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2007 DIGILAW 449 (PNJ)

Bal Kishan v. Prem Singh

2007-03-14

VINEY MITTAL

body2007
JUDGMENT Viney Kumar Mittal, J.- This order shall dispose of RSA No.2903 of 1986 and CR No.3555 of 1986, as the aforesaid appeal as well as the revision petition have arisen out of a common order dated April 23, 1981 passed by the learned Additional District Judge, Ambala, whereby on an application filed by the defendants under Section 152 of the code of Civil Procedure, the compromise dated August 16, 1979 arrived at between the parties has been ordered to be rectified and as a result of which the compromise decree has been ordered to be modified. Whereas, in the appeal the appellants have challenged the modified judgement and decree of the Appellate Court, in the revision petition the order allowing the application under Section 152 has been challenged. 2. The skeletal facts necessary for the decision of the controversy may be noticed as under : Balkishan, the present appellant (petitioner in the revision petition) tiled a suit for-declaration in the year 1969. The aforesaid suit was dismissed by the trial Court. The plaintiff took up ­the matter in appeal. During the pendency of the appeal, a compromise appears to have been arrived at between the parties on August 16,1979. A written compromise was presented to the Court. As per the aforesaid compromise, the plaintiff had agreed to hand over the possession of 61 kanals and 8 marlas of land. It was also indicated in the compromise that the actual possession of the aforesaid area had been so delivered to the defendants. On the basis of the compromise, a decree was passed by the Appellate Court. 3. Later on, the defendants filed an application under Section 152 of the Code of Civil Procedure claiming that although as per the compromise, an area of 61 kanals and 8 marlas of land was to be left to the defendants and even the actual possession thereof had been so delivered, but by inadvertance one khasra No.76/24 had been omitted from the compromise and as such had not even been include in the decree. Consequently, they sought the rectification of the compromise and the modification of the decree and prayed that the aforesaid khasra No.76/24 be so mentioned. It was claimed by the defendants that the actual possession of even the aforesaid khasra No.76/24 was with the applicant defendants. Consequently, they sought the rectification of the compromise and the modification of the decree and prayed that the aforesaid khasra No.76/24 be so mentioned. It was claimed by the defendants that the actual possession of even the aforesaid khasra No.76/24 was with the applicant defendants. The aforesaid application filed by the defendants was ­rejected by the Appellate Court vide an order dated April 23, 1981 as not maintainable. 4. The defendants Bharpur Singh and Prem Singh (applicants) filed a Civil Revision No.1727 of 1981 before this Court. The aforesaid revision petition was finally decided by this Court vide order dated August 31, 1982 ,it was held that the application under Section 152 filed by the applicants was maintainable. While disposing of the revision petition and remanding the matter back to the Appellate Court, this Court directed the Appellate Court to frame the appropriate issues between the parties and find out as to whether the acual possession of khasra No.67/24 had been given by the plaintiff Bal Kishan to the defendants or not. It was further directed that if the possession of the aforesaid khasra number was found with the defendant applicants, then the compromise be rectified and the decree be modified. The operative portion of the order dated August 31,1982 passed in Civil Revision No1727 of 1981 reads as under: “I have heard the learned counsel for the parties, it could not be successfully contested on behalf of the respondents that in case the petitioners are in possession of the land measuring 61 kanals 9 marlas, as given to them under the compromise, then they were entitled to seek the necessary rectification of the compromise as well as of the compromise decree. What has been stated on behalf of the respondents is that the ­possession of khasra No.67/24 is with Bal Kishan, respondent and since this matter has not been determined by the learned Additional District Judge, the application ­has been rightly dismissed by him, and in any case, the case should be remanded for determination of this fact. However, after hearing the learned counsel for the parties, I am of the considered opinion that the order of the Additional District Judge, is liable to be set aside. The application under Section 152 of the Code is maintainable in such circumstances; particularly when the compromise has already been acted upon by the parties. However, after hearing the learned counsel for the parties, I am of the considered opinion that the order of the Additional District Judge, is liable to be set aside. The application under Section 152 of the Code is maintainable in such circumstances; particularly when the compromise has already been acted upon by the parties. Though it has been stated in the decree itself that ­the possession of 61 kanals 9 marlas of land had been delivered to the petitioners, yet, as the matter i.e. being disputed, the case is remanded to the Court of Additional District Judge, Ambala for framing the proper issue and to decide the matter afresh in accordance with law. It may be mentioned that it will be in the interest of justice and to avlid the multiplicity of proceedings that necessary correction in the compromise deed and the compromise decree is made if it is found that the petitioners are in possession of the land measuring 61 kanals 9 marlas. The parties, through their counsel, have been directed to appear in the Court of the Additional District Judge, Ambala on September 20,1982. The record of the case be sent back forthwith.” 5. In pursuance to the directions issued by this Court in the aforesaid Civil Revision, the Appellate Court framed two issues and ­has directed the rectification of the compromise and consequential modification of the decree. 6. The plaintiff Balkishan has challenged the aforesaid order passed by the Appellate Court through the present revision petition. 7. The modified decree has been challenged through the regular second appeal. 8. Shri Yogesh Kumar Sharma, the learned counsel appearing for the plaintiff Balkishan has contended that although specific directions had been issued by this Court, while remanding the case back to the Appellate Court, to determine the actual possession of khasra No.76/24 but as a matter of fact while passing the impugned order and modifying the decree in question, the Appellate Court has not determined the aforesaid fact but has taken into consideration extraneous matters. 9. On the other hand, Shri Gopal Sharma, the learned counsel appearing for the defendant applicants has defended the order passed by the Appellate Court. It has been contended that since as per the compromise dated August 16, 1979, 61 kanals and 8 marlas was left to the defendant applicants, therefore, the decree in question had rightly been modified by the Appellate Court. It has been contended that since as per the compromise dated August 16, 1979, 61 kanals and 8 marlas was left to the defendant applicants, therefore, the decree in question had rightly been modified by the Appellate Court. Shri Gopal Sharma has also contended that during the pendency of the proceedings before the Appellate Court, after remand, another compromise Ex.A2 had been reached between the parties on February 2, 1985 and, therefore, as per the aforesaid compromise also, the order passed by the Appellate Court was wholly justified. I have duly considered the aforesaid rival contentions of the learned counsel for the parties. However, I find that the order passed by the Appellate Court cannot be held to be in conformity with the directions issued by this Court on August 16, 1979 while remanding the case back to the Appellate Court for fresh determination. A specific direction had been issued by this Court to the Appellate Court to determine as to whether possession of khasra No.76/24 was with the applicant or not. The aforesaid determination has not been done. In these circumstances, it is apparent that the order passed by the Appellate Court cannot be legally sustained. Faced with the aforesaid difficulty, Shri Gopal Sharma, the learned counsel appearing for the respondents (defendant applicants), very fairly states that since it has been found by this Court that the order passed by the Appellate Court is not inconformity with the directions issued by this Court while remanding the matter back, therefore, the order dated April 23, 1986 passed by the Appellate Court be set aside and even the modified decree dated April 23, 1986 be also set aside and the matter be remanded back to the Appellate Court to re-determine the controversy between the parties in terms of the directions issued by this Court on August 31, 1982 passed in Civil Revision No. 1727 of 1981. Keeping in view the fair stand adopted by the learned counsel appearing for the defendant applicants, the revision petition filed by the petitioner is allowed. The order dated April 23, 1986 is set aside. As a result thereof, regular second appeal No.2903 of 1986 is also allowed. Modified judgment and decree dated April 23, 1986 are also set aside. Keeping in view the fair stand adopted by the learned counsel appearing for the defendant applicants, the revision petition filed by the petitioner is allowed. The order dated April 23, 1986 is set aside. As a result thereof, regular second appeal No.2903 of 1986 is also allowed. Modified judgment and decree dated April 23, 1986 are also set aside. The matter is remanded back to the Appellate Court to decide the application under Section 152 of the Code of Civil Procedure filed by the defendant applicants afresh keeping in view the directions issued by this Court on August 31, 1982 in Civil Revision No.1727 of 1981. At this stage, the learned counsel for the parties jointly inform the Court that subject matter of the controversy has since fallen into the territorial jurisdiction of Yamuna Nagar courts. In this view of the matter, the matter is remanded back to a court of competent jurisdiction at Yamuna Nagar. The parties through their learned counsel appearing for the parties are directed to .appear before the District Judge, Yamuna ­Nagar at Jagadhri on May 8, 2007. The Learned District Judge, Yamuna Nagar shall either keep the matter with himself or may allocate the same to a court of competent jurisdiction. A copy of the order be given dasti on payment of charges for urgent copies. ———————————