ORDER : Heard Smt.Pallavi Pachhapure on behalf of Sri.F.V.Patil, learned counsel for the revision petitioners and Sri.Sangram S Kulkarni and Sri.V.R.Datar, learned counsels for respondents. 2. Though this matter is listed before the Court as CRP No.1071/2010, material on record would go to show that since two orders were challenged it has been mentioned as two different numbers as CRP No.1071/2010 and CRP No.1073/2010. Hence, both the revision petitions are taken up for disposal. 3. Present revision petitions are filed challenging the order passed in Misc. No.43/1998 and Misc. No.26/2002 passed by the Principal Senior Civil Judge, Gokak dated 21.12.2009. 4. Brief facts of the case are as under: 4.1 Original Suits in O.S.No.60/1994 and O.S.No.61/1994 were filed seeking declaration that plaintiffs are the owners of suit properties and for consequential relief of injunction. 4.2 Suits were ended in a compromise by filing an application under Order XXIII Rule 3 read with Section 151 of Code of Civil Procedure in both the suits. Said compromise was accepted by the learned trial Judge. 4.3 After lapse of sufficient time, in the year 1998 and in the year 2002, defendants filed applications seeking recall of compromise decree on the ground that fraud has been played and they were not made known about the contents of the compromise petition and sought for setting aside the compromise decree with a prayer to restore the suits and permit the defendants to contest the suits on merits. 4.4 Those applications were numbered as Misc. No.43/1998 and Misc. No.26/2002. Both the applications were contested. By order dated 21.12.2009, both the applications came to be allowed holding that there are sufficient reasons to recall the compromise decree. 4.5 Before passing the order on 21.12.2009, enquiry was held on the applications and parties have also placed their evidence. 4.6 Defendants who wanted the compromise decree to be set aside, made a specific allegation that their advocate did not properly explain the contents of the compromise petition and parties were under the impression that compromise is being entered into in respect of land in revenue Sy.No.245/5 of Pamaldinni village of Gokak taluk. But actual compromise was in respect of land in revenue Sy.No.245/6A and 245/6B. Therefore, the learned trial Judge recorded a specific finding in paragraphs No.15 and 16 of the impugned order as under: “15. But actual compromise was in respect of land in revenue Sy.No.245/6A and 245/6B. Therefore, the learned trial Judge recorded a specific finding in paragraphs No.15 and 16 of the impugned order as under: “15. Coming to the merits of the contentions of the petitioners, the petitioners have admitted that they were present before the court when this compromises were recorded and have also admitted that they have put the LTM to the compromise petition. The contention of the petitioners is that the averments of the plaint in O.S.No.60/94 and 61/94 with regard to actual possession of 245/5 and 245/4 by the petitioners and actual possession of 245/6A and 245/6B by the respondents is itself wrong. They have also contended that by representing that the compromise was in respect of 245/5 of the respondents, the signature was taken and they were not aware that 245/6A and 245/6B were involved in those suits. PW-1 in his Chief-Examination has stated the same and in the cross-examination he has denied the contrary suggestions. In the evidence of RW-1, he has stated that R.S.No.245/5 is mentioned in the sale deed of the property purchased by his father but it was 245/6 and there was wrong entry of the survey number in the respondents records and also the sale deed. The sale deed of the respondents is produced by the petitioners as Ex.P9. Admittedly, the respondents have purchased the property in 245/5 from Siddawwa and Mallawwa. In Ex. P9 sale deed, the survey number of the property is clearly mentioned as 245/5. The respondents contended that this entry of sv. No.245/5 is wrong and it ought to be 245/6, but at the relevant time in the year 1976, the 245/6 was measuring only 1 acre 25 guntas and alluvial in 01 acre 01 guntas in 245/6A and Sy.No.245/6 was not standing in the name of Mallawwa and Siddawwa. There are no documents produced before the court to show that Yallappa or Irappa or his wife and daughter Mallawwa and Siddawwa were the owners of 245/6. The records produced by the petitioners as Ex.P10 to P28, disclose that sy. No.245/5 was standing in the name of Yallappa and thereafter it was standing in the name of Irappa and it came to Mallawwa and thereafter they executed Ex.P9. This Gurusiddappa is the father of the respondent Nos. 1 to 3. The name of the respondent Nos. The records produced by the petitioners as Ex.P10 to P28, disclose that sy. No.245/5 was standing in the name of Yallappa and thereafter it was standing in the name of Irappa and it came to Mallawwa and thereafter they executed Ex.P9. This Gurusiddappa is the father of the respondent Nos. 1 to 3. The name of the respondent Nos. 1 to 3 is also entered to R.S.No.245/5 during his life time. All these documents produced before this court by the petitioners clearly disclose that from the time of Yallappa till the entry of the name of respondent Nos. 1 to 3, the property of Yallappa and his heirs and successors is shown as 245/5 Even in the sale deed Ex. P9 the property is shown as 245/5. There are no documents produced before the court by the respondents to show that though 245/5 was entered in the name of Yallappa and also his successors, the property actually in possession of Yallappa was 245/6. Hence, the averments in the plaint of O.S.No.60/94 that the property of 245/6A and 245/6B belonged to respondents of this case is prima facie wrong. Since the respondents and the predecessors were never the owners of 245/6A and 6B, they cannot contend that they are the owners of 245/6A and 6B and they cannot claim the relief of declaration in O.S.NO.60/94. Similarly, R.S.NO.245/4, 245/6A and 245/6B are the properties of the petitioners. The R.S.No.245/3 and 245/4 are purchased in the name of petitioners from Balappa and others on 13-4-1940 and even 245/6 was sold to the petitioners and it was allotted to Gadigeppa, Laxman and Shabu. The documents like mutation entries and the RoR produced before the court by the petitioners clearly disclose that 245/5 and 245/6 were the properties of the petitioners. When they are the properties of the petitioners as per the records and there are no documents to show that the petitioners were in possession of 245/5 at any point of time, the averments in the plaint in O.S.No.61/94 stating that they are the owners of 245/5, but their name is entered in 245/6 cannot be accepted. The respondents have not produced any materials before the court to show that there was some mistakes in the entries of the survey numbers of the properties belongs to the petitioners and respondents. The respondents have not produced any materials before the court to show that there was some mistakes in the entries of the survey numbers of the properties belongs to the petitioners and respondents. About such wrong entry of the survey number, it is only said i in the plaint. Hence, prima facie, the averments of the plaint in O.S. Nos.60/94 and 61/94 itself is not depicting true facts. Moreover, RW-1 in the cross-examination has admitted the entire case. He has admitted that in respect of property purchased by his father proper number was mentioned and they have never made enquiry and they have not sought for correction of the sale deed etc. He has even admitted that the name of his father was entered in the revenue records to the property produced by him. As per Ex. P9, 245/5 is the property purchased by the father of RW-1. Even the RW-1 has stated that since the date of purchase and till the date of decree R.S.No. 245/5 was in their name and 245/6A and 245/6B were in the name of the petitioners. He has even admitted that Allappa has purchased 245/4 in the name of his sons ie. petitioners and 245/5 was standing in the name of Mallawwa. Mallawwa and Siddawwa have together sold 245/5 to the father of RW-1. He has even admitted that as per the sale deed his father's name was entered. He has even admitted that sy No.245/6 is on the southern side of 245/5. He has expressed ignorance to the suggestion that 245/6 has come to Lakkappa and from him it came to Kashawwa. These admissions and the statement of the witness in cross-examination would further strengthen the case of the petitioners, that 245/5 was the property which was purchased by father of RW-1 and they were in possession of the said property and there was no such mistake in the sale deed or in the revenue records, which was necessary to be corrected as done by the compromise decree in O.S.No.60/94 and 61/94. The witness has even admitted that the Village Accountant had informed that the compromise is in respect of 245/5 and they have admitted. This also proves the allegations made by the petitioners in their case. The witness has even admitted that the Village Accountant had informed that the compromise is in respect of 245/5 and they have admitted. This also proves the allegations made by the petitioners in their case. In the presence of these admissions of RW-1 and also the various documents that have been produced by the petitioners, it is clear that 245/5 was the property which was purchased by the father of the respondents and it was not 245/6A and the father of the respondents and their predecessors in title were in possession of 245/5 and it was not 245/6A and 245/6B. The R.S.No.245/6A and 245/6B were belonging to the petitioners and it was in their possession and enjoyment. If there was any mistake in the sale of the respondents as contended by them in their objections, they would have gone for correction deed as per law. If the parties were really exchanging the properties i.e. the property of petitioners was to be exchanged with the property of the respondent as done by the disputed compromise decree, they would have got executed the exchanged deeds. Since there is no mistake in the records as alleged by the respondents, there was no occasion for the parties to file O.S.No.60/94 and 61/94 for declaration in respect of the property, which does not actually owned by them. Then they entered into compromise by filing application U/o.23 Rule 3 of C.P.C.. The petitioners have contended that they were illiterate and they were mis-represented by stating that the compromise was in respect of 245/5. This is even admitted by the RW-1 in his cross-examination. Under such circumstances, though the exercise of fraud on the respondents is not proved, it is clear that the compromise arrived was under mis-representation of the facts and there was no mistake in the records of the property and parties were separately enjoying their properties. 16. The averments of the plaint of both the suits are also not depicting the real picture and the compromise arrived was not lawful one. In view of the decisions cited above, the court cannot accept the compromise which is unlawful. Even if there was real compromise entered between the parties, the parties can go for execution of registered exchange deed and cannot go for compromise decree for exchange of the property between them. In view of the decisions cited above, the court cannot accept the compromise which is unlawful. Even if there was real compromise entered between the parties, the parties can go for execution of registered exchange deed and cannot go for compromise decree for exchange of the property between them. One more circumstance to show that R.S.No.245/5 was the property, that was belonging to the respondents, the petitioners have produced the copy of the judgement in O.S.No. 222/84 and the decree passed therein and also subsequent compromise decree passed in the said suit. It appears that this O.S.No.222/84 was filed for declaration of right of way in 245/5 by the petitioners against the present respondents and it was un-contested and was decreed. Subsequently, the case was reopened wherein both the parties, the present petitioners and respondents have entered into compromise and the right of way of the present petitioners in 245/5 of the respondents was accepted by the present respondents. Even this litigation of an un-disputed point of time of 1984 to 1990 would also disclose that it was the 245/5 which was belonging to the respondents and not 245/6. Under such circumstances, the petitioners are successful in proving that both the suits in O.S.Nos.60/94 and 61/94 were filed and compromised by misrepresentation to the petitioners that it is in respect of Sy No.245/5. It is clear that the parties have not entered into compromise with full understanding of the facts and the compromise of both the suits are not even lawful. Hence, the compromise arrived in both the suits cannot be accepted. The mutation entries of the subsequent period produced by the respondents disclose that the names of the petitioners and respondents have been entered on the basis of this compromise decree. Since the compromise decree is not lawful, any subsequent entries on the basis of such decree cannot have any legal effect. By entering into these compromise, the petitioners cannot relinquish their right in R.S.No.245/6A and 6B to the respondents and the respondents also cannot relinquish their right in favour of the petitioners in R.S.245/5. Similarly, the petitioners cannot acquire the right in R.S.No.245/5 by virtue of compromise and the respondents cannot acquire the title to R.S.No.245/6A and 245/6B by entering into such compromise, without there being any registered document to that effect. In 2004(2) KCCR 813 (Naganna Vs. Similarly, the petitioners cannot acquire the right in R.S.No.245/5 by virtue of compromise and the respondents cannot acquire the title to R.S.No.245/6A and 245/6B by entering into such compromise, without there being any registered document to that effect. In 2004(2) KCCR 813 (Naganna Vs. Shivanna), it is held that when once the parties by oral partition have divided the properties, the joint character of the property comes to en end and each of the party would become exclusive owner of the share allotted to him. If there is any further transaction of exchange of properties between the parties it is to be done necessarily by registered document under Section 17 of the Registration Act. Hence even the properties of sharers of the joint family cannot be exchanged without registered document, after partition. Under such circumstances, the petitioners and respondents, who are from different families and are claiming right through different persons, cannot exchange their properties without registered document. Looking from any angle, both the compromises are not valid and are necessary to be set aside. Hence, the compromise decree dated 13-9-1994 passed in O.S.Nos. 60/94 and 61/94 are to be set aside and the suit is to be restored and is to be heard and decided on merits by giving opportunity to both the parties to represent their case. Accordingly, these point No.1 is answered partly in the affirmative and point No.2 is answered in the Negative.” 5. The said order is assailed in these revision petitions. 6. Smt.Pallavi Pachhapure, learned counsel for the petitioners, reiterating the grounds urged in the revision petitions, vehemently contended that compromise was duly recorded by the learned trial Judge as could be seen from the order sheet wherein the learned trial Judge has specifically mentioned that parties have accepted the compromise and therefore, the Court accepted the compromise. 7. She further contended that when once the party has accepted the compromise, there was no impediment for the Court to decree the suit in terms of the compromise petition and the same has been done by the Court while disposing O.S.No.60/1994 and O.S.No.61/1994 and decree came to be passed. 8. 7. She further contended that when once the party has accepted the compromise, there was no impediment for the Court to decree the suit in terms of the compromise petition and the same has been done by the Court while disposing O.S.No.60/1994 and O.S.No.61/1994 and decree came to be passed. 8. She also submits that after a long gap of time, making allegations against the advocate, the present applications were filed and there is material evidence on record which would go to show that parties have subscribed their thumb impression mark on the compromise petition after understanding the contents thereof. 9. Therefore, learned trial Judge allowing the Miscellaneous Applications No.43/1998 and 26/2002 is thus illegal and sought for allowing the revision petitions. 10. Per contra, Sri.Sangram S Kulkarni, learned counsel representing the contesting respondents contended that admittedly parties have subscribed their left thumb impression. In such event, the trial Court before accepting the compromise petition, had to satisfy itself that parties have understood the terms compromise and should have enquired as to whether compromise was voluntary, without undue influence or coercion. No such satisfaction is forthcoming on the part of the trial Court while accepting the compromise as could be seen from the order sheet of the trial Court while accepting the compromise petition. 11. He further pointed out that parties have placed sufficient evidence on record that they were under the impression that compromise was entered into in respect of land in Sy.No.245/5 of Pamaldinni village of Gokak taluk. But, what has been actually incorporated in the compromise petition is in respect of land in Sy.No.245/6A and 245/6B. Thus, it is clear that there is prima facie fraud played on the illiterate defendants which has been rightly appreciated by the learned trial Judge in the impugned order in paragraph Nos.15 and 16. 12. Therefore, there is no merit in the revision petitions and sought for dismissal of the same. 13. In view of the rival contentions of the parties, this Court perused the material on record meticulously. 14. On such perusal of material on record, this Court is of the considered opinion that power vested in the Court under Order XXIII Rule 3A has been rightly exercised by the learned trial Judge in the case on hand for more than one reason. 15. 14. On such perusal of material on record, this Court is of the considered opinion that power vested in the Court under Order XXIII Rule 3A has been rightly exercised by the learned trial Judge in the case on hand for more than one reason. 15. Firstly, the defendants were illiterate persons and they have only subscribed their left thumb impression to the compromise petition. The parties have placed oral evidence on record. It is a specific case of the defendants that they were made to believe that compromise is entered into in respect of land in Sy.No.245/5 of Pamaldinni village of Gokak taluk. Compromise petition, on the contrary is in respect of land in Sy.No.245/6A and 245/6B of Pamaldinni village of Gokak taluk. 16. Mere presentation of compromise petition would not ipso facto relieve the responsibility cast on the Court in accepting the compromise petition. 17. In this regard, it is just and necessary for this Court to cull out the provisions of law which would govern the compromise petition under Order XXIII Rule 3 of CPC. “3. Compromise of suit.—Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfied the plaintiff in respect to the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:] [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.— An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not he deemed to be lawful within the meaning of this rule.]” 18. On careful reading of the above provision, it is crystal clear that the Court is bound to satisfy itself that parties have understood the terms of compromise before accepting the compromise. 19. How to get satisfied that proposed compromise is proper or not cannot be defined with a straight jacket formula. But, broadly stated that if parties are illiterate, an onerous responsibility is cast on the Court to explain the terms of compromise in the language known to them and make them aware as to effect and consequence of entering into compromise. 20. In the case on hand, the suits were filed for the relief of declaration. On the very first day of appearance of defendants, a compromise petition came to be presented. The compromise petition mentions about land in Sy.No.245/6A and 245/6B of Pamaldinni village of Gokak taluk. 21. It is the contention of defendants that what was being represented to them before they subscribed their left thumb impression to the compromise petition is that compromise is in respect of land in Sy.No.245/5 of Pamaldinni village and not Sy.No.245/6A and 245/6B. 22. Further, it is also noticed that the compromise is in respect of O.S.No.61/1994 is concerned. 23. It is also pertinent to note that both the suits are filed on 11.08.1994, on which date the Court has issued summons returnable by 13.09.1994. It is further found from the records that on the very same day, defendants have entered appearance and compromise petition is filed. 24. Hardly there was any reasonable time for the parties to understand what is the relief in the suits and why they want to compromise the suit relief on the very first date of suit where the summons were returned is a question that remains unanswered. 25. These aspects of the matter have been viewed cumulatively by the learned trial Judge and formed an opinion that there is sufficient force in the contentions urged on behalf of respondents/defendants in making out a case that compromise was not duly entered into and set aside the compromise decree in the impugned order. 26. It is settled principles of law that there is a clear difference between subscribing thumb impression or signature to the document or proper execution thereof. 27. 26. It is settled principles of law that there is a clear difference between subscribing thumb impression or signature to the document or proper execution thereof. 27. There may be a case where the party admit his signature on a particular document (in the case on hand on the compromise petition, left thumb impression is admitted by the defendants), but that itself would not be sufficient enough to hold that there was due execution of compromise petition. 28. Execution has got a higher meaning inasmuch as the party must be made aware of what is the consequence of subscribing signature on a particular document. 29. Therefore, the learned trial Judge was duty bound to explain the parties before accepting the compromise petition and decreeing the suit, more so, when the defendants have appeared on 13.09.1994 and on the very same day compromise petition came to be filed. 30. The allegations are made by the defendants with regard to their advocate who represented them when the compromise is being affected in respect of land in Sy.No.245/5 of Pamaldinni village of Gokak taluk and what has actually been decreed is in respect of land in Sy.No.245/6A and 245/6B. Therefore, the same has been rightly appreciated by the learned trial Judge in the impugned order and has set aside the compromise decree and restored the suits for disposal in accordance with law. 31. When the language applied in the provisions of Order XXIII of CPC as referred to supra is carefully analysed, there is an onerous responsibility on the judge before he accepts the compromise. The role of judge who accepts the compromise is not mechanical. There must be proper application of mind before satisfaction is recorded in accepting the compromise and dispose of the suit. Satisfaction of the court envisaged in the provision of law necessarily includes the important or pivotal role to be played by the judge to explain the contents of compromise and consequences thereof. 32. There must be proper application of mind before satisfaction is recorded in accepting the compromise and dispose of the suit. Satisfaction of the court envisaged in the provision of law necessarily includes the important or pivotal role to be played by the judge to explain the contents of compromise and consequences thereof. 32. Keeping above cardinal principles in the background, when the facts of the case are revisited, this Court is satisfied that having regard to the attendant circumstances, the learned trial Judge who passed the impugned order has exercised the power vested in him in recalling the compromise decree especially taking note of the fact that on the very date of return of summons compromise petition came to be filed before the Court as there is no satisfaction entered by the then trial Judge who accepted the compromise petition as is found from the contents of the order sheet. 33. Further, if the suits are allowed to be contested on merits, differences, if any, would be thrashed out by placing necessary evidence by the parties. Suits are also one for declaration. 34. Therefore, in the considered opinion this courts, the learned trial Judge who passed the impugned order has rightly set aside the compromise decree. 35. Accordingly, from the above discussion, this Court is of the considered opinion that the grounds urged in the revision petitions are hardly sufficient to interfere with the well reasoned impugned order. 36. In view of the foregoing discussion, following order is passed: ORDER (i) Civil Revision petitions are meritless and hereby dismissed. (ii) No order as to costs. (iii) It is made clear that this Court has not expressed any opinion on the merits of the matter while passing this order and any observations made during the course of this order is only for the purpose of disposal of these revision petitions. (iv) Parties are at liberty to canvass their respective contentions before the trial Court. (v) Parties in O.S.No.60/1994 and O.S.No.61/1994 shall appear before the trial Court positively without further notice on 04.03.2024. (vi) On the very same day, the defendants in both the suits who are respondents in these revision petitions shall file their written statements. (vii) Thereafter, the learned trial Judge shall dispose of the suits on or before 31.12.2024. (viii) Needless to emphasise that the parties shall cooperate for the same.