Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 761 (RAJ)

Gulab v. Board of Revenue Rajasthan

2012-03-27

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—The petition seeks to challenge the order dated 07.06.2011, passed by the Board of Revenue, Ajmer. 2. The facts of the case are that one Bhura died on 10.06.1971 leaving behind his wife Mst. Gulab (petitioner No.1 herein) and daughter Smt. Sita (petitioner No.2 herein). It appears that in respect of lands falling in khasra Nos.60, 61, 156 to 162 measuring 50 bighas 10 biswas and khasra Nos.155, 159 & 62 measuring 6 bighas 16 biswas of Village Pratappura, Tehsil Amer, District Jaipur, Bhura had ¼ share. However, following Bhura's death, lands in his khatedari were mutated by the Gram Panchayat Pratappura vide mutation No.51 dated 12.06.1972 in the name of respondent No.4, Rameshwar, the father-in-law of the petitioner No.1, Gulab. The said mutation No.51 dated 12.06.1972 was challenged by the petitioners by way of an appeal before the Sub Divisional Officer, Amer on 06.09.1982. The SDO, Amer vide his order dated 12.12.2001 accepted the petitioners' appeal and cancelled the mutation No.51 dated 12.06.1972 and remanded the case to the Gram Panchayat Jaisinghpura, Tehsil Amer for decision afresh. Against the order dated 12.12.2001, Rameshwar filed a further appeal before the Divisional Commissioner, Jaipur and the Divisional Commissioner was pleased to remand the matter to the Tehsildar, Amer for decision afresh. On the matter coming up before the Tehsildar, Amer, the Tehsildar, Amer noticed the admitted compromise dated 10.11.2004 entered into between the petitioners and Rameshwar and vide order dated 28.04.2006, restored mutation No.51 dated 12.06.1972 in the name of Rameshwar. 3. Purportedly, aggrieved of the order dated 28.04.2006, passed by the Tehsildar, Amer on the basis of the compromise between the parties made a part of proceedings withdrawn before the Court of Additional District and Sessions Judge, No.2, Jaipur in a criminal proceeding, the petitioners after having obtained Rs.7 lakhs (Rupees Seven Lakhs) under the compromise moved an appeal before the Divisional Commissioner, Jaipur under Section 75 of the Rajasthan Land Revenue Act, 1956. The Divisional Commissioner overlooking the compromise dated 10.11.2004 between the parties as also the passing of the consideration of Rs.7 lakhs to the petitioners thereunder focused on the purported legal rights of the parties under the Hindu Succession Act, 1956 and vide his order dated 15.04.2009 remanded the matter to the Tehsildar, Amer to pass fresh orders in accordance with law more particularly with reference to the provisions of Hindu Succession Act as would operate on Bhura's death. 4. Aggrieved of the order dated 15.04.2009, passed by the Divisional Commissioner, Jaipur in an appeal overlooking and side-stepping a duly recorded and admitted compromise, the respondent No.4, Rameshwar filed a revision under Section 76 of the Revenue Act before the Board of Revenue, Ajmer. The Board of Revenue vide its order dated 07.06.2011 accepted the revision and set aside the order dated 15.04.2009 passed by the Divisional Commissioner holding that in the context of the compromise dated 10.11.2004 between the parties it was an absolutely improper exercise of jurisdiction by the Divisional Commissioner to direct the determination of the purported right of the parties in the Hindu Succession Act afresh notwithstanding the duly recorded compromise between the parties. 5. Heard the counsel for the petitioners and perused the writ petition. 6. Counsel for the petitioners submits that the admitted compromise dated 10.11.2004 between the parties also reflected in the petitioner's application before the Additional District and Sessions Judge, No.2, Jaipur in Criminal revision No.98/2003 (Annexure 2), and the withdrawal of the criminal proceedings against Rameshwar thereon and further consideration of Rs.7 lakhs availed by the petitioners, notwithstanding the petitioners have a legal right to pursue their civil remedies in view of the fact that the said compromise was limited to criminal proceedings and is not binding on the petitioners in revenue proceedings. It has been submitted that the courts are under duty to overlook even duly recorded compromise in the course of criminal proceedings and allow a party to the compromise to reagitate her/their purported legal rights in a separate jurisdiction as if the earlier compromise on the same facts was of no consequence at all. It has been submitted that the courts are under duty to overlook even duly recorded compromise in the course of criminal proceedings and allow a party to the compromise to reagitate her/their purported legal rights in a separate jurisdiction as if the earlier compromise on the same facts was of no consequence at all. Counsel for the petitioners further submits that the compromise dated 10.11.2004 is of no avail to the respondent No.4, Rameshwar in view of the fact that immoveable property in law cannot be transferred by way of compromise and thus such compromise with regard to ownership of immoveable property is nonest. 7. Counsel for the petitioners further submits that the compromise dated 10.11.2004 is of no avail to the respondent No.4, Rameshwar in view of the fact that immoveable property in law cannot be transferred by way of compromise and thus such compromise with regard to ownership of immoveable property is nonest. 7. Counsel for the petitioners has however not denied the factum of compromise dated 10.11.2004 which has been recorded in the application moved the same day by the petitioner Gulab jointly with respondent No.4 Rameshwar before the Additional District and Sessions Judge No.2, Jaipur wherein it was categorically stated as under : 4- ;g fd fjohtudrkZ] xSj fuxjkuhdkj la[;k 2 dk 'olqj gS rFkk vkilh erHksn gks tkus ds dkj.k o yksxksa ds cgdkos esa vkdj U;k;ky; ,-lh-ts-,e- ¼,sl-Mh-½ pkSew esa izkbZosV bLrxklk dj fn;k FkkA mä bLrxklk dks vizkfFkZuh Jhefr xqykc csok Lo% Hkwjk foMªk djrh gSA 5- ;g fd ekuuh; U;k;ky; }kjk mijksä muokuh fjohtu la[;k 98@2003 o muoku jkes'oj cuke jkt- jkT; o vU; esa ekuuh; vf/kuLFk U;k;ky; ds vkns'k fnukad 29-5-2003 tks fd eqdnek la[;k 1186@2003 esa ikfjr fd;k x;k gS dks [kkfjt dj nsrh gS rks xSj fuxjkuhdkj la[;k 2 dks dksbZ vkifÙk ;k mtz ugha gS rFkk vkns'k fnukad 29-5-2003 dks [kkfjt Qjek dj mä fjohtu Lohdkj dj ysus ij vU; fdlh Hkh U;k;ky; jktLFkku mPp U;k;ky; vkfn dgha ij Hkh dksbZ pkjktksgh ugha djsxhA 6- ;g fd xSj fuxjkuhdkj la[;k 2 us vkilh jkthukek djds vkt ;g r; ik;k gS fd jkes'oj o mlds okfjlksa dh py o vpy lEifÙk esa Lo;a ;k mlds okfjl Hkfo"; esa dHkh dksbZ gd gdwd ugha ekxaxs rFkk jkthukesa vuqlkj ,d eq'r udn jkf'k xqykc us izkIr dj yh gS ftlls fd og viuk Lo;a dk Hkj.k iks"k.k o viuh yM+dh lhrk dk vkthou Hkj.k iks"k.k djrh jgsxhA 7- ;g fd —f"k Hkwfe tks fd izrkiiwjk esa esjs 'olqj Jh jkes'oj ds uke ls py jgh gSA ml ls eq>s vc dksbZ fgLlk vkfn ugha pkfg;s rFkk tks 1@4 fgLls fd fy;s jsosU;w U;k;ky; esa okn vkfn izLrqr dj j[ks Fks os Hkh tfj;s jkthukek lekIr djok fy;s gSA bl dkj.k esjs 'olqj dh py o vpy lEifÙk esa esjk o esjs okfjlku dk dksbZ ysuk nsuk ugha gSA ;fn Hkfo"; esa bl lEcU/k esa dksbZ mtz vkifÙk mBk;sxk rks og jkt njckj es >wBk le>k tk;sxkA (Non-petitioner No.2 before the Additional District and Sessions Judge No.2 was Gulab – petitioner No.1 herein) 8. The counsel for the petitioners also not denied the factum that under the compromise aforesaid the petitioners have received a sum of Rs.7 lakhs. The case of the petitioners is also not that the said compromise has been put to challenge in any judicial proceedings as being vitiated for reasons either of fraud, coercion or such like grounds as may be available to the parties to a compromise for having a compromise declared as of no effect and not binding. 9. The submissions of the counsel for the petitioners are nothing but legal legerdemain and an attempt to mechanically state the law without regard to the complete facts of the case in issue. Sanctity of contract where not upstaged by law is central to any society. A compromise has to hold until impugned for fraud, coercion or like grounds in suit properly laid before a civil court and declaration obtained to its invalidity. 10. There is no substance in the argument of the counsel for the petitioners that a compromise before a criminal court of no avail in proceedings before the civil courts. Counsel for the petitioners has made only bald submissions and referred neither to any statutory provision, legal maxim/principles or doctrine or relied upon any judgment of this Court or the Apex Court in support of his contentions. However, the legal enunciation on the binding effects of a compromise has been made and reiterated by the Apex Court times over. 11. A bare look at the compromise as recorded in the application dated 10.11.2004 before the Court of Additional District and Sessions Judge, No.2, Jaipur on which criminal proceedings against Rameshwar, respondent No.4 herein, were dropped indicates that the compromise relates to a civil right being claimed by one party against the other. There is also no question of any transfer of property by way of compromise in view of the fact that the lands in issue stand mutated in the name of Rameshwar on the basis of an order of a revenue court which the petitioners have agreed not to assail under the compromise dated 10.11.2004. 12. As early as in the case of Sailendra Narayan Bhanja Deo vs. The State of Orissa ( AIR 1956 SC 346 ), a Constitutional Bench of the Hon'ble Supreme Court has held that a compromise can constitute an estoppel by judgment. 12. As early as in the case of Sailendra Narayan Bhanja Deo vs. The State of Orissa ( AIR 1956 SC 346 ), a Constitutional Bench of the Hon'ble Supreme Court has held that a compromise can constitute an estoppel by judgment. Reference may be made herein to para 8 of the opinion of the Hon'ble Supreme Court in the aforesaid case which is as under : The plea of estoppel is sought to be founded on the compromise decree, Ex. 'O' passed by the Patna High Court on 2nd May, 1945, in F. A. No.15 of 1941. The compromise decree is utilised in the first place as creating an estoppel by judgment. In – 'In re. South American and Mexican Company, Ex parte Bank of England'(1895) 1 Ch 37 (C), it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams, J., Lord Herschell said at page 50:- "The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action". To the like effect are the following observations of the Judicial Committee in Kinch vs. Walcott, 1929 AC 482 at p. 493 (D) : "First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal". The same principle has been followed by the High Courts in India in a number of reported decisions. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal". The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the case of Secretary of State, for India in Council vs. Ateendranath Das, 63 Cal 550 at p. 558(E); Bhaishanker Nanabhai and others vs. Morarji, 36 Bom 283(F) and Raja Kumara Venkata Perumal Raja Bahadur, vs. Thatha Ramasamy, 35 Mad 75(G). In the Calcutta case after referring to the English decisions the High Court observed as follows:- "On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. When we say "every step in the reasoning" we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment". 13. The same view has been reiterated by the Hon'ble Supreme Court in the case of Pulavarthi Venkata Subba Rao & Os. vs. Valluri Jagannadha Rao (deceased) & Ors. ( AIR 1967 SC 591 ) whereby it has been held that a decree can create an estoppel between the parties. 14. Further, in the case of Byram Pestonji Gariwala vs. Union Bank of India & Ors. ( (1992) 1 SCC 31 ), the Hon'ble Supreme Court has held that a judgment by consent is intended to stop litigation between the parties just as much as judgment resulting from a decision of the court at the end of a long drawn out fight and a compromise decree creates an estoppel by judgment. ( (1992) 1 SCC 31 ), the Hon'ble Supreme Court has held that a judgment by consent is intended to stop litigation between the parties just as much as judgment resulting from a decision of the court at the end of a long drawn out fight and a compromise decree creates an estoppel by judgment. Quoting Spencer-Bower and Turner in Res Judicata (2nd edn., page 37), the Hon'ble Supreme Court has noted with approval that any judgment or order made in pursuance of the consent and agreement of the parties is no less efficacious as estoppel even though doubts have been occasionally expressed whether strictly the foundation of estoppel in such cases is not on the basis of representation by conduct, rather than res judicata. 15. In the case of Salkia Businessmen's Association & Ors. vs. Howrah Municipal Corporation & Ors. ( (2001) 6 SCC 688 ), the Hon'ble Supreme Court has taken a view that where an order of compromise has an imprimatur of a court ceases to be a mere matter of contract between the parties and as long as the order of the court in which the compromise has been recorded stands, it is not permissible to go behind the same to ascertain its substance or the nature of compliance when the manner, mode and place of compliance has already been stipulated with meticulous care and detail in the order itself and that the decision of the court based on a compromise when not made dependent upon any contingencies, the order stands and there is need to comply therewith. 16. It must be noted that the aforesaid judgments of the Hon'ble Supreme Court relate to compromise before civil courts and the contention of the counsel for the petitioners was that a compromise in the course of criminal proceedings can have no relevance to the enforcement of civil rights between the parties, even though the compromise in the course of criminal proceedings may relate directly to the very same civil rights which are sought to be re-agitated. 17. In my considered opinion, a compromise before a court is binding universally between the parties thereto whether the compromise is in the course of civil proceedings or criminal proceedings. 17. In my considered opinion, a compromise before a court is binding universally between the parties thereto whether the compromise is in the course of civil proceedings or criminal proceedings. The Hon'ble Supreme Court has also had an occasion of dealing with an issue of a compromise in the course of criminal proceedings being binding on the parties to the compromise even in civil proceedings. Reference in this regard may be made to the judgment of the Hon'ble Supreme Court in the case of Sona Bala Bora & Ors. vs. Jyotirindra Bhatacharjee ( (2005) 4 SCC 501 ), wherein the facts were that the appellant filed a suit against the respondent and one Bhogirath claiming a declaration that Bhogirath did not have the absolute right to transfer the property to the other respondents and that the sale made to the respondent by Bhogirath was void and should be set aside and for a further declaration that Bhogirath was bound by the compromise dt. 10.6.1977 with the appellant filed in Ct. Case No.3/1977 (a case arising from Sec. 107 Cr.P.C.) and that the appellant had a preferential right and a right of pre-emption to purchase the other two houses on the land. The case of appellant based on the compromise in criminal proceedings was overlooked by the Division Bench of the High Court consequent to which the Hon'ble Supreme Court while overturing the order of the High Court held that the Division Bench had wrongly overlooked the compromise entered into between the appellant and Bhogirath and which compromise had never been challenged by any party. In this view of the matter, the Hon'ble Supreme Court held that the Division Bench of the High Court ought to have applied its mind to the matter of compromise between the appellant Sona Bala Bora and Bhogirath and based inter alia on this consideration of the compromise in criminal proceedings between Sona Bala Bora and Bhogirath, the Hon'ble Supreme Court set aside the order passed by the Division Bench of the High Court and restored the decision of the trial court as affirmed by the Single Judge of the High Court. 18. The principle which can be drawn from the aforesaid case is that the Supreme Court has approved consideration of a compromise in a criminal proceedings for determination of a civil dispute on the same facts. 18. The principle which can be drawn from the aforesaid case is that the Supreme Court has approved consideration of a compromise in a criminal proceedings for determination of a civil dispute on the same facts. In the present case, it is an admitted case that a compromise dated 10.11.2004 was entered into between the petitioner No.1 Gulab and the respondent No.4, Rameshwar with regard to the property in dispute albeit in a criminal proceeding acted upon and further not put to challenge before any court. The terms of the said compromise therefore are determinative for the adjudication of a revenue suit wherein the same relief regarding a property dispute is sought to be re-agitated. 19. The impunity with which cases are laid before courts without regard either to the history of the cases or the law obtaining needs to be necessarily addressed. For this purpose the only appropriate instrument with the court is imposition of costs. 20. The writ petition therefore stands dismissed in the facts of the case with a cost of Rs.10,000/- to be paid to the Rajasthan State Legal Services Authority. 21. Stay application also stands dismissed. 22. Copy to Rajasthan State Legal Services Authority.