampatiya on the basis of a gift deed dated 10 th July, 1978 which came on possession over her4. The further case of the appellant is that one Salehari wife of Satyanarayan Prasad claiming herself to be the daughter of late Kunjan Singh filed a partition suit 13/78 in the Court of Munsif, Chapra for setting aside the aforesaid gift and for partition of her share in the ancestral property. In that suit, Sampatiya, Dulari Devi, Ram Nath and Soniya were impleaded as party respondents- defendants. Ram Nath died during pendency of the proceedings and only Sampatiya contested the suit. It was further stated that suit was dismissed and it was held that Salehari was not the daughter of Kunjan Singh and have no right in the properties5. Salehari filed T.A. No. 19/84 which was dismissed on 7 th April, 1986. The further case is that a total of 3 Bigha 6 Katha 3 Dhurs was sold by Sampatiya to appellant-plaintiff for a sum of Rs. 25,000/- by a registered sale deed dated 6 th January, 1984 and put the appellant-plaintiff in possession over the suit property. In July, 1995, when respondents-defendants started making interference in possession of the suit property of the appellant-plaintiff and on query it revealed that it was claimed on the strength of a compromise decree entered between Sampatiya and Salehari which was filed in second appeal before the High Court of Patna6. The case of the appellant-plaintiff is that the said compromise decree was obtained by fraud and misrepresentation concealing the salient fact from the High Court that the sale deed was executed much prior to the compromise being executed between the parties to the proceedings and as such the said compromise was liable to be declared to be void which was obtained by fraud and misrepresentation7. The respondents-defendants contested the suit on the ground that the suit was not maintainable. It was also alleged that the suit was hit by the provisions of Section 34 of the Specific Relief Act and Order 23 Rule 3A Code of Civil Procedure(hereinafter being referred to as CPC). It also urged that the appellant-plaintiff has no right to file the suit in the Court of Sub-Judge rather he ought to have filed an application before the High Court which passed the compromise decree and the appellant-plaintiff has no right to seek relief of injunction. That apart, it was stated to be barred by Section 52 of Transfer of Property Act. The specific plea of the respondents-defendants in the written statement was that Kunjan Singh has not died issueless rather he had a daughter namely Salehari being his sole heir. It was also denied that he had executed a deed of gift in favour of Sampatiya and has delivered possession of the gifted land to her. It was, however, conceded that Salehari filed a partition suit no. 13/79 in which she lost, whereafter she filed First Appeal No. 19/84 which was dismissed. In Second Appeal No. 495/86 before the High Court, at her instance, a compromise was executed between the parties and accordingly, the compromise decree was passed by the High Court dated 15 th September, 1994. The extract of the terms of compromise is reproduced ad infra:-That the said compromise has been reached on following terms and conditions:(i) That the respondent no. 1(Sampatiya D/o Late Jalim Singh) accepts that the plaintiff-appellant Salehari Devi is the daughter of Kunjan Mahto(ii) That respondent no. 1 accepts the alleged deed of gift dated 10.7.1987 executed by Kunjan Mahto in favour of respondent no. 1 is illegal, void and in-operative and that respondent no. 1 derived neither title nor possession on account of the said deed of gift(iii) That it is accepted by the respondent no. 1 that the plaintiff appellant Salehari Devi after the death of her father Kunjan Mahto came in possession of his properties as she was the sole surviving legal heir of her father,(iv) That the plaintiff-appellant accepts that she has got only half share in the entire suit properties and other half share belongs to respondent no. 1 Sampatiya Devi(v) That to remove vagueness as to which suit properties will go to whose share, it is made clear that schedule-I property of the plaint which is made annexure-1 containing exhaustive details of properties will go to the share of plaintiff appellant and the rest of the suit properties as described in schedule-II of the plaint will go to the share of respondent no. 1,(vi) That according to their respective shares the appellant and respondent nos. 1 and 2 have come in possession thereof8. On the basis of pleadings of the parties, the learned trial Judge in all framed 9 issues. The same are reproduced as under:-1. Is the plaintiff got any valid cause of action?2. Is the suit as framed maintainable?3. Is the Court fee paid sufficient?4. Is the suit barred by limitation?5. Is the suit u/s 34 S.R. Act6. Is the compromise dated 30 th May, 1994 and order dated 15 th September, 1994 in 2 nd appeal 495/95 of the Honble High Court is illegal, inoperative and inaffective due to fraud7. Is the plaintiff got right, title and interest in the suit property?8. Is the plaintiff entitle for decree as claimed9. To what over relief and reliefts plaintiff to?9. It is relevant to notice that issue nos. 4 & 5 were not pressed and rest of the issues were decided against the appellant-plaintiff after due appreciation of the evidence on record on merits by the trial Judge by its judgment and decree dated 31 st July, 1998 which was challenged by the appellant-plaintiff in appeal before the learned District Judge in Title Appeal No. 80/98(3/99). On due appreciation of evidence on record, the appeal came to be dismissed by the Court of Appeal by its judgment dated 5 th May, 2003 that came to be challenged by the appellant in Second Appeal No. 153 of 2003 before the High Court which came to be dismissed at the motion stage by judgment dated 20 th April, 2009 which is a subject matter in appeal before us.

Reasoning: 19. Thus, after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23 CPC. As such, a right has been given under Rule 1A(2) of Order 43 to a party, who denies the compromise and invites order of the Court in that regard in terms of proviso to Rule 3 of Order 23 CPC while preferring an appeal against the decree. Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute20. In the present case, the partition suit was filed in 1978 and after the decision of the trial Court, the matter went in first appeal and eventually, Second Appeal No. 495/86 before the High Court. During the pendency of first appeal being continuation of the suit as stated, one of the parties to the pending proceedings, namely, Sampatiya allegedly entered into a sale deed with the appellant on 6 th January, 1984. Indubitably the issue regarding right, title and interest in respect of the land which was the subject matter of sale deed dated 6 th January, 1984, was still inchoate and not finally decided. In that sense, the claim of the appellant was to be governed by the decision in favour of or against Sampatiya in the pending appeal. It must follow that the alleged transaction effected in favour of the appellant by a sale deed dated 6 th January, 1984 ought to abide by the outcome of the said proceedings which culminated with the compromise decree passed by the High Court in Second Appeal No. 495/86 dated 15 th September, 199421. Indeed, the appellant was not a party to the stated compromise decree. He was, however, claiming right, title and interest over the land referred to in the stated sale deed dated 6 th January, 1984, which was purchased by him from Sampatiya- judgment debtor and party to the suit. It is well settled that the compromise decree passed by the High Court in the second appeal would relate back to the date of institution of the suit between the parties thereto. In the suit now instituted by the appellant, at the best, he could seek relief against Sampatiya, but cannot be allowed to question the compromise decree passed by the High Court in the partition suit. In other words, the appellant could file a suit for protection of his right, title or interest devolved on the basis of the stated sale deed dated 6 th January, 1984, allegedly executed by one of the party(Sampatiya) to the proceedings in the partition suit, which could be examined independently by the Court on its own merits in accordance with law. The trial Court in any case would not be competent to adjudicate the grievance of the appellant herein in respect of the validity of compromise decree dated 15 th September, 1994 passed by the High Court in the partition suit22. In other words, the appellant can only claim through his predecessor- Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC. It must, therefore, follow that the suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment23. In the instant case, the suit was instituted in the year 1995 and 25 years have rolled by now and after the finding has been recorded in reference to issue no. 7 regarding the right, title and interest of the suit property against the appellant by the learned trial Judge devolved on the basis of a stated sale deed dated 6 th January, 1984 and not interfered by the Court of Appeal preferred at the instance of the appellant, in the given circumstances, remitting the matter back to the learned trial Court to examine the suit filed at the instance of the appellant-plaintiff independently for protection of his right, title or interest being devolved on the basis of the stated sale deed dated 6 th January, 1984 which as alleged to have been executed by one of the party to the compromise(Sampatiya) in the changed circumstances may not serve any purpose more so after the concurrent finding of Courts below have been recorded against the appellant-plaintiff.