In view of the aforesaid facts and submissions on behalf
of the appellants and the plaintiff-respondents, it is manifest that the
terms of the compromise envisaged in the compromise petition dated
12.12.2002 have been accepted by the parties thereto according to
which the plaintiff-respondents are entitled only to 8 katha 10 dhur of
land as mentioned in schedule-II of the compromise petition.
Therefore, the declaration by both the courts below holding the
plaintiffs to be entitled to 1/4th share in the suit properties are clearly
against the terms of the compromise.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.201 of 2008
Ganga Sah son of late Beni Sah.
V
Smt. Kalawati Devi, daughter of late Ganesh Sah,
CORAM: HONOURABLE MR. JUSTICE V. NATH
Citation;AIR 2014 (NOC) 513 Patna
Date: 23-01-2014
The substituted heirs of the defendant no. 1 Smt.
Marachhi Devi who died during the pendency of the appeal in the
court below are the appellants in this second appeal.
The suit has been filed by the plaintiff-respondents for
partition of their share in the suit properties mentioned in schedule-I
of the plaint and also for declaring the deed of gift dated 16.11.1998
in favour the defendant nos. 6 and 7 executed by the defendant no. 1
as null and void. The written statement in the suit was filed by the
defendant no. 1. In their separate written statements, the defendant
nos. 2 to 5 supported the case of the plaintiffs and the defendant nos. 6
and 7 supported the case of the defendant no. 1. However, after filing
of the written statement, the defendant nos. 2 to 5 did not participate
in the further proceeding of the suit which proceeded against them
under Order 17 Rule 2 C.P.C.
During the pendency of the suit, however, the parties
settled their dispute and a compromise petition was filed jointly by the
plaintiffs, defendant no. 1 and defendant no. 6 and 7 on 12.12.2002.
The said compromise was accepted by the court and the suit was
disposed of in terms of the compromise by the judgment and decree
dated 12.05.2003 and the compromise petition was directed to form
part of the decree but it was further declared that the plaintiffs were
entitled to 1/4th share in the suit property. An appeal was filed by the
defendant no. 1 against the said judgment and decree asserting that the
decree declaring 1/4th share of the plaintiffs in the suit land and
allowing the plaintiffs to get that share carved out in the suit
properties was not in accordance with the agreed terms of the
compromise. The appellate court below, however, by the impugned
judgment and decree dismissed the appeal.
This appeal has been admitted for hearing on the
substantial question of law as to whether the judgment and decree
passed by both the courts below is against the agreed terms contained
in the compromise petition which has been jointly filed by the
plaintiffs and the contesting defendants in the suit.
Mr. S.K. Dwivedy, the learned counsel appearing on
behalf of the appellants, in support of the substantial question of law,
has submitted that by compromise, the plaintiffs have been allotted
the properties mentioned in schedule-II of the compromise petition
which is 8 katha 10 dhur of land in plot no. 167 of khata no. 17 of
village Pakri Khurd P.S. Gaunaha District- West Champaran and
similarly the defendant no. 1 has been allotted the properties
mentioned in schedule-I of the compromise petition. Further, the title
and possession of the defendant nos. 6 and 7 on the basis of the sale
deed in their favour by the defendant no. 1 have been accepted over
their purchased land. It has been therefore urged on this basis that
after accepting the said compromise and disposing of the suit in terms
of the compromise whereby the compromise petition has also been
directed to form part of the decree, the courts have committed error in
allowing 1/4th share to the plaintiffs in the suit properties instead of
holding that the plaintiffs are entitled only to the properties mentioned
in schedule-II of the compromise petition.
Mr. Jitendra Prasad Singh, the learned counsel appearing
on behalf of the plaintiff-respondents has accepted that by way of
compromise the plaintiffs have been allotted 8 katha 10 dhur of land
as mentioned in schedule-II of the compromise petition dated
12.12.2002 and therefore has submitted that the plaintiffs are entitled
to that much of the property out of the suit properties and the
defendant no. 1 (now deceased through L.R.) was also entitled to only
the properties mentioned in schedule-I of the compromise petition and
the defendant nos. 6 and 7 are also entitled to their purchased land
from the defendant no. 1.
Nobody has appeared on behalf of the respondent nos. 6
and 7 who were the defendant nos. 6 and 7 in the suit land and had
joined the compromise. It is also manifest from the judgment of the
trial court that the suit has proceeded against the defendant nos. 2 to 5
under Order 17 Rule 2 C.P.C. when they left participating in the suit
after filing their written statement. However, it has been accepted by
the learned counsel for the parties that in the compromise petition
itself, it has been clearly mentioned that the sale deed dated
16.11.1998 executed in favour of the defendant nos. 6 and 7 by the
defendant no. 1 is legal and valid document and the purchasers i.e.
respondent nos. 6 and 7 shall have their right, title and possession
over the lands purchased by them and the plaintiffs or the defendant
no. 1 shall have no concern with the said land.
In view of the aforesaid facts and submissions on behalf
of the appellants and the plaintiff-respondents, it is manifest that the
terms of the compromise envisaged in the compromise petition dated
12.12.2002 have been accepted by the parties thereto according to
which the plaintiff-respondents are entitled only to 8 katha 10 dhur of
land as mentioned in schedule-II of the compromise petition.
Therefore, the declaration by both the courts below holding the
plaintiffs to be entitled to 1/4th share in the suit properties are clearly
against the terms of thcomproe mise. The properties purchased by the
defendant nos. 6 and 7 have also been allowed to be retained by them
as purchasers in possession of the same. In this view of the matter,
there is no impediment in coming to the conclusion that both the
courts below have wrongly decreed the suit holding that the plaintiffs
to be entitled to 1/4th share in the suit properties which is clearly
against the compromise petition. Once after accepting the compromise
petition and directing the disposal of the suit in terms of the
compromise the courts below could have no jurisdiction to make out a
third case and allow 1/4th share to the plaintiffs in the suit properties.
The said direction is accordingly set aside.
The substantial question of law as framed is accordingly
decided in favour of the appellants. This appeal is allowed and the
judgment and decree passed by the courts below is modified to the
extent that the suit stands disposed of in terms of the compromise
which shall form part of the decree.
(V. Nath, J)
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