Smt.Basanti Devi And Ors vs State And Ors
2021 Latest Caselaw 17363 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2479/2006 LRs of Basanti Devi & Ors.

----Petitioners Versus State of Rajasthan & Ors.

----Respondents S.B. Civil Writ Petition No. 4974/2007 Navin Bhansali & Ors.

----Petitioners Versus Board of Revenue for Rajasthan at Ajmer & Ors.

----Respondents

For Petitioner(s) : Mr. Ranveer Singh Mehta assisted by Ms. Pallavi Mehta, on VC & Mr. Ankit Bhaskar.

Mr. Vikas Balia assisted by Mr. VD Vaishnav.

Mr. CR Jakhar.

Mr. Akhilesh Rajpurohit.

Mr. Hukum Singh.

For Respondent(s) : Mr. JL Purohit Sr. Adv. assisted by Mr. Rajeev Purohit.

Mr. Rajesh Joshi Sr. Adv. assisted by Mr. Devesh A. Purohit. & Ms. Kamini Joshi.

Mr. S.G. Ojha.

Dr. Sachin Acharya with Mr. Jitendra Mohan Choudhary.

Mr. Ram Dayal Mr. Shashank Ojha.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

22/11/2021

1. With the consent of learned counsel for the parties, the

matters have been heard finally.

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2. These writ petitions have been preferred claiming the

following reliefs:

CWP No.2479/2006:

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed, record of the case from SDO Court, Revenue Appellate Authority and Board of Revenue may kindly be called for and by an appropriate writ, order or direction

(i) The impugned judgment of the Board of Revenue dated 31.01.2006 may kindly be quashed and set aside and all consequential steps taken thereto may also be quashed and set aside.

(ii) It may be declared that on account of judgment of the Board of Revenue, so far as the rights of the petitioners are concerned, they are not at all affected and the respondents may be restrained from interfering with the peaceful possession of the petitioners over their respective parcels of land.

(iii) That the District Administration may be restrained from interfering with the peaceful possession of the petitioners and they should not use their good offices so as to dispossess or otherwise harass the petitioners and to help the members of the ruling political party.

(iv) That the Urban Improvement Trust may be restrained from entertaining any application for the purpose of conversion of land by any of the persons who have purchased the land from Kan Singh."

CWP No.4974/2007:

"It is, therefore, respectfully prayed that the writ petition may kindly be allowed and by an appropriate writ, order of direction:-

(i) The order of Board of Revenue dated 22.3.07 (Annex.29) and the judgment and decree dated 31.1.06 (Annex.28) may kindly be quashed and set aside and all the consequential steps taken thereto may also kindly be quashed and set aside;

(ii) It may be declared that on account of the judgment of Board of Revenue so far as rights of the petitioners are

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concerned they are not at all effected and the respondents may be restrained from interfering in the peaceful possession of the petitioners over their respective parcials (Plots) of land."

3. Brief facts of this case, as noticed by this Court, are that one

Smt. Bhikhi Devi (now deceased) w/o Late Shri Durga Ram,

during her lifetime, filed a suit under Sections 88, 89, 53 and 183

of the Rajasthan Tenancy Act, 1955 against Bhanwarlal, Ganpat

Lal, Likhmaram, Premsukh, Pukhraj & Jaisingh before the learned

Sub Divisional Officer, Jodhpur, seeking declaration that she had

4/5th share in the land comprised in Khasra No.149/1 admeasuring

173 bigha 15 biswa situated at Village Chopasni Jagir, Tehsil

Jodhpur, partition by metes and bounds etc.

4. Upon an application being filed by the defendants under

Order 7 Rule 11 read with Section 151 of the Code of Civil

Procedure, the learned Sub Divisional Officer, Jodhpur accepted

the same and rejected the suit filed by Smt. Bhikhi Devi, vide

order dated 26.10.1998.

5. Aggrieved by the aforementioned order, Smt. Bhikhi Devi

filed an appeal before the learned Revenue Appellate Authority,

Jodhpur, which was dismissed in default on 27.04.2001, as Smt.

Bhiki Devi expired on 09.03.2001 and her legal heirs were not

brought on record. However, the said appeal was restored, at the

instance of adopted son of Late Shri Durga Ram and Late Smt.

Bhikhi Devi, namely, Kan Singh @ Kana Ram, upon an application

being filed by him under Order 22 Rule 3 read with Section 151

CPC. But after a detailed hearing, the said appeal filed before the

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learned Revenue Appellate Authority was rejected on merits vide

its order dated 30.07.2003.

6. Aggrieved by the aforementioned order passed by the

learned Revenue Appellate Authority, Jodhpur, Kan Singh @ Kana

Ram filed a second appeal before the Board of Revenue for

Rajasthan at Ajmer, which was allowed on 31.01.2006, on account

of a compromise between the parties, whereby the suit filed by

Smt. Bhikhi Devi was decreed, providing for 16 bigha land in her

share, which of course now was to go to her adopted son-Kan

Singh @ Kana Ram.

The present petitioners thereafter, filed a review to the second

appeal before the learned Board of Revenue, but the same was

dismissed on 22.3.2007.

7. It is noteworthy that the aforementioned compromise in

respect of 16 bigha of land in question, was of no consequence in

relation to the suit filed by Smt. Bhikhi Devi, because as per the

order dated 27.7.1982 of the Tehsildar, Jodhpur, already 16 bigha

land was held to be in the ownership of Late Shri Durga Ram, who

was the husband of Smt. Bhikhi Devi and thus, Smt. Bhikhi Devi

and her legal heirs, by virtue of the aforementioned so called

compromise, stood on the same pedestal as they were on

27.07.1982, when an order was passed by the Tehsildar accepting

the mutual partition; the said land in question was further

mutated in favour of the respective holders on 03.08.1982.

8. The present writ petitions were filed challenging the

judgment and order dated 31.01.2006 passed by the learned

Board of Revenue in second appeal, wherein the following interim

orders were passed by this Hon'ble Court on 22.05.2006 (CWP

No.2479/2006) and 20.08.2007 (CWP No.4974/2007):

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Order dated 22.05.2006:

"Admit. Issue notice.

Meanwhile, status quo shall be maintained on the spot and the implementation of the impugned order dated 31.01.2006 shall remain stayed."

Order dated 20.08.2007:

"Admit. Issue notice.

In the meanwhile, status quo shall be maintained on the spot and the implementation of the impugned order dated 31.01.2006 shall remain stayed. Connect with SBCWP No.2479/2006 titled as Smt. Basanti Devi and others Vs. State of Rajasthan and others).

9. Mr. Vikas Balia and Mr. C.R. Jakhar, learned counsels for the

petitioners submit that consequent to the land having been vested

in Smt. Bhikhi Devi, the petitioners had their own rights accruing

out of the power of attorney executed by Smt. Bhikhi Devi in

favour of Ladu Ram s/o Bhanwar Lal on 17.03.1989 for the land in

khasra No.149/1 measuring total 16 bigha (the land in question);

the said power of attorney was duly registered in the Office of Sub

Registrar, Jodhpur on 25.04.1989.

10. Learned counsels for the petitioners also submit that

furthermore, the land in question was sold by the power of

attorney holder Ladu Ram, on the basis of the aforementioned

power of attorney, to various parties by executing different sale

deeds.

11. Learned counsels for the petitioners admitted that in the

year 1981, an agreement to sell was executed between Late Shri

Durga Ram, who was the husband of Smt. Bhikhi Devi, and the

present purchasers, and thus, the origination of the exercise had

occurred way back.

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12. Learned counsels for the petitioners fairly submits that even

if there was a cloud upon the aforementioned agreement to sell

executed in the year 1981, then also the registered power of

attorney executed by Smt. Bhikhi Devi, the sole surviving heir of

Late Shri Durga Ram, who expired on 19.10.1988, the registered

sale deed executed through the registered power of attorney

holder, were sufficient to pass on a successful title to the present

petitioners.

13. On the other hand, Mr. Rajesh Joshi, learned Senior Counsel

assisted by Mr. Devesh A. Purohit & Ms. Kamini Joshi, appearing

on behalf of the respondents, vehemently opposes the present

petitions, on the ground that the decree in question rendered by

the learned second appellate court on 31.01.2006, was on account

of compromise between the concerned parties, and as per the

mandate of Section 96(3) of the CPC, such compromise decree

was not challengeable.

14. Learned Senior Counsel for the respondents relied upon the

precedent law laid down by the Hon'ble Supreme Court in Triloki

Nath Singh Vs. Anirudh Singh (Dead) through Legal

Representatives & Ors., reported in (2020) 6 SCC 629,

relevant portion of which reads as under:

"14. Order 23 Rule 3 and Rule 3A CPC may at this stage be extracted for ready reference:

"3.Compromise of suit.--Where it is proved to the satisfaction of the Court that a 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 any part of the subject-matter of the suit, the Court shall order such agreement, compromise or

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satisfaction to be recorded, and shall pass a decree in accordance therewith so far it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise, or satisfaction is the same as the subject-matter of the suit:

Provided 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; but 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.

Explanation.--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 this Rule.

3A. Bar to suit - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."

15. What is emerged as a legislative intent has been considered in extenso by this Court in Pushpa Devi Bhagat(Dead) Through LR Sadhna Rai(Smt) Vs. Rajinder Singh and Others, after taking note of the scheme of Order 23 Rule 3 and Rule 3A added with effect from 1st February, 1977. The relevant paragraphs are as under-

"17. The position that emerges from the amended provisions of Order 23 can be summed up thus:

(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.

(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.

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(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A.

(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.

Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code.

(Emphasis supplied)

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17. By introducing the amendment to the Civil Procedure Code(Amendment) 1976 w.e.f. 1st February, 1977, the legislature has brought into force Rule 3A to Order 23, which create bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the Court of competent jurisdiction once and for all.

18. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The Court can be instrumental in having an agreed compromise effected and finality attached to the same. The Court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Rule 3 of Order 23 CPC before the Court.

22. Indeed, the appellant was not a party to the stated compromise decree. He was, however, claiming right, title and interest over the land referred to in the stated sale deed dated 6 th January, 1984, which was purchased by him from Sampatiya judgment debtor and party to the suit. It is well settled that the compromise decree passed by the High Court in the second appeal would relate back to the date of institution of the suit between the parties thereto. In the suit now instituted by the appellant, at the best, he could seek relief against Sampatiya, but cannot be allowed to question the compromise decree passed by the High Court in the partition suit. In other words, the appellant could file a suit for protection of his right, title or interest devolved on the basis of the stated sale deed dated 6th January, 1984, allegedly executed by one of the

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party(Sampatiya) to the proceedings in the partition suit, which could be examined independently by the Court on its own merits in accordance with law. The trial Court in any case would not be competent to adjudicate the grievance of the appellant herein in respect of the validity of compromise decree dated 15 th September, 1994 passed by the High Court in the partition suit.

23. In other words, the appellant can only claim through his predecessor Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC. It must, therefore, follow that the suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment.

24. In the instant case, the suit was instituted in the year 1995 and 25 years have rolled by now and after the finding has been recorded in reference to issue no. 7 regarding the right, title and interest of the suit property against the appellant by the learned trial Judge devolved on the basis of a stated sale deed dated 6th January, 1984 and not interfered by the Court of Appeal preferred at the instance of the appellant, in the given circumstances, remitting the matter back to the learned trial Court to examine the suit filed at the instance of the appellant-plaintiff independently for protection of his right, title or interest being devolved on the basis of the stated sale deed dated 6th January, 1984 which as alleged to have been executed by one of the party to the compromise(Sampatiya) in the changed

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circumstances may not serve any purpose more so after the concurrent finding of Courts below have been recorded against the appellant-plaintiff."

15. Learned Senior Counsel for the respondents laid emphasis on

the issue that once the compromise decree has been attained, a

third party against whom the relief was not claimed and who is

not affected by such decree, cannot file an appeal.

16. Learned Senior Counsel for the respondents further submits

that the present petitions preferred by the petitioners are not

maintainable, in view of the specific bar under Order 23 Rules 3

and 3-A CPC.

17. After hearing learned counsel for the parties as well as

perusing the record of the case, this Court finds that the original

suit for declaration was pertaining to 173 bigha and 15 biswa of

land in khasra No.149/1 situated at Village Chopasni Jagir, and

was instituted, against the other co-sharers, by the wife of Late

Durga Ram, namely, Smt. Bhikhi Devi.

18. This Court takes note of the fact that Smt. Bhikhi Devi, in

her suit, has not touched the issue of the earlier agreement to sell

and subsequent registered power of attorney and the registered

sale deed, and thus, the same are not the bone of contention in

the said declaratory suit.

19. This Court also takes note of the fact that the law regarding

the compromise decree being not to be interfered with at the

instance of the parties, as envisaged in Section 96 (3) CPC and

Order 23 Rules 3 & 3-A CPC.

20. Thus, in the given facts and circumstances of the case, this

Court observes that the compromise decree, when it is not

touching the rights of the present petitioners, particularly the

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agreement to sell, registered power of attorney and the registered

sale deed, the challenge is not maintainable, as it was a

compromise decree between the concerned parties, and is not

affecting the rights of the present petitioners in any manner

whatsoever.

The 16 bigha of land in the share of Late Shri Durga Ram/

Smt.Bhikhi Devi/ Kan Singh @ Kana Ram remains the same, and

thus, there is no cause of action arising for the present

petitioners, at this stage.

Thus, at this stage, the challenge to the compromise decree,

which merely reiterates the earlier order of Tehsildar passed on

27.07.1982, is not maintainable at the instance of the present

petitioners.

However, it is clarified that the petitioners' rights, arising out of

the agreement to sell, registered power of attorney and the

subsequent registered sale deed, would not be affected by this

judgment, and the petitioners shall be free to emphasize their

rights. Furthermore, the declaratory decree granted shall be

binding only upon the respective parties before the second

appellate court and shall have no impact upon the rights of the

present petitioners.

21. With the aforesaid observations, the present petitions are

disposed of. All pending applications also stand disposed of.

(DR. PUSHPENDRA SINGH BHATI),J.

SKant/-

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