Balbir Singh vs (I) Pawan Kumar (Son)
2023 Latest Caselaw 2286 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                        Reserved on 04.10.2023
                                                    Pronounced on 13.10.2023
OW104 No. 98/2013


1.    Balbir Singh, age 48 years                    .....Appellant(s)/Petitioner(s)
2.    Tarsem Singh, age 50 years
3.    Yasvir Singh, age 46 years
      All sons of Sh. Punnu Ram, R/o.
      Village Dhoun Chak, Tehsil
      Akhnoor, District Jammu

Q
                       Through: Mr. D. K. Khajuria, Adv.
                  vs
1.     (i) Pawan Kumar (son)                                    ..... Respondent(s)
       (ii) Sanjay Kumar Sharma (son)
       (iii) Pinky Sharma (daughter)
       all S/o. Late Maya Ram Sharma
       respondent No. 1
       residents of H. No. 50 Bharat Nagar,
       Talab Tillo, Jammu
2.     Sh. Pawan Kumar S/o. Sh. Duni
       Chand, R/o. House No. 50, Bharat
       Nagar, Talab Tillo, Jammu


                       Through: Mr. L. K. Sharma, Sr. Adv. with
                                Mr. Deepak Khajuria, Adv.


    Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                  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

OW104 No. 98/2013

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. 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

OW104 No. 98/2013

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 2 nd 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

OW104 No. 98/2013

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 2 nd Additional

OW104 No. 98/2013

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. 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.

(SANJAY DHAR) JUDGE

Jammu 13.10.2023 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No