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2002 DIGILAW 1974 (RAJ)

Shaitan Singh v. Chhitar

2002-12-23

B.B.MOHANTY

body2002
MOHANTY, Member – This second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (hereinafter to be referred as `the Act) is directed against the judgment & decree 26.4.94 passed by learned Revenue Appellate Authority, Jaipur in appeal No. 2046/86 whereby first appellate court set aside the judgment dated 26.8.68 and decree dated 31.3.86 passed by learned Assistant Collector-1st, Jaipur in suit No. 22/68. (2). The facts of the appeal are short & simple and can be recapitulated within a narrow compass. Shri Jhuntha Ram S/o Dhanna Lal (father of respondents No. 1 & 2) filed a suit for permanent injunction under Sec. 188 of the Act in respect of agricultural land bearing khasra No. 423 measuring 2 bighas & 3 biswas of village Khora Shyamdas, tehsil Amer, district Jaipur against Nanu Singh, Narain Singh, Moti Singh, Durjan Singh, (sons of Roop Singh), Gulab Singh S/o Takhat Singh and Ganga Ram S/o Mahadev, in which a compromise dated 26.7.68 between the parties was submitted and attested on 26.8.68. (3). Learned trial court vide its order dated 26.8.68 decreed the suit as per terms of compromise; according to which, 1/4th share of total 66 bighas 5 biswas land of khasra Numbers 419, 420, 421, 423 to 428, 444, 962, 963, 964, 413/992 and 415/995 was to be given to Nanu Singh S/o Roop Singh. Although the order was passed on 26.8.68, the decree was framed on 31.3.86. (4). Feeling aggrieved by the above mentioned judgment & decree of learned trial court, Chhitar filed an appeal before the learned Revenue Appellate Authority, Jaipur on 27.5.86 within limitation from the date of framing of the decree on 31.3.86 which was accepted by first appellate court vide its impugned judgment & decree dated 26.4.94. Hence, this second appeal. Heard the parties and perused the record. (5). Learned counsel for the appellants has attacked the impugned judgment & decree on the ground that the appellants who were khatedars in possession were not impleaded as parties in the appeal and alleged that the judgment & decree was liable to be set aside on the defect of non-joinder of necessary parties and having been passed against the principle of natural justice. He further submitted that time-barred appeal was filed after an inordinate delay of 18 years without exhibiting any sufficient cause for condonation of the same. He further submitted that time-barred appeal was filed after an inordinate delay of 18 years without exhibiting any sufficient cause for condonation of the same. Moreover, after the 1976 amendment in CPC, the appeal could have been submitted even without a copy of the decree and in such cases, the last part of the judgment operated as decree. The learned counsel for the appellants continued to argue that in the event of illegal compromise, a separate suit should have been filed to question the legality & validity of the compromise. (6). Per contra, learned counsel for the respondents has submitted that a two-lined non-speaking order dated 26.8.68 was recorded by learned trial court on order sheet alone and no separate judgment was written. If did not contain a concise statement of the facts of the case, the points for determination and the reasoned decision thereon as is required under sub-clause 2 of rule 4 of order 20 CPC. Such an order does not amount to a judgment and has no legal sanctity. He further contended that when order passed does not amount to a judgment, the appeal filed against such order within limitation from the date of preparation of the decree even after 18 years is not time-barred. If will be deemed to have been submitted within limitation. Learned counsel has relied upon the law laid down in 1992 RRD page 601 in order to substantiate his above mentioned contentions. (7). While answering the allegation of non-impleadment of present appellants as parties in the appeal before the learned R.A.A., learned counsel for the respondents submitted that as per settled law : ``Nobody can pass better title than he himself has. In the instant case, when Nanu Singh himself did not acquire any khatedari rights by order dated 26.8.68 not amounting to judgment, subsequent transferees including the present appellants too did not acquire any right, title on interest in the land in question and cannot be considered to be necessary parties. The absence of the appellants will not vitiate the impugned judgment & decree. (8). While dealing with the alleged illegal compromise between the parties to the suit, learned counsel for the respondents has alleged that the suit was filed pertaining to only khasra No. 423 whereas the compromise incorporated 66 bighas 5 biswas land of khasra Nos. The absence of the appellants will not vitiate the impugned judgment & decree. (8). While dealing with the alleged illegal compromise between the parties to the suit, learned counsel for the respondents has alleged that the suit was filed pertaining to only khasra No. 423 whereas the compromise incorporated 66 bighas 5 biswas land of khasra Nos. 419, 420, 421, 423 to 428, 444, 962, 963, 964, 413/992 and 415/995 which in fact was not the subject matter of the suit and no consent decree could be passed on the basis of such illegal compromise. Learned trial court was bound to examine the legality and validity of the compromise, which he failed to do. Moreover, after the amendment in the year 1976, a proviso has been added to rule 3 of order 23 CPC and a party can either file a petition before the same court or can appeal under Sec. 96(1) to question the legality and validity of the compromise in view of rule 1-A if order 43 CPC. A separate suit cannot be filed as alleged by the counsel for the appellants. He has relied upon 1996 DNJ (Raj.) page 1. (9). We have given our thoughtful considerations to the rival submissions made of the bar and gone through the record. (10). A bare reading of the order dated 26.8.68 reveals that a two lined non-speaking order without any concise statement of facts, issues for determination and a reasoned decision thereon was recorded on the order-sheet alone and no separate judgment was written. Such an order has no legal sanctity and does not amount to a judgment. It is no judgment in the eyes of law and we are in full agreement with the submission made by learned counsel for the respondents that limitation to file appeal against such order shall start to run from the preparation of the decree, however late it may be. In the case in hand, the decree was prepared on 31.3.86 and the appeal filed on 27.5.86 was well within limitation. We base our decision on law did down in 1992 RRD page 601. Thus, the allegation of time-barred appeal of learned counsel for the appellants has no force and is not tenable. (11). In the case in hand, the decree was prepared on 31.3.86 and the appeal filed on 27.5.86 was well within limitation. We base our decision on law did down in 1992 RRD page 601. Thus, the allegation of time-barred appeal of learned counsel for the appellants has no force and is not tenable. (11). The alleged compromise attested on 26.8.68 by learned trial court cannot be held to be a legal & valid compromise looking to the fact that land mentioned therein was not the subject matter of the suit and learned trial Court had exceeded its jurisdiction by passing consent decree on the basis of such illegal compromise, which was not possible. Moreover, learned trial Court failed to exercise its duties to examine the validity & legality of the compromise. A thorough study of order 23 rule 3 CPC shows that after the amendment in 1976, an aggrieved party can either file petition before the same court or seek the remedy of appeal in order to question the legality & validity of compromise, but no separate suit is maintainable as has been held in 1996 DNJ (Rajasthan) page 1. Thus, the submission of learned counsel for the appellants for a separate suit is also liable to be rejected. (12). So far as the issue of non-impleadment of appellants as parties in the appeal is concerned, we are of the candid view that when Nanu Singh himself did not acquire any right, title or interest in the land in question on the basis of the order dated 26.8.68 which did not amount to a judgment, how can subsequent transferees including present appellants can claim any such right in the land so transferred in their favour ? We fully agree with the contention of the counsel for the respondents that ``No-one can transfer better title than he himself has. Thus, the non- impleadment of appellants in the appeal will not vitiate the impugned judgment & decree passed by learned R.A.A. (13). As a result of aforesaid discussions, we find no force in the appeal. Consequently, the judgment & decree dated 26.4.94 of learned Revenue Appellate Authority, Jaipur is upheld & sustained, and second appeal is hereby rejected. Pronounced in open court.