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2023 DIGILAW 620 (JK)

Balbir Singh v. Pawan Kumar

2023-10-13

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioners have challenged order dated 09.09.2013 passed by the Principal District Judge, Jammu (hereinafter to be referred as the appellate court), whereby civil miscellaneous appeal filed by the petitioners against order dated 09.07.2013 passed by learned Sub Judge (Chief Judicial Magistrate), Jammu (hereinafter to be referred as the trial court) has been dismissed. 2. It appears that a civil suit was filed by the predecessor in interest of the respondents, namely, Sh. Maya Ram Sharma before the court of 2nd Additional Munsiff, Jammu. In the said suit, Late Maya Ram Sharma had sought a declaration to the effect that he is the legal owner of the land measuring 55 kanals falling in khasra Nos. 129, 131, 132, 111, 112, 113 and 114 situated at Village Dhoun Chak and land measuring 9 kanals and 11 marlas falling in khasra Nos. 590 situated at Village, Dohal, Tehsil Akhnoor. A further declaration was also sought that agreement dated 05.06.1999 executed between Maya Ram Sharma and petitioners herein, who happen to be the defendants in the said suit, is unenforceable conferring no right, title or interest upon the defendants. A permanent prohibitory injunction restraining the defendants from alienating the suit land and a khokha was also sought. 3. During pendency of the said suit, a compromise came to be entered into by the parties, in terms whereof, a compromise decree dated 09.07.2012 was passed. By virtue of aforesaid compromise decree, it was provided that the land measuring 13 kanlas and 10 marals falling in khasra Nos. 111, 112, 113 and 114 situated at village Dhoun Chak was settled to be retained by predecessor in interest of the respondents viz., Maya Ram Sharma and all other land, which was subject matter of the suit before the 2nd Additional Munsiff, Jammu, was to be retained by the petitioners. This compromise decree came to be challenged by the petitioners by way of a separate suit before the court of learned Sub Judge (CJM), Jammu. 4. It was pleaded in the suit filed by the petitioners/plaintiffs before the trial court that compromise was arrived at between them and the predecessor in interest of the respondents under coercion. Alongside the suit, plaintiff filed an application for grant of interim injunction. 4. It was pleaded in the suit filed by the petitioners/plaintiffs before the trial court that compromise was arrived at between them and the predecessor in interest of the respondents under coercion. Alongside the suit, plaintiff filed an application for grant of interim injunction. The learned trial court after hearing the parties, dismissed the application of the plaintiffs/petitioners seeking interim injunction against the defendants/predecessor-in-interest of the respondents vide its order dated 09.07.2013. The said order came to be challenged by the petitioners by way of an appeal before the court of learned Principal District Judge, Jammu. The same stands dismissed vide impugned judgment dated 09.09.2013. 5. The petitioners have challenged the impugned judgment passed by the learned Sub Judge (CJM), Jammu as upheld by the learned Principal District Judge, Jammu, on the grounds that the learned courts below have not considered the facts in their proper perspective. It has been submitted that a false case was registered against the petitioners by the predecessor in interest of the respondents at Police Station, Akhnoor and the learned trial court, while discussing this aspect of the matter, has erroneously observed that the registration of FIR is an incident post compromise, which is contrary to the facts. It has been further contended that it was only because of the said FIR that the petitioners were put under threat, as a result of which, they were pressurized to enter into the compromise. It has also been contended that the respondents have time and again been pressuring the petitioners so as to have more land and these aspects of the matter have been ignored by the courts below. 6. I have heard learned counsel for the parties and perused the record of the case. 7. As already stated, while narrating the facts of the case, in terms of the compromise decree dated 09.07.2012 passed by the 2nd Additional Munsiff, Jammu, the petitioners were given the possession and ownership of entire subject matter of the suit land excepting 13 kanals and 10 marals of land under khasra Nos. 111, 112, 113 and 114 situated at Village Dhoun Chak which was to be retained by the respondents. It is pertinent to mention here that the subject matter of suit comprised 55 kanals of land at Village Dhoun Chak, Akhnoor and Village Dhohal, Tehsil Akhnoor in different khasra numbers. 111, 112, 113 and 114 situated at Village Dhoun Chak which was to be retained by the respondents. It is pertinent to mention here that the subject matter of suit comprised 55 kanals of land at Village Dhoun Chak, Akhnoor and Village Dhohal, Tehsil Akhnoor in different khasra numbers. Thus a major portion of the subject matter of the suit was to be retained by the plaintiffs/petitioners herein. The petitioners have challenged the compromise decree, but at the same time, they have done so only to the extent of retention of the portion of land by the predecessor-in-interest of the respondents. The petitioners desire to enjoy part of the compromise decree, which favours them, but they seek to challenge the compromise decree to the extent it protects rights in respect of certain portion of the suit land in favour of the defendants. They cannot approbate and reprobate at the same time by accepting some terms of the compromise and rejecting the other terms of the same. 8. In fact the conduct of the petitioners in the whole affair appears to be unreasonable. Admittedly whole land belonged to the predecessor-in-interest of the respondents who entered into agreement to sell with the petitioners. Without paying the whole of the sale consideration, the petitioners contemplate to become owners of the whole of the land. Therefore, the predecessor-in-interest of the respondents sought to cancel the agreement to sell, by filing a suit, in which he entered into a compromise with the petitioners thereby surrendering his proprietary rights in respect of major portion of suit land in favour of petitioners. His conduct in the matter has all along been more than reasonable. Hence the contention of the petitioners that there has been coercion exercised upon him, appears to be unacceptable. Thus, there is no prima facie case in their favour. 9. The petitioners may be right in submitting that FIR has been registered prior to the entering into compromise before the court of 2nd Additional Munsiff, Jammu. The said aspect of the matter does not have any bearing upon the outcome of the application for grant of interim injunction because of the manner in which the petitioners have conducted themselves by accepting a part of the terms of the compromise and challenging the other part. The said aspect of the matter does not have any bearing upon the outcome of the application for grant of interim injunction because of the manner in which the petitioners have conducted themselves by accepting a part of the terms of the compromise and challenging the other part. Keeping in view more than fair conduct of predecessor-in-interest of respondents, it cannot be stated that there was any coercion upon the petitioners. 10. There is yet another aspect of the matter, which is needed to be looked into by the trial court. The petitioners have challenged the compromise decree on the ground of coercion by filing a separate suit before the trial court. As per Order 23 Rule 3A of the CPC, there is a complete bar to filing of a suit to challenge a compromise decree, on the ground that the same is unlawful. Without expressing opinion as to whether the said bar is attracted to instant case, I feel that this aspect of the matter needs to be gone into by trial court at the appropriate stage. 11. In view of what has been discussed hereinabove, I do not find any ground to interfere with the impugned orders passed by the courts below. The petition lacks merit and is dismissed accordingly.