Ajad
Singh @ Ajad Vs. Chatra & Ors [2005] Insc 102 (14 February 2005)
Cji,G.P.
Mathur & P.P. Naolekar
(arising
out of SLP (C) No. 3884 of 2002) P.P. Naolekar, J
Leave
granted.
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 and 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.
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.
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.
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.
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.
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.
No
order as to the costs.
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