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2004 DIGILAW 214 (HP)

SUSHILA DEVI v. SOM DUTT

2004-09-06

R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.: This second appeal has been directed against the judgment and decree dated 6.12.2003 of the learned District Judge, Una, affirming the judgment and decree dated 20.6.1998 passed by the learned Sub Judge 1st Class (I), Una, in Civil Suit No. 74 of 1998. 2. The appellants before this Court are legal heirs of the original defendant No. 1 Baldev Chand. They are being jointly referred to as defendant No. 1 hereinafter. 3. Respondents No. 1 and 2 were the plaintiffs while respondents 3 and 4 were the performa defendants No. 2 and 3 before the learned trial Court. They are being hereinafter referred to accordingly. 4. The parties to the suit are real brothers being the sons of Parshotam Dass. They joint owned land measuring 151 Kanals 5 Marias in village Khad as detailed in the jamabandi for the year 1973-74. According to the plaintiffs a private partition took place between the parties on 4.6.1981 and as per such partition the plaintiffs became the owners and in possession of the lands falling to their respective shares as under:- (i) Plaintiff No. 1 Som Dutt. (a) Land measuring 11 Kanals 9 Marias comprised in khewat No. 75, Khatoni No. 409 and khasra No. R-64/29 located towards the eastern side on Una-Gagret road; (b) Land measuring 7 Kanals 11 Marias comprised in Khewt No. 2, Khatoni No. 918-919 and khasra No. R-61/6; (c) Land measuring 3 Kanals 7 Marias comprising of khewat No. 249, khatoni No. 918 and Khasra No. 2698; (d) Land measuring 2 Kanals 9 Marias towards northern side out of Khasra No. 1516 total measuring 8 Kanals 18 Marias; and (e) Land measuring 1 Kanal 2 marlas comprising of Khewat No. 843 min, Khatoni No. 2235 and khasra No. R-85/11/1. (ii) Plaintiff No. 2 Jagan Nath - (a) Land measuring one kanal out of 6 kanals 7 marlas comprising of khewat No. 249, Khatonj No. 218 and khasra No. R-64/11/1 adjoining khasra No. R-64/11/1, belonging to defendant No. 1 and abutting Una-Gagret road; (b) Land measuring 2 Kanals 16 Marias out of land measuring 7 Kanafs 16 marias in Khewat No. 551. Khatofri Na 1830 andkhasra No. 159; (c) Land measuring 1 Kanal 18 marias comprising of khasra No. R-53/24/1. Khatofri Na 1830 andkhasra No. 159; (c) Land measuring 1 Kanal 18 marias comprising of khasra No. R-53/24/1. (d) Land measuring 6 Kanals 11 Marias in Khasra No. R-60/3/2 of Khewat No. 249 and Khatoni No, 918; and (e) Land measuring 8 Kanals of Khewat No. 75, khatoni No. 409 and khasra No. 60/4. 5. The case of the plaintiffs is that in spite of the private partition having been effected between the parties, defendant No. 1 approached the revenue authorities for the partition of the iand, by metes and bounds claiming the land to be joint of the parties. The plaintiffs filed the suit out of which the present appeal has arisen for declaration to the effect that there has been a private partition between the parties and they are now the exclusive owners and in possession of the land falling to their respective shares as detailed above. The plaintiffs further sought a decree for permanent injunction for restraining the defendant No, 1 from enforcing the order dated 17.2.1998 of the Settlement Tehsildar passed in the partition proceedings. in the alternative, they prayed for restoration of possession of the land belonging to them and found in possession of defendant No. 1. 6. As per the record, defendant No. 1 is shown to have refused to accept the service of summons issued to him. Nor he put in appearance before the learned trial Court. Consequently vide order dated 5.5.1998 he was ordered to be proceeded against exparte. 7. The plaintiffs and defendants No. 2 and 3 arrived at a compromise before the Lok Adalat on 20.6.1998 and on the basis of such compromise the suit filed by the plaintiffs was decreed in the following terms by the learned trial Court: "20.6.1998: Present : Sh. M.R. Sharma, Adv. for the plaintiff. Karam Bir GPA for defendant No. 2. Sh. H.8. Chander, Adv. for defendants No. 2 and 3. Case taken up before the Lok Adalat. The parties entered into compromise. They have stated that the parties have entered into private partition and have placed on record the copy of private partition which is exhibited as Ex. PX. They have further stated that the parties are in separate possession as per private partition and necessary entries be ordered to be carried out in the revenue papers. Their statements so recorded are placed on record. PX. They have further stated that the parties are in separate possession as per private partition and necessary entries be ordered to be carried out in the revenue papers. Their statements so recorded are placed on record. Hence, a compromise decree for declaration to the effect that the parties are owners and in separate possession of the tend as per private family partition dated 4.6.1981, Ex.PX is passed and as per Ex.PX necessary entries rn the revenue record be carried out. Ex.PX shall form the part of decree-sheet. A decree-sheet be dawn accordingly. File after completion, be consigned to Record Room." 8. The compromise judgment and decree dated 20.6.1998 as passed by the learned trial Court was assailed by defendant No. 1 by way of an appeal before the learned District Judge on the grounds that he was not duly and properly served in the suit land and that he being not a party to the alleged compromise Ex.PX, therefore, the compromise decree is bad and not binding on him. 9. The learned District Judge on 6.12.2003 dismissed the appeal of defendant No. 1 by holding that defendant No. 1 was duly served inasmuch as he had refused to accept the service of summons sent to him and that he was rightly proceeded against ex parte. It was further held that the learned trial Court had rightly passed an ex parte decree against defendant No. 1. In so far as the question of validity of the compromise Ex.PX is concerned, the learned District Judge refused to go into such question and gave a liberty to defendant No. 1 to assail the validity of the compromise Ex.PX by way of a separate suit. 10. Aggrieved by the judgment and decree dated 6.12.2003 of the learned District Judge, the defendant No. 1 has approached this Court by way of the present second appeal, which was admitted for hearing on the following substantial question of law :- "Whether the suit could not have been decreed on the basis of the compromise between them and the parties to the suit without insisting for further proof of the claims and pleas set up by the plaintiffs against the parties who are ex parte especially when the claims and pleas were in the nature of joint, common and in separate interest of the parties in the suit." 11. I have heard the learned Counsel for the parties and have also gone through the record of the case. 12. The learned Counsel for the respondents/plaintiffs, at the very out set, has raised an objection as to the maintainability of the appeal. It was contended that since a judgment and decree was passed on the basis of a compromise arrived at before the Lok Adalat, the first appeal before the learned District Judge and the present second appeal are neither competent nor maintainable. In support of his contention, the learned Counsel has placed reliance on the ratio laid down by a learned Single Judge of this Court in Sanjeev Kumar v. Vinod Kumar and others, Latest HLJ 2004(1) H.P. 266: 2004(2) Cur.L.J. (HP.) 270. 13. The ratio relied upon by the learned Counsel for the plaintiffs is not applicable to the facts of the present case. In the said case what was being said that the compromise alleged to have been arrived at between the parties was vague and uncertain and as such the compromise decree was liable to be set aside. It was held that an application to set aside the compromise decree was not maintainable. 14. In the present case, admittedly, the defendant No. 1 was neither present before the Lok Adalat nor before the Court when the compromise decree dated 20.6.1998 came to be passed by the learned trial Court. Nor the defendant No. 1 was represented by any authorized agent or counsel. The compromise decree came to be passed merely on the statement of counsel for the plaintiffs and the statements of defendants No. 2 and 3. Admittedly, defendant No. 1 was exparte as per orders dated 5.5.1998. 15. A consent decree against which no appeal lies by virtue of Section 96, Code of Civil Procedure, means a decree arrived at between the parties with the consent of all persons concerned. As stated above, defendant No. 1 never consented to a decree being passed. The decree passed by the learned trial Court on 20.6.1998 is not a consent or compromise decree pure and simple. It is a decree passed partly on compromise decree as defendants No. 2 and 3 are concerned and partly exparte insofar as defendant No. 1 is concerned. As stated above, defendant No. 1 never consented to a decree being passed. The decree passed by the learned trial Court on 20.6.1998 is not a consent or compromise decree pure and simple. It is a decree passed partly on compromise decree as defendants No. 2 and 3 are concerned and partly exparte insofar as defendant No. 1 is concerned. Therefore, the decree passed in the present case, not being a consent decree, the bar under Section 96, Code of Civil Procedure, would not be applicable and an appeal against such a decree would be maintainable. 16. Defendant No. 1, as stated above, was not present either before the Lok Adalat when the compromise between the plaintiffs and defendants No. 2 and 3 was recorded, or before the Court when a compromise decree was passed by the learned trial Court. 17. It may be noticed that defendants No. 2 and 3 were arrayed as proforma defendants. Only defendant No. 1 was arrayed as a contesting defendant. Since defendants No.2 and 3 were arrayed as proforma defendants it has to be presumed that their interest in the suit was same and similar to that of the plaintiffs. Therefore, any compromise arrived at between the plaintiffs and proforma defendants is meaningless. Defendant No. 1, the sole contesting defendant, was proceeded against ex parte and was not a party to the compromise. Vide compromise a private partition alleged to have been arrived at on 4.6.1981 was admitted by the parties to the compromise, namely, plaintiffs and defendants No. 2 and 3. The defendant No. 1 was a necessary party to the partition and without his consent no effect could be given to the said private partition. 18. It is settled law that a compromise as to partition would be ineffectual unless all the necessary parties to the partition having interest in the property and likely to be affected by the compromise join in it. 19. In Nityamoni Dasi v, Gokul Chandra Sen, 1911 (9) Indian Cases 210, partition suit was disposed of in terms of the compromise as between those who were parties to the compromise and ex parte against the non-consenting parties. 19. In Nityamoni Dasi v, Gokul Chandra Sen, 1911 (9) Indian Cases 210, partition suit was disposed of in terms of the compromise as between those who were parties to the compromise and ex parte against the non-consenting parties. It was held by the Calcutta Hiqh Court:- "The decree of the Subordinate Judge must be set aside and the while case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintained" 20. In Vir Singh v. Khark Singh, AIR 1925 Lahore 280 where all the proprietors had not consented to the compromise it was held that the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the court was, therefore, fully justified in refusing to enforce it. 21. A Division Bench of Calcutta High Court in Taraprasanna Sarkar v. Kalika Mohan Sarkar, AIR 1924 Calcutta 80 has held that there can be no compromise binding upon all the parties to a partition suit until and unless all the parties have joined in the compromise. 22. Similarly a Division Bench of Patna High Court in Mathura Singh and others v. Deodhari Singh and others, AIR 1972 Patna 17 has held that in a suit for partition of joint property a decree by consent amongst some of the parties cannot be maintained If the compromise is not binding against one of the co-sharers, it would not be binding on those who gave their consent. 23. To the similar effect it has been held by the Orissa High Court in Sanyasi Jena and others v. Mina Jena and others, AIR 1984 Orissa 213. 24. The facts involved in the case before the Orissa.High Court are similar to the facts of the present case. Therefore, the ratio laid down therein applies to the present case on all fours. 25. The learned District Judge has erred in coming to the conclusion and in treating the decree passed by the learned trial Court as an ex parte decree against defendant No. 1. 26. No doubt the defendant No. 1 did not put in appearance in spite of service and was ordered to be proceeded against ex parte. 25. The learned District Judge has erred in coming to the conclusion and in treating the decree passed by the learned trial Court as an ex parte decree against defendant No. 1. 26. No doubt the defendant No. 1 did not put in appearance in spite of service and was ordered to be proceeded against ex parte. However, no ex parte, evidence in the suit was recorded as against I. defendant No. 1 and a decree, came to be passed as against him also merely on the basis of the compromise arrived at between the plaintiffs and defendants No. 2 and 3. 27. The Honble Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani, 2003(7) SCC 350 has held: “........Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order 8 Ruie 10 CPC is attracted and the court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant factors constituting the cause of action would suffice and the court would grant the plaintiff such reliefs as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial Court should scrutinise the available pleadings and documents, consider the evidence adduced, and would do well to frame the points for determination and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence." 28. For the foregoing reasons the substantial question of law involved in the present case is answered in the affirmative. 29. Resultantly, the appeal is allowed. The judgments and decree of the two courts below are set aside and the Civil Suit No. 74 of 1998 is remanded to the learned trial Court for disposal afresh in accordance with law and in the light of the observations made above. 30. 29. Resultantly, the appeal is allowed. The judgments and decree of the two courts below are set aside and the Civil Suit No. 74 of 1998 is remanded to the learned trial Court for disposal afresh in accordance with law and in the light of the observations made above. 30. The learned trial Court shall afford an opportunity to the defendant No. 1 to file a written statement and then proceed with the case in accordance with law. 31. Parties through their counsel are directed to appear before the learned trial Court on 4.10.2004. The records be returned forthwith so as to reach the court below well before the date fixed. 32. Parties are, however, left to bear their own costs.