Md. Basit vs Md. Moosa
2021 Latest Caselaw 2899 Gua

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GAHC010005892012




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : CRP/224/2012

            MD. BASIT
            S/O- LT. MOHAMMAD ISA, R/O- METRO HOTEL, A.T. ROAD, TINSUKIA,
            DIST.- TINSUKIA, ASSAM.



            VERSUS

            MD. MOOSA
            S/O- LT. MOHAMMAD IBRAHIM, R/O- OLD FISH MARKET ROAD, DAILY
            BAZAR, TINSUKIA, DIST.- TINSUKIA, ASSAM.



Advocate for the Petitioner   : MR.P J SAIKIA

Advocate for the Respondent : MR.A DEY

BEFORE HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 16-11-2021

JUDGMENT & ORDER (ORAL) Heard Mr. RS Mishra, learned counsel for the petitioner. None appears for the respondents, when the matter is called upon.

2. The cause-list shows the names of Mr. R Sarma, Mr. H Deka, Mr. M Hussain Page No.# 2/12

and Mr. A Dey to be learned counsel for the respondents. As the learned counsel for the respondents did not appear before the Court, inspite of the matter being repeatedly called, we required the Registry to inform the aforementioned learned counsel to appear before the Court. Inspite of being informed, none appears, in the circumstance and also taking note that the revision is of the year 2012, we have no other option but to proceed in the matter in the absence of the learned counsel for the respondents.

3. T.S. No.21/2000 was instituted by the predecessor-in-interest of the present petitioner namely Mohammad Isa against the respondent Mohammad Moosa for a declaration that the plaintiff is the lawful joint owner of the suit property described in the schedule and for a declaration that the plaintiff is entitled to a fixed share of Rs.3000/- per month in respect of the income that would arise from the hotel business and for partition of the suit property as described in the schedule etc.

4. In the plaint, it has been averred that the plaintiff Mohammad Isa and the defendant Mohammad Moosa are both sons of Md. Ibrahim and they had inherited several landed property from their deceased father and on his death, both the plaintiff and defendant jointly became the owner of such properties by right of inheritance. The plaintiff had instituted the suit in respect of the plot of land measuring 0bigha, 1 katha and 3 lechas of Dag No.3174 of P.P No.1043

under Tinsukia Mouza in the Tinsukia Town, 1 st Khanda. The plaintiff averred that their deceased father Md. Ibrahim had constructed an Assam Type two- storied house on the aforesaid plot of land for residential purpose but, however, Page No.# 3/12

he continued to reside at his old residence at Old Fish Market Road, Daily Bazar, Tinsukia, where he died in the year 1974. It was further averred that on the death of the deceased, the plaintiff and the defendant became the joint lawful owners of the landed property. In the year 1981, the parties to the suit, which has to be understood to be the plaintiff and the defendant, had renovated the aforesaid house and started a hotel business in the name and style of Hotel MIM. It was further averred that there was an agreement between the plaintiff and the defendant that the defendant shall pay a fixed amount of Rs.3000/- per month to the plaintiff in respect of the hotel business and in doing so the defendant shall bear all such expenses of maintenance of the furniture, fittings etc with regard to the business. When the defendant had failed to pay the fixed share of Rs.3000/- from the hotel business after 1998, the plaintiff instituted TS No.48/1998.

5. The plaintiff instituted T.S. 48/1998 for a declaration for recovery of money from the defendant. The defendant entered appearance and in his written statement averred that the plaintiff Mohammad Isa had not inherited all the properties of their deceased father Md. Ibrahim and that Md. Ibrahim during his lifetime has disposed of some of the properties by various modes of transfer to different persons. The defendant also denied that the deceased father had constructed an Assam Type two-storied house. In the written statement, it is averred that the Assam Type two-storied house was in a dilapidated condition, a partnership firm took over the property in lease in 1976 and had done extensive repair in the building and started the business of Hotel Mim. But, however, a stand has been taken in the written statement that the land and the building over which M/s. Hotel Mim was located remained a joint property of the parties Page No.# 4/12

to the suit and subsequently a mutual settlement was arrived between the parties by which the properties relating to Metro Market and Metro Hotel became the absolute property of plaintiff Mohammad Isa and Hotel Mim became the absolute property of the defendant Mohammad Moosa.

6. Be that as it may, during the pendency of the T.S. No.21/2000, a joint application was made by the plaintiff Mohammad Isa and the defendant Mohammad Moosa on 25.07.2007. The joint application provides as extracted:

"Most Respectfully Sheweth:-

1. That the plaintiff filed the instant suit against the defendant for a declaration that the plaintiff and defendant are joint owners of the suit property being land and the house standing thereon and measuring 0 Bigha 1 Katha 3 Lusa covered by Dag No. 3174 of P.P. no 1043 of Tinsukia Town, Sheet no 7, Tinsukia Mouza, Tinsukia district and for his 50% share in the hotel business of M/s Hotel Mim etc.

2. That the intervention of the relatives and well wishers of the parties herein the dispute being the subject matters of the suit is settled as below.

3. That the suit property, being land and the house standing thereon and measuring 0 Bigha 1 Katha 3 Lusa covered by Dag No. 3174 of P.P. no 1043 of Tinsukia Town, Sheet no 7, Tinsukia Mouza, Tinsukia district and situated at Gopinath Bordoloi road, Tinsukia is declared to be absolute property of Md. Dawud Moosa son the defendant. The plaintiff has no interest in the firm of M/s Hotel Mim.

4. That the plaintiff shall not have any right, title and interest in the suit property and in the business of M/s Hotel Mim.

5. That it is submitted that a decree is passed to meet the end of justice as per the settlement agreed to as herein stated.

6. That it is submitted that the contents of the petition be made part Page No.# 5/12

of the decree."

7. In the said joint application, the prayer was for passing necessary order decreeing the suit on terms of settlement agreed to by the plaintiff and the defendant. No other deed of compromise or any other application is noticed to have been submitted and the aforesaid joint application was under the verification of both the plaintiff and the defendant. Consequent thereof, the order dated 25.07.2007 was passed by the learned Civil Judge at Tinsukia, which is extracted as below:

"Case record is put up today.

Seen the joint compromise petition No. 1767/07 jointly filed by the plaintiff and defendant stating that they settled the dispute outside the court at the instance of their relatives and well wishers and as such, prayed for passing a decree as per terms and conditions noted therein.

It is stated in the joint compromise petition that the plaintiff has no interest in the suit property- HOTEL MIM and it is declared to be the absolute property of Md. DAWUD MOOSA, son of the defendant.

Heard both the parties and their engaged lawyers. Both the parties admitted before this court that they settled their dispute as per terms and conditions noted in the compromise petition vide marked document - 'X'. being satisfied, the suit is decreed on compromise as per terms and conditions of the compromise petition marked document- 'X'. the document marked -'X' shall form part of the decree.

Suit is disposed of the admission.

Draw a compromise decree accordingly."

8. The order dated 25.07.2007 reveals that the learned Court had heard the parties and their engaged lawyers and that both the parties have admitted before the Court that they have settled their dispute as per terms and conditions noted in the compromise petition which is marked as document 'X' and infact Page No.# 6/12

the joint application referred above is the document 'X'. Accordingly, it was provided that the suit was disposed on the admission.

9. We have specifically taken note that in the joint application, the jurisdiction under which such application was filed had not been stated meaning thereby that there is no indication that it is an application under Order 23 Rule 3 of the CPC. Subsequently, the plaintiff Mohammad Isa has submitted an application under the proviso to Order 23 Rule 3 of the CPC for a recall of the order dated 25.07.2007. Proviso to Order 23 Rule 3 of the CPC provides 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 and no 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. The proviso is again followed by the explanation which provides that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of the said Rule.

10. The said application of the plaintiff Mohammad Isa made under the Order 23 Rule 3 CPC was registered as Misc.(J) Case No.36/2008. In the application purportedly made under the proviso to Order 23 Rule 3 read with Section 151 of the CPC, the plaintiff had taken the stand that the draft copy of the Deed of Family Arrangement was corrected and settled by the defendant and the plaintiff had bestowed his faith and trust upon the defendant for execution and registration of the Deed of Family Arrangement.

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11. In paragraph 5 of the application, it is stated that the defendant had assured the plaintiff and the other family members that the Deed of Family Arrangement would be executed and registered after withdrawal of the Title Suit No.21/2000 and the earlier Title Suit No.48/1998. It is the case of the plaintiff that after the compromise order was passed by the Court, the attitude of the defendant had changed and was refusing to further acknowledge the terms of the compromise.

12. The application of the petitioner purportedly under the proviso to Order 23 Rule 3 was given a final consideration by the learned Civil Judge, Tinsukia in the order dated 19.11.2011. The learned Civil Judge, Tinsukia after taking note of the rival submission made by the plaintiff and the defendant arrived at the conclusion that it is a well settled principle that where both the parties filed a compromise memo settled between them in order to get a compromise decree, it can be held that the parties understood the compromise memo before filing the same in court.

13. The Court further arrived at a finding that in the instant case, the parties admittedly are joint owners of the suit property and a compromise was reached between them in respect of the subject matter of the suit, and, therefore, when the plaintiff had extinguished his right over the suit property and had created a right in favour of the defendant, the same cannot be said to have been done to avoid payment of stamp duty and to frustrate the law relating to registration. The learned Civil Judge arrived at his further conclusion that both the plaintiff and defendant are descendants of a common ancestor and had arrived at a family settlement and had filed a draft for a bona fide compromise decree and Page No.# 8/12

as by considering all materials had recorded its satisfaction and accordingly the compromise decree was passed, therefore, the Court was of the view that the decree in question is not hit by the provision of Section 17(b)(1)(c)of the Registration Act. In other words, there is no requirement of any registration. Being aggrieved, the present revision petition under Section 115 read with Section 151 of the CPC with further reference to Article 227 of the Constitution of India has been filed.

14. We have taken note of the aspect that the joint application made by the plaintiff and the defendant on 25.07.2007 which resulted in the order dated 25.07.2007 of the learned Civil Judge apparently did not contain the jurisdiction under the CPC under which the same was filed. The language of the joint application shows that the plaintiff has instituted the suit for 50% share of the hotel business of Hotel Mim and that there be a declaration that the suit property, the absolute property of the defendant Mohammad Moosa and that the plaintiff had interest in the firm M/s. Hotel Mim and further the plaintiff shall have no right title and interest over the suit property in the business of the hotel M/s. Hotel Mim.

15. The grievance raised by the plaintiff in his application purportedly under the proviso to Order 23 Rule 3 was that firstly the deed of agreement between the parties was arrived without due and appropriate knowledge of the plaintiff as regards the implication of such deed of agreement and secondly, after the compromise decree was arrived at, the defendant was not honoring the requirement of such decree. Under such circumstances, a question would arise as to whether an application under the proviso to Order 23 Rule 3 would be Page No.# 9/12

maintainable under such circumstances or in other words, where the learned Civil Judge could have exercised its jurisdiction under Order 23 Rule 3 of the CPC for such purpose.

16. Mr. RS Mishra, learned counsel for the petitioner refers to the provisions of the Supreme Court in Banwari Lal Vs. Smt. Chando Devi and Another reported in AIR 1993 SC 1139. The learned counsel relies upon the provisions set forth by the Supreme Court in paragraph 13 of the said judgment which extracted as below:

"As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23 or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of R. I A of Order 43 of the Code".

17. By relying upon such provision, the learned counsel justifies that the application purportedly made under the proviso to Order 23 Rule 3 would be maintainable in the present circumstances.

18. Order 23 of Rule 3 of the CPC is for compromise of a suit which provides that where it is proved to the satisfaction of the Court that the 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 satisfies the plaintiff in respect of the whole or in 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. The jurisdiction of the Court to pass the Page No.# 10/12

compromise decree under Order 23 Rule 3 of the CPC would be subject to the satisfaction of the Court that the suit has been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties. Once the Court exercises its jurisdiction under Order 23 Rule 3 and arrives at its satisfaction that the suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the jurisdiction of the Court to entertain the dispute any further under the aforesaid provision comes to an end. What has been provided by the Supreme Court in paragraph 3 of its judgemtn in Banwari Lal (supra) is that in the facts and circumstances of the matter before the Supreme Court, the application under Order 23 of Rule 3 of the CPC was not signed by both the parties, in the circumstance, the party who had not signed the application under Order 23 of Rule 3 of the CPC, made an application before the Court which had passed the compromise decree to recall the compromise decree and the Court upon being satisfied by its appropriate order had recalled the order disposing of the suit in terms of the petition for compromise. It is only in the aforesaid circumstance, the Supreme Court had made its observation that the same could have been done even in exercise of the jurisdiction under Order 23 Rule 3 of the CPC. But the facts in the present case would be entirely different inasmuch as, the entire allegation of the plaintiff petitioner is that there is a defect in the compromise agreement between the parties to the extent that it was arrived at without the plaintiff having adequate and appropriate knowledge about the implication of such compromise that was arrived at. If such is the situation of the plaintiff petitioner, the remedy would lie elsewhere and not in an application under the proviso to Order 23 of Rule 3 of the CPC.

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19. From such point of view, we have to understand that the application made by the plaintiff petitioner under the proviso to Order 23 Rule 3 was misconceived and was made before a forum which did not have the jurisdiction to entertain such application. It being so, we also have to understand that all such conclusion that the learned Civil Judge may have arrived at in such application by the order dated 19.11.2011 in Misc.(J) Case No.36/2008 would also have to be construed to be a finding which was arrived at without any jurisdiction.

20. In this respect, we also take note of another pronouncement of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others reported in AIR 1954 SC 340, in respect of an issue as regards jurisdiction of a Court on the basis of the stamp valuation as to whether the order passed by the Court without jurisdiction would be a nullity in law. On the question of jurisdiction on the basis of stamp valuation, the Supreme Court had arrived at its conclusion, it can either be a case of under-valuation or over-valuation in a given proceeding. The question as to whether any order passed in a proceeding allegedly without jurisdiction as because of either under-valuation or over- valuation of the proceeding would have to be looked from the perspective as to whether any prejudice would be caused to the party which had instituted such proceeding. Without being exhaustive, the Supreme Court provided that if there was no proper adjudication in a suit or the proceeding that had resulted in injustice or that the procedure adopted because of the incorrect invocation of jurisdiction required the Court to adopt a different procedure, it would be construed that prejudice existed.

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21. In the instant case, we take note that if the grievance of the plaintiff petitioner is that the compromise deed of agreement was arrived in a manner other than a lawful manner as alleged by the plaintiff petitioner and the forum where the grievance was raised did not have the jurisdiction to determine such question, we are of the view that prejudice can be said to have been caused to the petitioner. From such point of view also, we are inclined to declare all findings and conclusions arrived at in the order dated 19.11.2011 in Misc.(J) Case No.36/2008 by the learned Civil Judge, Tinsukia to be also without any jurisdiction.

22. The revision petition stands allowed in the terms as indicated hereinabove.

23. The plaintiff petitioner would be at liberty to invoke any other appropriate provision of law, if available and permissible under any other law.

JUDGE

Comparing Assistant