Case: Hussainbhai Allarakhbhai Dariaya  Vs. State Of Gujarat

2. The appellants are aggrieved by the rejection of their application seeking permission to file a second appeal. The Samast Sunni Muslim Jamat, Damnagar (6th respondent herein, for short the `Jamat) represented by its Secretary filed a suit against respondents 1 to 5 in the court of the Civil Judge (Senior Division), Amreli (Regular Civil Suit No.240/1995) for a declaration that they are the owners in possession of land bearing old survey No.248, Damnagar. They also sought a permanent injunction restraining the fifth respondent Damnagar Gram Panchayat (now Damnagar Nagarpalika) from interfering with the right of the plaintiff to construct a compound wall/fencing around the Kabrastan. They also sought a direction to respondents 1 to 5 to remove any encroachments over the said Kabrastan land.3. After contest, the said suit was decreed in part by the Civil Judge, Senior Division, Amreli by judgment and decree dated 29.11.2003. The trial court declared that the plaintiff Jamat was the owner of plot Nos. 23, 24, 25,26 and 28 (described in the annexed order of District Development Officer dated 13.10.1977, canceling the auction of those plots) and granted a permanent injunction restraining the defendants from obstructing or interfering with the possession of the plaintiff Jamat. The trial court however rejected the claim of the plaintiff Jamat in regard to old survey No.248 in the absence of exact measurements and boundaries of the said land.4. Feeling aggrieved, the said Jamat filed an appeal before the Assistant District Judge, Amreli (Regular Civil Appeal No.67/2003). In the said appeal, the following pursis dated 3.8.2004 (Ex.17) was filed by the four trustees of the Jamatthe appellants submit the said pursis in this case and declare that :-(1) We, the appellants have filed the present appeal against the respondent. In the said appeal, the consent pursis and agreement has been made between the members of both community and the Panchayat in the decree of the trial court. Therefore, the appeal does not remain to be tried further. Therefore, we withdraw the appeal unconditionally.(2) The Grampanchayat Damnagar, villagers and the members of the community have to do and behave as per the compromise agreement herewith and carry out the agreement specifically and we withdraw the appealTherefore, we agree and declare by the pursis that the appeal may be disposed offsaid pursis also contained an endorsement by the Sarpanch and Secretary of Damnagar Grampanchayat confirming that they would not insist for any costs of the suit.5. The compromise agreement referred to in the said pursis dated 3.8.2004 was entered into between two groups of residents of Damnagar, namely the Samast Sunni Muslim Jamat as the leaders of the Muslim Samaj and the leaders of the Samast Hindu Samaj. The said compromise is extracted belowThe status quo which is obtained by Bavbhai Gajibhai Chudasama and others with respect to the land admeasuring 30,000 Sq.Feet, situated at the eastern side at Chhabhadia Road, allotted vide the Government Order to Shree Akshar Purshottam Swaminarayan Trust shall be withdrawn.(2) The land admeasuring 120m x 90 feet = 10,800 Sq. Feet situated after leaving the road from Dargah at the western side from the land allotted to the Trust, shall be left for the Sunni Muslim Jamat.(3) For the social activity no construction activity for constructing the houses by the Sunni Muslim Jamat shall be allowed. The land shall be left for open place.(4) Pursuant to the order of the Honourable Court from amongst the five plots, the present land is allotted.(5) Except the land admeasuring 10,800 Sq. Feet allotted to the Sunni Muslim Jamat, all the entire land shall remain of the Akshar Purshottam Trust.(6) With regard to the said land, now after any party from amongst both the party shall not raise any dispute before the Government Office or in the Court.(7) With regard to the land allotted to the Akshar Purshottam Trust any dispute which is raised previously and with reference to the said dispute any party shall give the consent in the Government Office or before the Court in respect of the point of Compromise.(8) The case which is proceeding in the Tribunal with reference to the land of the said Trust, for the same Bavjibhai Gajibhai Chudasama and Daudbhai R. Pathan shall withdraw the case.The said Agreement of Compromise is executed with aim to prevail peace and harmony in between the Hindu and Muslim and for maintaining Hindu Muslim unity for years to come and with an aim of avoiding any obstruction in the peace and harmony and the recent festival cannot be affected and for the larger interest of the future and which is executed by our consent and willingness and for the same we are putting our signaturesaid agreement was not a compromise petition between the plaintiffs and the defendants in the suit, or between the appellants and respondents in the appeal, but an agreement said to have been reached by the leaders of two communities, signed by 14 persons on behalf of the Sunni Jamat and 19 persons on behalf of the Hindu Samaj.6. On the said pursis dated 3.8.2004 (Ex.17) filed by the Jamat, the first appellate court made the following order dated 3.8.2004the parties present before the Court and have submitted the joint consent pursis. Moreover, the L.A. for the concerned party as well as Sarpanch and Secretary of Damnagar Gram Panchayat have also signed the consent pursis. Further more, the consent pursis has read over to the parties who have submitted one agreement along with the consent pursis is also read over to them and they have also admitted the facts of the agreement which is submitted along with the consent pursis and they have stated in their consent pursis that as per the agreement, the appeal should be disposed of and as per their contentions contained in the consent pursis and agreement, this application is hereby granted, with no order as toappeal was disposed of by the following order datedview of the consent pursis along with the agreement submitted by both the parties before this Court on 03-08-04 and have agreed to dispose of this appeal according to the consent pursis and agreement, have also agreed to draw the decree according to the agreement which has been submitted along with the consent pursis and, therefore, the consent pursis has been granted by this Court. So, this appeal is hereby disposed of according to the consent pursis at Exh. 17 along with the agreement and the decree is hereby drawn according to the agreement which submitted along with the consent pursis and hence, this appeal is hereby disposed of accordingly, with no order as to costs.The appellants who claimed to be the individual members of the Sunni Jamat, and who were not parties either to the suit or the first appeal, were aggrieved by the said compromise resulting in disposal of the first appeal as according to them, 30,000 sq. ft. of Kabrastan land had been unauthorisedly given to Akshar Purshottam Trust. According to appellants the Sunni Jamat had no legal authority to deal with or give away the Kabrastan (wakf) land for any purpose other than the use of Muslims in Damnagar. They therefore filed a second appeal before the Gujarat High Court challenging the order disposing of the first appeal. As they were not parties to the first appeal, they also filed an application seeking permission to file the appeal.8. A learned Single Judge of the High Court dismissed the application for permission to file the second appeal. Consequently the second appeal was also dismissed by order dated 13.10.2006. The High Court held that the Sunni Jamat had not filed a suit in a representative capacity under Order 1 Rule 8 of the Code of Civil Procedure (`Code for short); that it was not the contention of the appellants that the Secretary of the Sunni Jamat was not entitled or authorized to file a suit; that if the Secretary represented the interests of the members of the Jamat, then the suit was by a person authorized by the members of the Jamat and not by a person filing a suit in his representative capacity; that as the suit by the Secretary of the Jamat was not a representative suit either for purpose of section 92 or for the purpose of Order 1 Rule 8 of the Code, it cannot be taken to be a representative suit for the purpose of Order 23 Rule 3B of the Code; and that therefore the application seeking leave to file the second appeal and the second appeal by the appellants were not maintainable. The said judgment is challenged by the appellants in this appeal by special leave.

Reasoning:
14. The compromise alleged was not between the parties to the suit/appeal. As noticed above, the defendants/respondents were the State of Gujarat, the Mamlatdar of Lathi, Amreli District Panchayat, the Taluka Development Officer of Lathi and the Damnagar Gram Panchayat. None of them were parties to the compromise. Even the Jamat represented by the Secretary, was not a party to the compromise. The alleged compromise was between two groups, namely, 14 persons representing the Muslim community of Damnagar and 18 persons representing the Hindu community of Damnagar. Therefore, it cannot be said to be a compromise between the parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit. Where eithernts were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.15. The pursis (MemoEx.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise between two sets ofwhile dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise betweenas the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of anyas there is no appealable order or decree.