Vimal Kumar vs Banwarilal (2023:Rj-Jd:26105)
2023 Latest Caselaw 6021 Raj

Citation : 2023 Latest Caselaw 6021 Raj
Judgement Date : 18 August, 2023

Rajasthan High Court - Jodhpur

Vimal Kumar vs Banwarilal (2023:Rj-Jd:26105) on 18 August, 2023

Bench: Rekha Borana

[2023:RJ-JD:26105]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 115/2023

Vimal Kumar S/o Shri Sant Kumar, Aged About 36 Years, By Caste Bishnoi, Resident of Sherekan, Tehsil Tibbi, District Hanumangarh.

----Petitioner

Versus

1. Banwari Lal S/o Late Shri Shyokaran, By Caste Bishnoi, R/o Sherekan, Tehsil Tibbi, District Hanumangarh.

2. Vikash Kumar S/o Shri Banwari Lal, By Caste Bishnoi, R/o Sherekan, Tehsil Tibbi, District Hanumangarh.

3. Sant Kumar S/o Shri Viruram, R/o Sherekan, Tehsil Tibbi, District Hanumangarh.


                                                                     ----Respondents


For Petitioner(s)             :    Mr. Rajat Rajpurohit
                                   Mr. Prashant Tatia
For Respondent(s)             :    Mr. Sushil Bishnoi



              HON'BLE MS. JUSTICE REKHA BORANA

                                        Order

18/08/2023

1. The present revision petition has been preferred against the

order dated 15.05.2023 passed by the Additional District Judge

No.2, Hanumangarh in Civil Appeal No.8/2023 (CIS No.8/2023)

whereby the application under Section 96 of the Code of Civil

Procedure for grant of leave to prefer an appeal against the

judgment and decree dated 18.03.2023 passed by Senior Civil

Judge Tibbi, Hanumangarh in Civil Case No.68/2022 (CIS

No.70/2022) has been allowed.

[2023:RJ-JD:26105] (2 of 5) [CR-115/2023]

2. The facts of the case are that a suit for perpetual and

permanent injunction was preferred by one Vimal Kumar against

his father Sant Kumar with a submission that his father was

interfering in his peaceful possession over the land in question and

he may be restrained from doing so. The said suit was decreed

vide compromise and a compromise decree dated 18.03.2023 was

passed in the said suit. Aggrieved against the said decree, the

present respondents No.1 and 2 Banwari Lal and Vikash Kumar

preferred an application for leave to appeal against the judgment

and decree dated 18.03.2023.

3. The case of the applicants was that they were in possession

of the disputed property. The plaintiff and the defendant in the

suit, being father and son, in collusion, filed the suit and vide the

collusive decree, plaintiff got a declaration in his favour that he is

in possession of the property. The case of the applicants further

was that in garb of the said collusive decree, Vimal Kumar, the

plaintiff therein attempted to dispossess them from the property in

question and hence, they have a right to challenge the impugned

judgment and decree dated 18.03.2023, being aggrieved of the

same.

4. Learned counsel for the petitioner submitted that the suit in

question was a simpliciter suit for injunction wherein the

defendant had been restrained from interfering with the

possession of the plaintiff. Counsel further submitted that it was

clearly proved on record in the said suit that the plaintiff was in

possession of the property and the impugned decree cannot be

termed to be collusive.

[2023:RJ-JD:26105] (3 of 5) [CR-115/2023]

5. Per contra, learned counsel for the respondents applicants

submitted that the findings as arrived by the learned Court below

while granting the leave to appeal are totally in consonance with

law and in consonance with the material available on record which

clearly proves that the suit which was filed on 20.12.2022, was

decreed vide compromise within a span of less than three months.

Therefore, they have rightly been permitted to appeal against the

impugned judgment and decree.

6. Heard learned counsel for the parties and perused the

material available on record.

7. So far as decree dated 18.03.2023 is concerned, this Court is

of the clear opinion that even if it is concluded that the same is a

collusive decree, the same cannot, in any manner, bind any person

other than the plaintiff and the defendant therein. Admittedly,

although the suit in question was titled as 'वाद बाबत शाश्वत व्यादे श एवं

घोषणा हे तु', the relief as prayed was only for injunction. Vide the

impugned judgment and decree, the defendant therein has been

restrained from interfering with the possession of the plaintiff. By

all means, the said decree can bind only the defendant therein

and no person other than the parties to the suit. So far as the

present applicants are concerned, neither can they be bound by

the said decree nor can they be dispossessed, if they are in

possession of the property in dispute, by virtue of the said decree.

8. In the specific opinion of this Court, the law on the question

as to who can be granted leave/permitted to appeal against a

judgment and decree is settled. It is only the 'person aggrieved'

against the decree who can be granted leave/permitted to file an

appeal against the same. The High Court at Karnataka while

[2023:RJ-JD:26105] (4 of 5) [CR-115/2023]

dealing with a similar situation in Sri Jagadish vs. Sri

Hanamant & Anr. (Writ Petition No.147800/2020) decided

on 21.09.2020 observed as under:

"5. After having heard the learned counsel for the petitioner and after having perused the material on record, it is relevant to state that it is well settled that a decree/compromise decree is not binding on any person, who is not a party to the said decree/compromise decree. In view of undisputed fact that the petitioner is not a party to the impugned Lok Adalath award or compromise decree, the said award of Lok Adalath or the impugned compromise decree is clearly not binding upon the petitioner nor will the same affect the alleged right, title or interest of the petitioner, if any, over the suit schedule properties. In addition to this, the petitioner is also free to avail remedy available to him in law in respect of the subject land as against respondents before the appropriate Court/Forum/Tribunal."

9. In the opinion of this Court, the present applicants cannot be

held to be aggrieved of the decree wherein the defendant to the

suit has been restrained from interfering with the possession of

the plaintiff. The said decree firstly, is not a decree for

declaration. Secondly, even if it is assumed that the same talks

of possession of the plaintiff, it can only be a declaration 'in

personam' and not 'in rem'. The terms of a compromise decree

can bind only the parties to the compromise/suit and not a

stranger/third person. By all means, the applicants herein cannot

be termed to be 'aggrieved' of the impugned decree, the same not

being binding on them.

10. In view of the above observations, the order impugned dated