SUPREME COURT OF INDIA
Ajad Singh @ Ajad
Vs.
Chatra
C.A.No.1211 of 2005
(R.C.Lahoti CJI. and G.P.Mathur JJ.)
14.02.2005
P.P. Naolekar, J.
1. Leave granted.
2. The appellant Ajad Singh has filed a suit for declaration and possession of
his right, title and interest over the suit property along with Dilawar Singh @
Dilbag Singh Silak Ram - proforma respondents Nos.4 and 5 and for mandatory
Injunction against respondent Nos.1, 2 and 3 for removal of superstructures
raised by them over the suit lands and for restraining them from interfering
with the possession of the appellant. The case of the plaintiff/appellant is
that he and respondent Nos.4 and 5 are real brothers and the property in suit
came to them in partition effected between them and their uncle Puran. The
respondent Nos.1, 2 and 3 have encroached upon the suit lands on 2.1.85 by
storing some pucca bricks on the suit land and thereafter have raised some construction
over it. The defendant-respondents have not vacated the land in spite of demand
by the plaintiff-appellant. The defendants/respondents Nos.1, 2 and 3, filed
their written statements denying the right, title and interest of the appellant
over the suit land and claimed that they were in possession of the suit land
for the last 60 years which had ripened into ownership by way of adverse
possession and the construction made over the land was in exercise of that
right. It was further alleged that appellants as well as respondent Nos. 4 and
5 had admitted the possession of respondent Nos.1, 2 and 3 of the suit property
vide compromise dated 14.10.1985 and thus appellant was prevented by his acts
and conduct to pursue the present suit.
3. The trial court appointed a Commissioner for inspection of the suit site and
record the evidence of the parties. On the appreciation of the evidence led by
the parties and the report of the Commissioner, the trial court decreed the
suit filed by the appellant. Aggrieved by the said decree, respondent Nos.1 2
and 3 filed an appeal which was heard by the Additional District Judge,
Panipat. The First Appellate Court reversed the decree by placing reliance on
the compromise (Exhibit - D1) dated 14.10.1985 which was said to have been
effected between the parties in the police station. In paragraph 9 of the
Judgment, the Court has held that the compromise (Exhibit - D1) dated
14.10.1985 is a very relevant piece of evidence which admittedly has been
signed by Ajad Singh but about which no such plea has been raised by the
appellant either in the amended plaint or in the replication filed by him on
4.6.1987 as would enable him to avoid the compromise. There is also no pleading
from the plaintiff-appellant's side that the said compromise (Exhibit - D1) was
obtained by the police forcibly. He has not stated anything about the
compromise in his examination-in-chief and only in the cross-examination he has
stated that the compromise was effected by use of force in the police station. On
perusal of the compromise, the Court has further held that both the sides have
resolved the dispute and respondent No.1 could remain in possession of suit
property, as, according to the compromise, the appellant has already
relinquished the right over the site in dispute on 14.10.1985 (Exhibit - D1)
itself. Thus, it is made out that the trial court has wrongly rejected the said
compromise (Exhibit-D1) by observing that no such permission was obtained to
effect the compromise in the police station. The Court further summarized the
effect of compromise that the appellant has relinquished his right in the suit
land in view of the settlement (Exhibit - D1) dated 14.10.1985 itself and about
which he remained mum and knowingly concealed this fact in the pleadings. Thus,
after the examination of the said compromise (Exhibit - D1), it is made out
that the plaintiff-appellant agreed to withdraw the suit and conceded that
Chatra, the defendant No.1 shall continue to remain in possession of the suit
property. On these findings the judgment and decree of the trial court was set
aside and the so-called compromise (Exhibit - D1) was held to be binding on the
parties.
4. The appellant preferred a second appeal before the High Court which was
dismissed in limine. The High Court has reproduced paragraphs 8 and 9 of the
judgment of the lower appellate court and concurred therewith dismissing
expressing an opinion that the reason given by the first appellate court for
dismissing the suit are much weighty, as compared to the reasons given by the
trial court which committed patent illegality in decreeing the suit.
5. In this petition seeking leave to appeal preferred by the appellant before
this Court, a notice, limited to the question as to why the matter be not
remanded back to the first appellate court for decision afresh, was issued.
6. We have heard the learned counsel for the parties and we are satisfied that
the case deserves to be remanded to the first appellate court for the reasons
stated hereinafter. The High Court as well as the first appellate court have
not adverted to the various relevant and important aspects of the case while
deciding the matter. And, this we say for the several reasons which follow.
First, the provision contained in Order 23 Rule 3 of the CPC has been
completely overlooked. The date on which the compromise (Exhibit - D1) is
alleged in the written statement to have been entered into between the parties,
the suit relating to the property forming the subject matter of the compromise
was pending in the Court. The suit could not have been disposed of except
by recording the compromise and that too by following the procedure, and
recording the satisfaction, contemplated by Rule 3 of Order 23 of the CPC.
Secondly, the first appellate court was not justified in observing that the
plaintiff had not raised necessary pleadings either in the plaint or in the
replication disputing the factum and legality of the compromise. From a perusal
of the written statement, we find that necessary pleadings satisfying the
requirement of Order 23 Rule 3 of the CPC have not been raised in the written
statement. The written statement makes only a bald reference to the said
compromise dated 14.10.1985. The plaintiff can be safely assumed to have denied
all the averments made in the written statement. Also, we find from the
judgment dated 5.10.1985 of the trial court that no specific issue was framed
on the pleading raised by the defendant regarding the said compromise dated
14.10.1985. The appellate court ought to have taken note of the fact that the
said compromise was recorded in the police station and during the pendency of
the suit. Thirdly, the first appellate court ought to have been conscious of
the fact that the said compromise is on a plain piece of paper, and so, whether
such document was required to be stamped or registered or not? Be that as it
may, in our opinion, the very fact that the courts below have overlooked the
provisions of Order 23 Rule 3 of the CPC is sufficient to vitiate the judgment
and the matter needs to be remanded for consideration afresh.
7. The appeal is allowed. The order dated 26.9.2001 of the High Court
dismissing the second appeal in limine as well as the judgment and decree
passed by the first appellate court are set aside. The first appeal being Civil
Appeal No.376 of 1999 shall stand restored and is remitted to District Judge,
Panipat for re-hearing and deciding it afresh either by himself or assigning it
to a Court competent to hear it.
8. No order as to the costs.