JUDGMENT - KHARCHE S.T., J.:-By invoking the jurisdiction of this Court under section 100 of the Code of Civil Procedure, this second appeal has been filed by the unsuccessful original defendants being aggrieved by the judgment dated 26-10-1989 of the learned Additional District Judge in Regular Civil Appeal No. 59 of 1983, whereby the appeal came to be allowed and the judgment and decree passed by the trial Court on 11-4-1983 in Regular Civil Suit No. 43 of 1975 was set aside and the Appellate Court granted decree for partition and separate possession by allotting 4/9th share to the original plaintiff Balaji Patil and allowed the defendants, who are the legal representatives of Zaibunnisa, to retain the land to the extent of 5/9th share and rejected the claim of the plaintiff Balaji Patil for mesne profits. 2. This litigation has a chequered history. One Abdul Rahim Patwari is the owner of agricultural lands, which were total 13 fields in number, admeasuring 30.57 acres. He died in the year 1943 leaving behind him his heirs. The genealogical tree is not in dispute which is as under ; Abdul Rahim Patwari (died in 1943) | Hajrabi (died in 1957) _______________|_______________________ | | Abdul Hai (died in 1950 Zaibunnisa (died in 1974) ________|_________ __________________ | | | | Azimunnisa Nasimunnisa | | | | _____________________________________________________ | | | | NasimbiI Rafiq Begam Anisa Begam Moh. Shafiq (def. No. 1) (def. No. 2) (def. No. 3) (def. No. 4) Abdul Rahim died in 1943 leaving behind Hajrabi, his son Abdul Hai and daughter Zaibunnisa. Hajrabi also died in the year 1957. Abdul Hai also died in 1950 leaving behind his daughters Azimunnisa and Nasimunnisa. Zaibunnisa died on 4-11-1974 leaving behind her three daughters, namely Nasimbi, Rafiq Begam, Anisa Begam and son Mohammad Shafiq Hussain. 3. It is contended that Abdul Rahim was working as Patwari and had purchased the property described in Schedule A benami in the name of Mazharullah, the brother of the wife of Abdul Rahim and the property described in Schedule A is admeasuring 30.57 acres in all. Said Mazharullah claimed himself to be the real owner and transferred by sale the whole of the property described in Schedule A to various persons including the original plaintiff Balaji Patil. Said Mazharullah claimed himself to be the real owner and transferred by sale the whole of the property described in Schedule A to various persons including the original plaintiff Balaji Patil. Therefore, after the death of Abdul Rahim, Hajrabi, daughter Zaibunnisa and the grand daughters Azimunnisa and Nasimunnisa has filed Regular Civil Suit No. 24-A of 1955 against Balaji Patil and others for possession as well as permanent injunction restraining them from interfering into the peaceful use and enjoyment of the agricultural land described in Schedule A annexed to plaint in that suit. This suit was decreed by the Civil Judge, Jr. Dn., by the judgment and decree dated 20-12-1956. Balaji Patil being aggrieved by the said judgment and decree carried appeal to the District Court which was registered as Civil Appeal No. 7-A of 1957. The learned Additional District Judge dismissed the said appeal on 24-3-1958. Therefore, Balaji Patil being dissatisfied with the judgment of the Additional District Judge preferred second appeal in the High Court which was registered as Second Appeal No. 143 of 1958. During the pendency of the said second appeal, Azimunnisa and Nasimunnisa transferred their shares in the property described in Schedule A in favour of Balaji Patil and thereafter these two sisters, namely Azimunnisa and Nasimunnisa, compromised the litigation in respect of their shares in the suit property with Balaji Patil and both the sisters agreed the Balaji Patil has acquired the full and indefensible title in their own entire share and interest in the suit property. This Court recorded the said compromise on 16-9-1963 and the compromise decree was (Ex. 43) was drawn in terms of the compromise petition (Ex. 54) dated 14-11-1960. Consequently, the second appeal in respect of the shares and interest of Azimunnisa and Nasimunnisa was allowed and the suit to that extent was dismissed. 4. After passing the compromise decree, Balaji Patil and these two sisters, Azimunnisa and Nasimunnisa, filed Regular Civil Suit No. 4 of 1964 for partition and separate possession of the two fields bearing Survey No. 1039 and 1058 only and the said suit was withdrawn on 5-10-1976 with permission to file fresh suit. 5. However, thereafter Zaibunnisa Abdul Rahim and her legal representatives, i.e. defendants 1 to 4, had instituted Regular Civil Suit No. 63 of 1967 for partition and separate possession of their share in the two fields bearing Survey No. 1039 and 1058. 5. However, thereafter Zaibunnisa Abdul Rahim and her legal representatives, i.e. defendants 1 to 4, had instituted Regular Civil Suit No. 63 of 1967 for partition and separate possession of their share in the two fields bearing Survey No. 1039 and 1058. This suit was decreed by the trial Court on 8-1-1970 wherein preliminary decree for partition and separate possession was passed. Balaji Patil and the two sisters, namely Azimunnisa and Nasimunnisa, being aggrieved by that judgment and decree passed by the trial Court carried appeal to the District Court which were numbered as Regular Civil Appeals No. 20 and 22 of 1970 respectively. However, Zaibunnisa has also separately instituted one Regular Civil Suit No. 169 of 1966 against Balaji Patil for recovery of mesne profits which was partly decreed by the trial Court. Balaji Patil being aggrieved by that judgment and decree passed by the trial Court carried appeal to the District Court which came to be registered as Regular Civil Appeal No. 21 of 970. All the three appeals, i.e. Regular Civil Appeals No. 20, 21 and 22 of 1970 were heard together by the learned District Judge, who confirmed the judgment and decree passed by the trial Court in Regular Civil Suit No. 63 of 1967 and determined the shares of the parties and held that the parties are governed by the Hanfi School of Muslim law and as per this law the share of Zaibunnisa on the death of her brother Abdul Hai and mother Hajrabi would be 5/9th whereas the total share of Azimunnisa and Nasimunnisa would be 4/9th. 6. Thereafter Balaji Patil filed Regular Civil Suit No. 43 of 1979 claiming title and interest to the 4/9th share of Azimunnisa and Nasimunnisa by virtue of the compromise decree passed by this Court in S.A. No. 143 of 1958. It is contended that these two sisters Azimunnisa and Nasimunnisa had agreed by virtue of the compromise that the plaintiff Balaji Patil has acquired good and indefensible title to their own 2/3rd share of their interest, whatever it may be in the subject-matter of the suit. It is contended that these two sisters Azimunnisa and Nasimunnisa had agreed by virtue of the compromise that the plaintiff Balaji Patil has acquired good and indefensible title to their own 2/3rd share of their interest, whatever it may be in the subject-matter of the suit. He contended that the share of Zaibunnisa to the extent of 5/9th and the shares of Azimunnisa and Nasimunnisa to the extent of 4/9th in the entire field property admeasuring 30.57 acres has vested in them and consequently the plaintiff stand subrogated to the extent of 4/9th share of the property and Azimunnisa and Nasimunnisa have lost their entire share by virtue of the said compromise decree. The plaintiff contended that the agricultural land bearing Kh. No. 1039 admeasuring 3.46 acres and agricultural land bearing Kh. No. 1058 admeasuring 6.50 acres out of the property described in Schedule A was in his possession and since the shares of the parties have already been determined by the learned District Judge, it would operate as res judicata because defendants 1 to 4 were also parties to the said litigation. Plaintiff Balaji Patil contended that since Zaibunnisa continued in possession of the entire field property except filed Survey No. 1039 and 1058, he is entitled to claim mesne profits and restricted his claim for the year 1971-72 to 1974-75. 7. The defendants resisted the claim put forth by the plaintiff Balaji Patil and contended that the plaintiff would be entitled to the shares of Azimunnisa and Nasimunnisa in the fields Survey No. 1039 and 1058 which was determined to the extent of 4/9th share by the learned District Judge while deciding Civil Appeals No. 20, 21 and 22 of 1970. It is contended that the heirs of Zaibunnisa, i.e. the defendants, got 5/9th share in the property described in Schedule A including Kh. No. 1039 and 1058. The defendants contended that Azimunnisa did not sell her undivided share in the field Kh. No. 1039 and 1058 to plaintiff Balaji Patil by virtue of the sale-deed dated 23-3-1960 and Nasimunnisa also did not sell her undivided share to the plaintiff Balaji Patil by virtue of the sale-deed dated 29-8-1960 and both the sale-deeds are bogus, sham and colourable documents. No. 1039 and 1058 to plaintiff Balaji Patil by virtue of the sale-deed dated 23-3-1960 and Nasimunnisa also did not sell her undivided share to the plaintiff Balaji Patil by virtue of the sale-deed dated 29-8-1960 and both the sale-deeds are bogus, sham and colourable documents. It is contended that Balaji Patil tried to take forcible possession through Azimunnisa and Nasimunnisa after passing of the compromise decree by this Court in the second appeal to which the defendants had raised obstructions and, therefore, proceedings under section 145 of the Code of Criminal Procedure were initiated by the Sub- Divisional Magistrate and it was held by the Sub-Divisional Magistrate that Azimunnisa and Nasimunnisa were not in possession of the property till 13-3-1961. It is contended that Zaibunnisa was in possession of the entire filed property except filed Survey Nos. 1039 and 1058 continuously, peacefully and without any obstruction for more than 12 years and, therefore, she became the owner by adverse possession and acquired title as against the true owners, i.e. Azimunnisa and Nasimunnisa or their successor-in-title. It is contended that the suit was barred by period of limitation and is liable to be dismissed. 8. On the aforesaid pleadings, the trial Court framed several issues. The parties adduced oral as well as documentary evidence. The trial Court on consideration of the evidence adduced before it, recorded the finding that the plaintiff Balaji Patil cannot claim 4/9th share in the agricultural lands described in Schedule A of the plaint, that Zaibunnisa has perfected her title by virtue of adverse possession as she and her heirs are in possession for more than 12 years. The trial Court also recorded the finding that the suit is not bad for non-joinder of necessary parties though Azimunnisa and Nasimunnisa were not impleaded as parties and that the plaintiff is not entitled to recover the mesne profits. The trial Court also recorded the finding that plaintiff Balaji Patil is only entitled to 4/9th share in the agricultural fields Survey Nos. 1039 and 1058 which was the undivided share of Azimunnisa and Nasimunnisa. Consistent with these findings the trial Court dismissed the suit with costs. The trial Court also recorded the finding that plaintiff Balaji Patil is only entitled to 4/9th share in the agricultural fields Survey Nos. 1039 and 1058 which was the undivided share of Azimunnisa and Nasimunnisa. Consistent with these findings the trial Court dismissed the suit with costs. The plaintiff Balaji Patil being aggrieved by this judgment and decree carried appeal to the District Court and the learned Additional District Judge on hearing the learned Counsel for the parties allowed the appeal and granted decree for partition and separate possession of 4/9th share in favour of the plaintiff Balaji Patil in entire 13 fields and allowed the defendants to retain 5/9th share. However, the Appellate Court disallowed the claim for mesne profits. This judgment and decree passed by the Appellate Court is under challenge in this second appeal. 9. Mr. Somalwar, learned Counsel for the defendants, contended that perusal of the terms and conditions of the compromise decree passed by this Court in S.A. No. 143 of 1958 would make it clear that the plaintiff Balaji Patil is not entitled to claim 4/9th share in the entire field property described in Schedule A and the compromise decree can be enforced only to the extent of undivided shares of the two sisters, i.e. Azimunnisa and Nasimunnisa, in the two agricultural fields bearing Survey Nos. 1039 and 1058 admeasuring 9.99 acres which was determined and allotted by the learned District Judge while deciding the three civil appeals. He contended that the Appellate Court has committed an error in construing the terms and conditions mentioned in the compromise decree and reached erroneous finding that the plaintiff Balaji Patil would be entitled to 4/9th share in the entire field property described in Schedule A. He contended that the plaintiffs right to claim partition and possession of the undivided share of the two sisters, Azimunnisa and Nasimunnisa, would be restricted to field Survey No. 1039 and 1058 only as per the sale-deeds dated 23-2-1960 and 29-8-1960 executed by them in his favour and the trial Court was perfectly justified in dismissing the suit on consideration of the correct interpretation of the terms and conditions of the compromise decree passed by this Court in the second appeal. He pointed out that the finding of the Appellate Court that the two sisters Azimunnisa and Nasimunnisa transferred their entire right, title and interest of the suit fields in favour of the plaintiff Balaji Patil by virtue of the compromise decree passed in S.A. No. 143 of 1958, is hypothetical and is not supported by any documentary evidence. Therefore, the entire approach of the Appellate Court was wrong and, in such circumstances, the impugned judgment cannot be sustained in law. 10. Mr. Somalwar, learned Counsel, further contended that since the undivided share of Azimunnisa and Nasimunnisa has already been determined by the learned District Judge while deciding the Regular Civil Appeals No. 20, 21 and 22 of 1970 by the judgment dated 10-3-1975, it is not open for the plaintiff Balaji Patil to agitate the same issue in respect of the claim of undivided share in the other fields property and therefore since the plaintiff Balaji Patil was a party to the earlier litigation and since no appeal has been filed against the judgment dated 10-3-1975 passed by the District Judge, his contention is barred by the principles of res judicata. He further contended that the defendants who are the legal representatives of Zaibunnisa have perfected their title to the share of Zaibunnisa by virtue of adverse possession because Zaibunnisa admittedly continued in possession of the agricultural lands after the death of her father Abdul Rahim, who died in the year 1943 as against the shares of Azimunnisa and Nasimunnisa in the field property. He contended that the Appellate Court has committed an error in rejecting the contention of the defendants that Zaibunnisa was in continuous and peaceful possession for more than 12 years next before the institution of the suit and acquired title by adverse possession and, therefore, the impugned judgment cannot be sustained in law. 11. Mr. Masodkar, learned Counsel for the plaintiff Balaji Patil, contended that by virtue of the compromise decree passed by this Court on 16-9-1963 the two sisters Azimunnisa and Nasimunnisa transferred their entire right, title and interest in the suit fields in favour of plaintiff Balaji Patil and the subject-matter of Regular Civil Suit No. 24-A of 1955 was comprised of 13 fields admeasuring 30.57 acres. He contended that the compromise decree passed by this Court in S.A. No. 143 of 1958 cannot be interpreted to mean that these two sisters Azimunnisa and Nasimunnisa had transferred their undivided shares in respect of field Survey Nos. 1039 and 1058 admeasuring 9.99 acres only. He contended that the two sisters Azimunnisa and Nasimunnisa were parties to the Regular Civil Suit No. 63 of 1967 which was decreed by the trial Court on 8-1-1970 and the appeals which arose out of the said judgment and decree were registered as Civil Appeals No. 20, 21 and 22 of 1970 and the learned District Judge not only confirmed the judgment and decree passed by the trial Court, but also determined the shares of the parties by the judgment dated 10-3-1975. He contended that since the shares of Azimunnisa and Nasimunnisa were determined to be 4/9th in the entire suit property mentioned in Schedule A annexed with the plaint in the Civil Suit No. 24-A of 1955 and the share of these two sisters being 4/9th in the whole of the property, the same has been transferred in favour of Balaji Patil by virtue of the compromise petition in the second appeal and, therefore, the Appellate Court was perfectly justified in coming to the conclusion that whatever has been transferred by the compromise decree by these two sisters is not only their share in the agricultural fields Survey No. 1039 and 1058, but the right, title and interest in all the 13 fields stands transferred in favour of Balaji Patil as per the compromise decree. He, therefore, contended that the Appellate Court has made a correct interpretation of the judgment dated 16-9-1963 passed by this Court in S.A. No. 143 of 1958 and no case has been made out for interference into the findings recorded by the learned Additional District Judge. He contended that the determination of the shares by the learned District Judge by the judgment dated 10-3-1975 would operate as res judicata and, therefore, these two sisters Azimunnisa and Nasimunnisa cannot claim any right, title or interest in the field property which was the subject-matter of Regular Civil Suit No. 24-A of 1955 filed by them, their aunt Zaibunnisa and their grand mother Hajrabi. He, therefore, contented that the present appeal may kindly be dismissed with costs. 12. He, therefore, contented that the present appeal may kindly be dismissed with costs. 12. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. The substantial question of law sought to be raised by the learned Counsel for the appellants is that whether on the basis of the judgment and decree passed by this Court in Second Appeal No. 143 of 1958 and the findings recorded by the learned District Judge in Civil Appeal Nos. 20, 21 and 22 of 1970, the plaintiff Balaji Patil cannot claim title to the 4/9th share in the entire field property shown in Schedule A annexed with the plaint in Reg. Civil Suit No. 24-A of 1995. In order to appreciate the contentions of the learned Counsel for the parties, it is necessary to reproduce the relevant terms of the compromise because it is noting dispute that the compromise petition dated 14-11-1960 was filed before the High Court in S.A. No. 143 of 1958 and the High Court has passed an order on 16-9-1963 after recording the compromise entered into between these two sisters Azimunnisa and Nasimunnisa on one hand and the plaintiff Balaji Patil on the other. The decree was drawn up on the basis of the order passed by the High Court and the relevant terms and conditions of the compromise petition are as under : "(1) The present respondent-plaintiffs No. 2 Azimunnsa and 3 Nasimunnisa have compromised their subject-matter of dispute in this litigation with the present appellant-defendant Balaji Patil. (2) Azimunnisa and Nasimunnisa hereby agree and accept that the appellant Balaji has acquired good and indefensible title to their own entire two third share, or their entire interest whatever it may, in the subject-matter of this suit. They all agree that to the extent of their interest the suit should be dismissed. (3) Azimunnisa and Nasimunnisa hereby agree and accept that the possession of the appellant Balaji on the property in the suit is lawful in his own right. (4) Parties to this compromise agree that as between themselves, they will bear their own costs as incurred." 13. It may be mentioned that it is not in dispute that Azimunnisa had executed the sale-deed dated 23-2-1960 of the filed Survey No. 1039 and Nasimunnisa had executed the sale-deed on 28-9-1960 for the field Survey No. 1058 in favour of Balaji Patil. It may be mentioned that it is not in dispute that Azimunnisa had executed the sale-deed dated 23-2-1960 of the filed Survey No. 1039 and Nasimunnisa had executed the sale-deed on 28-9-1960 for the field Survey No. 1058 in favour of Balaji Patil. However, it is also not in dispute that one Abdul Rahim Patwari had purchased the suit property shown in Schedule A annexed with the plaint in the Original Civil Suit No. 124-A of 1955 in the name of his brother-in-law Mazharullah (wifes brother) benami. Mazharullah claimed to be the owner of the suit property and therefore, the widow of Abdul Rahim had filed this suit against Balaji Patil and others to whom the property in question was sold. That suit was for permanent injunction restraining the plaintiff Balaji and eight others from interfering with the possession of Zaibunnisa and others. That suit was decreed against the plaintiff Balaji and others on 20-12-1956 and the subject-matter of that suit was the property mentioned in Schedule A including the field Kh. No. 1039 and 1058. 14. Now coming to the terms included in the compromise petition it would clearly reveal that Azimunnisa and Nasimunnisa have compromised their subject-matter of dispute in that litigation with Balaji Patil and agreed that Balaji Patil had acquired good and indefensible title to their own entire 2/3rd share or their entire interest whatever may be in the subject-matter of that suit and also agreed that to the extent of their interest, the suit should be dismissed. Azimunnisa and Nasimunnisa also agreed and accepted that Balaji was in lawful possession of the property in his own rights so far as field Survey No. 1039 and 1058 are concerned. 15. The Appellate Court has interpreted the terms and conditions of the compromise decree in favour of the plaintiff Balaji Patil by assigning the reason that Azimunnisa and Nasimunnisa had agreed that they had transferred their entire right, title and interest in all the 13 suit fields in favour of Balaji Patil. Therefore, the conclusion drawn appears to be only hypothetical in absence of any documentary evidence. Therefore, the conclusion drawn appears to be only hypothetical in absence of any documentary evidence. Admittedly Azimunnisa and Nasimunnisa had sold their undivided share in the fields Survey No. 1039 and 1058 to Balaji Patil by registered sale-deed dated 23-2-1960 and 29-8-1960 and, therefore, this is the documentary evidence on record which indicate that Azimunnisa and Nasimunnisa had agreed by way of compromise in the second appeal to transfer whatever their undivided share was there in these two fields because admittedly even Azimunnisa and Nasimunnisa were not the exclusive owner of these two fields Survey No. 1039 and 1058. Therefore, this Court is of the considered opinion that the Appellate Court has committed an error in drawing such interpretation in favour of Balaji Patil while recording the finding that these two sisters Azimunnisa and Nasimunnisa transferred their entire right, title and interest in all the thirteen suit fields in favour of Balaji Patil. 16. It does not stand to reason that Azimunnisa and Nasimunnisa would transfer their undivided interest in all the 13 fields including field Survey No. 1038 and 1058 in favour of Balaji Patil by entering into the compromise in three- four lines that they have compromised that subject-matter of the dispute and agreed that Balaji Patil has acquired good and indefensible title to their own undivided 4/9th share in the property which is admeasuring 30.57 acres. In such circumstances, it appears that by virtue of conditions No. 1 and 2 incorporated in the compromise decree (Ex. 43) Balaji Patil wants to establish his title to the undivided share which was determined as 4/9th in all the 13 fields admeasuring 30.57 acres, unlawfully and without any basis. No foundation has been led by Balaji Patil to show that Azimunnisa and Nasimunnisa had an intention to transfer their undivided share in all the 13 fields in his favour for the meager consideration mentioned in the sale-deed dated 13-2-1960 and 29-8-1960 and, therefore, this Court is of the considered opinion that the judgment and decree passed by the Appellate Court cannot be sustained in law and, therefore, this Court answers the aforesaid question of law in favour of the defendants that by virtue of the compromise decree passed by this Court in S.A. No. 143 of 1958 and the findings recorded by the District Judge in Civil Appeal Nos. 20, 21 and 22 of 1970, the plaintiff cannot claim 4/9th share in the entire landed property shown in Schedule A annexed with the plaint in Original Civil Suit No. 124-A of 1955 except field Survey No. 1039 and 1058. 17. On close scrutiny of the facts and circumstances, it is obvious that the Trial Court was perfectly justified in interpretation of the terms and conditions incorporated in the compromise decree passed by this Court in S.A. No. 143 of 1958 and the Appellate Court obviously has been swayed away by the ambiguous Conditions No. 1 and 2 mentioned in the compromise decree and, as such, the present appeal deserves to be allowed with costs. Therefore, the impugned judgment of the Appellate Court is set aside and that of the Trial Court is restored. Appeal is allowed, as indicated above. Appeal allowed. -----