Bhagat Singh Thakur vs Bhagat Singh Thakur And Others Was ...
2022 Latest Caselaw 8367 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                 ON THE 11th DAY OF OCTOBER, 2022




                                                           .
                              BEFORE





             HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





             REGULAR SECOND APEPAL No. 159 OF 2021
Between:-

1. BHAGAT SINGH THAKUR S/O SH. MOTI
   RAM,


                    r        to
2. ANAND THAKUR S/O SH. BHAGAT SINGH
   THAKUR,

3. DIGVIJAY THAKUR, S/O SH. BHAGAT
   SINGH THAKUR,

    ALL RESIDENTS OF VILLAGE AND POST
    OFFICE ADHAL, TEHSIL ROHRU,
    DISTRICT SHIMLA, H.P.                   ...APPELLANTS/DEFENDANTS



    APPELLANT NO. 2 ANAND THAKUR
    PRESENT IN PERSON.

    (BY SH. ROMESH VERMA, ADVOCATE.)




    AND





1. SH. MOHD. MAQBUL SON OF SH. ABDUL
   AZIZ (DELETED)





2. MOHD. YUNUS SON OF MOHD. MAQBUL,

3. MOHD. ARIF SON OF SH. MOHD.
   MAQBUL,

4. MS.MULSUMA DAUGHTER OF SH. MOHD.
   MAQBUL,

5. MS.SALEEMA DAUGHTER OF SH. MOHD.
   MAQBUL,

    ALL RESIDENTS OF VILLAGE JUBERA,
    P.O. KALOTI, TEHSIL CHIRGAON,
    DISTRICT SHIMLA, H.P. PRESENTLY
    RESIDENT OF HOUSE NO. 320, PHASE-1,
    HOUSING BOARD COLONY, SAPROON,
    SOLAN, H.P.                             ...RESPONDENTS/PLAINTIFFS

    RESPONDENT NO. 3 MOHD. ARIF
    PRESENT IN PERSON.

    (BY SH. SUDHIR THAKUR, SENIOR ADVOCATE,
    ALONGWITH MR.KARUN NEGI, ADVOCATE.)

    Whether approved for reporting?




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                                        2                     RSA No. 159 of 2021




             This petition coming on for admission this day, the Court
delivered the following:




                                                                .

                             JUDGMENT

This appeal has been preferred by defendants/appellants

against plaintiffs/respondents. For convenience, parties shall be

mentioned as per their status in Civil Suit i.e. plaintiffs and defendants.

2.

Civil Suit No. 34-1 of 2018/2012 titled as Mohammad Maqbul

and others Vs. Bhagat Singh Thakur and others was filed by plaintiffs,

which was decreed by Senior Civil Judge, Court No. (I), Shimla vide

judgment and decree dated 18.9.2018. Civil Appeal No. 17-S/13 of 2019,

titled as Bhagat Singh Thakur and others Vs. Mohammad Maqbul and

others preferred by defendants against aforesaid judgment and decree

dated 18.9.2018 was dismissed by Additional District Judge (II), Shimla

vide judgment and decree dated 26.2.2021. In present appeal, aforesaid

judgments and decrees have been assailed by defendants.

3. During pendency of appeal, matter has been amicably

settled between the parties and compromise (Ex. CB) has been placed on

record by filing a joint application (Ex. CA) CMP No. 14316 of 2022 under

Order 23 Rule 1 and 3 of the Code of Civil Procedure.

4. Plaintiff Mohd. Arif (respondent No. 3) and defendant Anand

Thakur (appellant No. 2) are present in person. Their statements have

also been recorded on oath.

5. Terms of compromise read as under:

"That the courts below have awarded amount of mesne profits. The Respondents/plaintiffs have agreed to receive Rs. 2 Lakhs on this score and rest of the amount and claim by the Respondents/ Plaintiffs

shall be deemed to have been completely satisfied in letter and spirit. However, as per mutual settlement and compromise between the parties, the appellants/Defendant No. 2 and 3 Sarv Sh. Anand Singh Thakur and Digvijay Singh Thakur sons of Sh. Bhagat Singh shall

.

transfer their 1/6th share, area measuring 00-15-41 hectare of land owned and possessed by them as entered against Khata NO. 16, situated at Mohal Kamron, Sub Tehsil Jangla, District Shimla as per

the Jamabandi for the year 2017-2018. The Defendant No. 2 and 3 in the suit i.e Anand Singh and Digvijay Singh are in physical possession of khasra no. 735 measuring 00-15-44 hectares and both of them had

handed over physical possession of this land to the Respondent/Plaintiff. Since both the brothers sons of Sh. Bhagat Singh Thakur shall transfer their entire 1/6th share area measuring 00-15-41

hectare in the land as entered against Khata no. 16, khatauni no. 28,

situated at Mohal Kamorn, Sub Tehsil Jangla, District Shimla H.P. Therefore, on the basis of compromise decree they shall transfer their entire 1/6th share in favour of the Respondents/Plaintiffs. They shall transfer their 1/6th share in lieu of the amount of mesne profits and

damages as awarded in the aforesaid litigation and apart from this Rs. 2 Lakhs are being paid by the Defendants no. 2 and 3. The sum of Rs.

2 Lakhs referred to above is being paid by the Appellant/ Defendants in the name of one of the Respondent/ Plaintiffs who undertake to pay

this amount as per respective share. It is further agreed that after execution Sale deed by defendant no. 2 and 3 of their entire share in

Khata no. 16 situated at Mohal Kamorn, Sub Tehsil Jangla, District Shimla H.P and after reciept of Rs. 2 lakh from first party, the second party shall have no right to claim damages and mesne profit."

6. Plaintiff/respondent No. 3 Mohd. Arif has stated as under:

"I am co-plaintiff in present case. Civil Suit No. 34-1 of 2018/2012 was filed by me alongwith my father Mohd. Maqbul, brother Mohd. Yunus and two sisters Ms.Mulsuma and Ms.Saleema for possession, recovery and permanent prohibitory injunction against Bhagat Singh Thakur, Anand Thakur and Digvijay Thakur with respect to land and property comprised in Khata No. 149/146, Khatauni No. 322/319, Khasra No. 733, measuring 00-75-93 hectares situated in revenue Mohal Kamroun, Tehsil Chirgaon, District Shimla, H.P. Suit was decreed in our favour. Appeal preferred by appellants/defendants was also dismissed and, therefore, present appeal has been filed by them. During pendency of litigation, our father Mohammad Maqbul had expired and his name was deleted as

all his legal heirs were already on record. During pendency of present appeal, matter has been compromised amicably between us and as per compromise, appellants/defendants have handed over possession of suit land to us i.e. surviving plaintiffs, and in lieu of

.

mesne profit, they have paid 2,00,000/-, i.e. 50,000/- each to all surviving plaintiffs and appellants/defendants Anand Thakur and Digvijay Thakur have also transferred their entire 1/6th share of land

measuring 00-15-41 hectares, comprised in Khasra No. 735, Khata No. 16, Khatauni No. 28, situated in Mohal Kamron, Sub Tehsil Jangla, District Shimla, H.P. Appellants/defendants Anand Thakur

and Digvijay Thakur were in exclusive possession of the aforesaid Khasra number and possession of this Khasra number has also been handed over to surviving plaintiffs, as has been recorded in the sale

deed. Mutation on the basis of sale deed has also been attested in

favour of surviving plaintiffs.

Compromise has also been reduced into writing, which has been placed on record by filing application. Compromise has been

signed by all surviving plaintiffs and also by appellants/defendants in presence of witnesses mentioned in the compromise and application has also been signed by all as well as counsel for parties. The

application is Ex. CA and compromise is Ex. CB. I endorse and identify my signatures on compromise and application alongwith

signatures of surviving plaintiffs.

In view of aforesaid compromise, appeal be decided in

aforesaid terms, with observation that judgment and decree in terms of compromise stands satisfied.

My aforesaid statement is in consonance with instructions imparted to me by other surviving plaintiffs and also I am deposing in this Court out of my free will, consent and also without any external pressure, coercion or threat of any kind."

7. Defendant/appellant No. 2 Anand Thakur has stated as

under:-

"I have heard the statement of Mohammad Arif. I endorse the same to be true and correct. I identify my signatures on Ex. CA as well as Ex. CB. I also endorse signatures of co-defendants Bhagat Singh Thakur and Digvijay Thakur on these documents.

My aforesaid statement is in consonance with instructions imparted to me by other co-defendants and also I am deposing in this

Court out of my free will, consent and also without any external pressure, coercion or threat of any kind."

8. In view of aforesaid facts and circumstances, judgment and

.

decree dated 18.9.2018 and 26.2.2021 referred supra are modified in

terms of compromise which stands satisfied in terms of compromise as

stated in compromise as well as statements recorded on oath.

Statements of parties, application Ex. CA and compromise Ex. CB shall

form part of the decree. Decree sheet in terms of compromise be drawn

accordingly. r

9. Court fees, as permissible under rules, shall be refunded to

the appellants/defendants.

Appeal is disposed of alongwith pending applications in

aforesaid terms.

                                                          (Vivek Singh Thakur),





     th
11 October, 2022                                                 Judge.
          (Keshav)