Punjab-Haryana High Court
Deva Singh And Ors vs Bed Kaur And Ors on 10 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:049044
SAO-13-2015 (O&M) 2024:PHHC:049044
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
SAO-13-2015 (O&M)
Reserved on: 02.04.2024
Date of decision: 10.04.2024
DEVA SINGH AND ORS.
..Appellants
Versus
BED KAUR AND ORS.
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ashwani Kumar Chopra, Sr. Advocate
with Mr. Vidul Kapoor, Advocate
for appellants.
Mr. Chanderhas Yadav, Advocate
for respondent No.1 to 11.
Mr. Sandeep K. Sharma, Advocate
for respondent No.12 and 13.
ANIL KSHETARPAL, J.
1. This second appeal is filed against the order passed by the First
Appellate Court on 10.12.2014, wherein, the First Appellate Court's order
remitting the matter back to the trial Court for deciding afresh is challenged
by the plaintiffs.
2. In order to comprehend the issue involved in the present case,
pedigree table demonstrating the relationship of the parties and relevant
facts, in brief, are required to be noticed, which is extracted as under:
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Sheobaksh
Chiman Neki Ram Jai Singh
Jeot Ram Raj Singh Guru Dutt Ujjagar Udai Singh Deva Dilbagh Ved Kaur
(D-3) (D-4) Singh Singh (Def.-5)
(Pltf.-1) (Pltf.-2)
Smt. Krishna Phool Kaur
(Wife) (W/d of Udai Singh)
Jasbir Singh Sujita
Joginder Smt.Krishna Smt.Darshana
(Pltf.-3) (D-6) (D-7)
Satish Kumar Manoj Kumar
(D-1) (D-2)
(Nephews of Smt. Krishna)
Bed Kaur
(w/d of Ujjagar)
Ujjwal Singh Virender Singh Dalbir Narinder
Sunita Sunil Sumit
(W/d of Virender)
3. The dispute is with regard to inheritance of the property left
behind by Smt. Krishna widow of Sh. Raj Singh. The plaintiffs namely Sh.
Deva Singh, Sh. Dilbagh Singh sons of Sh. Jai Singh, and Sh. Joginder
Singh son of Sh. Guru Dutt filed a suit for grant of decree of declaration on
the basis of natural succession. In this suit, Sh. Satish Kumar, Sh. Manoj
Kumar were impleaded as defendants, whereas, Sh. Ujjagar Singh, Sh. Udai
Singh, Smt. Bed Kaur, Smt. Krishna and Smt. Darshna were impleaded as
proforma defendants.
4. In para five of the plaint, it was asserted as under:-
"5. That on the death of Smt. Krishna widow of Sh. Raj
Singh, the succession opened up and the plaintiffs and
defendants no.3 to 7 the legal heirs of the deceased
succeed the estate of Smt. Krishna widow of Sh. Raj
Singh and an application to this effect was also moved
by the plaintiffs for entering and sanctioning the
mutation of Virasat. Mutation No.5752 was entire in
revenue record by Halka Patwari."
5. Thus, it is evident that it is the case of plaintiffs that they along
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with defendant No.3 to 7 are heirs of deceased Smt. Krishna widow of Sh.
Raj Singh. During the pendency of the suit, two sisters of Sh. Raj Singh
filed an application for impleadment which was dismissed. Defendant No. 1
and 2 contested the suit on the ground that Smt. Krishna executed a Will in
their favour. Proforma defendants were proceeded against ex parte as no
relief against them was sought. Defendant No.3 and 4 admitted that Smt.
Krishna executed a Will in favour of Sh. Satish Kumar and Sh. Manoj
Kumar.
6. During the pendency of the suit, a settlement was arrived at
between Sh. Deva Singh, Sh. Dilbagh Singh, Sh. Joginder (plaintiffs) and
Sh. Satish Kumar, Sh. Manoj Kumar, defendant No. 1 and 2. As per the
settlement, plaintiffs and defendant No.1 and 2 divided the property half
and half between themselves. Heirs of Sh. Ujjagar Singh and Sh. Udai
Singh filed an appeal claiming that the decree passed on the basis of the
settlement does not bind them and the trial Court could not have passed the
judgment and decree on the basis of settlement without issuing notice to the
appellants, which has been accepted by the First Appellate Court.
7. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook.
8. The learned Senior counsel representing the appellants has
made the following submissions:-
i. As per Section 96 (3) of the Code of Civil Procedure,
1908 (hereinafter referred to as the "CPC"), no appeal
was maintainable against compromise decree.
ii. Defendant No. 3 and 4 were estopped from filing the
suit, particularly, when they admitted that defendant No.
1 and 2 have succeeded the property by virtue of a Will
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executed by Smt. Krishna, widow of Sh. Raj Singh.
9. On the other hand, he further submits that the respondents were
proforma respondents and therefore, they could not file the appeal.
10. Per contra, the learned counsel representing the respondents
have opposed the appeal.
11. This Court has considered the submission of the learned
counsel representing the parties.
12. It is evident that the plaintiffs while filing the suit
acknowledged that defendant No. 3 to 7 are also heirs of late Smt. Krishan
along with them. In other words, the plaintiffs filed suit claiming that Smt.
Krishna Rani's estate will fall to the share of the plaintiffs and defendant
No. 3 to 7.
13. No doubt, defendant No. 3 and 4 conceded to the claim of the
defendant No. 1 and 2 with respect to the Will. However, by virtue of
settlement, half share of Smt. Krishna has come back to the plaintiffs,
namely Sh. Deva Singh and Sh. Dilbagh Singh and Sh. Joginder. In this
manner, the rights of proforma defendants are adversely affected. The
proforma defendants were proceed against ex parte because no relief was
sought by the plaintiffs. In fact, the plaintiffs were expounding the cause of
proforma defendant No. 3 to 7. Defendant No.3 and 4 were not party to the
settlement. In these circumstances, the trial Court committed an error in
disposing of the suit on the basis of settlement.
14. With respect to the first submission of the learned Senior
counsel, it may be noted that Section 96(3) of CPC do provide that no
appeal shall lie from the decree passed by the Court with the consent of
parties. However, it is no where provided that the parties, who have not
given consent, will also not be entitled to file the appeal. The language used
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in Section 96(3) of the CPC is categoric. That Parliament intended that no
appeal should be entertained at the behest of a party who has given consent,
The statute does not use the language that no appeal shall be maintainable
against decree passed on the basis of the compromise. Hence, the judgment
relied upon by the learned Senior counsel representing the appellants in
Pushpa Devi Bhagat (dead) through LRs versus Rajinder Singh and
others, (2006) 5 SCC 566, will not be applicable.
15. If the arguments of learned Senior counsel representing the
appellants is accepted, the consequences would be serious and grave. Every
party to the suit, who has not consented to the compromise decree will have
to come to the High Court in a revision petition, which may not be
economical feasible for a poor litigant. While interpreting the statute, the
Court is required to examine the purpose behind the particular statute. It
appears to me that the Parliament only intended that the party who had
consented to the decree should be debarred from filing the appeal, however,
it was never intended that the party who has not consented to the
compromise decree should also be debarred from filing the first appeal.
16. This matter can be examined from yet another perspective. The
decree passed on the basis of compromise is in fact an ex parte decree
against defendant No.3 and 4 because he is not party to the compromise. An
appeal is maintainable against ex parte decree. A learned Single Judge of
the Rajasthan High Court in Mohar Singh versus Hermale Singh and
others, 2008(2) ILR (Rajasthan) 132, has also concluded on the same lines.
In Katikara Chintamani Dora and others vs Guntreddi Annamnaidu and
others, 1974 AIR 1069, the Supreme Court while dealing with the question
of appeal in the matter of consent decree, has observed as under:-
"Be that as it may,, the bar to an appeal against a
consent decree, in Sub-Section (3) of Section 96 of the
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Code is based on the broad principle of estoppel. It
presupposes that the parties to an action can, expressly
or by implication, waive or forego their right of appeal
by any lawful, agreement or compromise, or even by
conduct. Therefore, as soon as the parties made the
agreement to abide by the determination in the, appeal
(A.S. 668) and induced the court to pass a decree in
terms of that agreement, the principle of estoppel
underlying 196(3) became operative and the decree to
the extent it was in terms of that agreement, became final
and binding between the parties. And it was as effective
in creating an estoppel between the parties as a
judgment on, contest."
17. Additionally, in such cases, the aggrieved person may file a
review application before the same Court or file an appeal. Any other
person, party to the suit but not party to the compromise is not precluded
from assailing the validity of decree by way of appeal notwithstanding the
provisions of Section 96(3) of the CPC. The Supreme Court has also held
that the purpose behind bar to the maintainability of appeal under Sub-
Section 3 of Section 96 of the CPC is based upon the broad principle of
estoppel, which shall not be applicable in case the appeal is filed by the
party to the suit but not party to the compromise decree.
18. The second submission of the learned Senior counsel
representing the appellants also lacks substance because defendant No. 3
and 4 while filing the written statement, admitted execution of the Will by
Smt. Krishna in favour of defendant No. 1 and 2, however, they never gave
up their right if the property was to be apportioned on the basis of natural
succession. In other words, defendant No. 3 and 4 have not stated that the
plaintiffs are only entitled to the property on the basis of natural succession.
They have at the most admitted that Smt. Krishna bequeathed the property
in favour of defendant No. 1 and 2. However, this written statement would
not result in depriving defendant No.3 and 4 from their share if the property
was to come by natural succession from the estate of Smt. Krishna.
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19. Keeping in view the aforesaid discussion, there is no ground to
interfere.
20. Dismissed accordingly.
21. All the pending miscellaneous applications, if any, are also
disposed of.
April 10th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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