Billu Singh vs Gurcharan Singh and ors..

D.V. Sehgal, J.

To appreciate the dispute which requires to be resolved in the present appeal, it is necessary to have reference to some of the facts.

Wazir Singh had three sons, Kaka Singh, Teja Singh and Ishar Singh. Plaintiff respondnet Nos. 1 and 2 are the sons of Kaka Singh from his wife Bachan Kaur, while Billu Singh defendantappellant is the son of Teja Singh. Wazir singh owned 280 Kanals 12 Marlas of land. The appellant filed a suit against Wazir Singh and secured a consent decree to the effect that the former is the owner of the entire land of Wazir Singh. After the death of Wazir Singh, the plaintiffrespondents filed a suit for possession of 1/3rd share, i.e. 93 Kanals, 11 Marlas, out of the land measuring 280 Kanals 12 Marlas left by the deceased. They impugned the decree secured by the appellant in his favour, inter alia, on the ground that the land in suit was ancestral, joint Hindu family coparcenary property of the respondent and the appellant, and that the same could not be alienated and the alleged consent was without legal necessity and consideration. The suit was partly decreed in favour of the respondents of the extent that they were entitled to possession of 31 Kanals 4 Marlas of land. Being dissatisfied from the said decree, the respondents as also the appellant preferred appeals which came up for arguments before the learned Additional District Judge Bhatinda, on 4th March, 1986. On behalf of the respondents, the claim in appeal was that they were entitled to full 1/3rd share in the estate of Wazir Singh to the extent of 93 Kanals 11 Marlas. On the other hand the appellant challenged the decree passed by the trial Court in favour of the respondent to the extent of 31 Kanals 4 Marlas. On the date of hearing, the counsel for the appellant made a statement that the matter had been amicably settled between the parties. The learned counsel for the respondents made a statement agreeing to what had been stated by the counsel for the appellant. Being thus satisfied that the matter had been amicably settled between the parties, the learned Additional District Judge passed the following order :

"The matter has been amicably settled and the statements of counsel for the appellant Mr. S.P. Kalia, Mr. Tegbans Singh Gill and the respondents Mr. Abhay Singla have been recorded.

In view of the statements, therefore, which shall form part of this order the Civil Appeal No. 467 of 1983 titled Gurcharan Singh v. Billu Singh succeeds and the judgment appealed against stands set aside. In case, however, Billu Singh delivers the possessing of 31 Kanals 4 Marlas of land to Gurcharan Singh on or before 30.5.1986 in terms of the statements, both these appeals shall be deemed to have been dismissed with no order as to costs. Decree sheet be prepared."

In the present appeal from the aforesaid judgment and decree of the learned Additional District Judge, the learned counsel for the appellants has contended that the manner isnwhich the compromise has been recorded by the Court below is not in accordance with law. He relies on the provisions of Order 23, rule 3, Code of Civil Procedure, and seeks support from Dalip Singh and another v. Raj Mall and others, 1981 P.L.J. 298 and contends that the mandatory provisions of rule 3 ibid required that when a Court is satisfied that a suit pending before it has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall pass a decree in accordance therewith. In the present case, no such written agreement or compromise deed signed by the parties was filed in the Court at the time of passing of the decree under appeal. The words "in writing and signed by the parties" as introduced in rule 3 ibid by the Amending Act of 1976 are mandatory in character and noncompliance therewith renders the decree based on the alleged compromise or agreement unsustainable.

On the other hand, the learned counsel for the respondents has relied on a Division Bench judgment of this Court in Shri Manohar Lal v. Surjan Singh, 1983(2) Rent Control Reporter 74 1984 : 1984 RRR 511. He contends that the requirement of the document being in writing and signed by the parties as laid down in rule 3 ibid is applicable only to an agreement or compromise for adjustment of the suit as envisaged in the first part of the said rule. This requirement is not related to the satisfaction of the plaintiff by the defendant in respect of the whole or any part of the subjectmatter of the suit under the second part of the said provision. The Division Bench in Manohar Lal''s case (supra) observed thus

"An analysis of rule 3 would disclose two distinct kinds of classes of compromises in suits. This has been highlighted by already splitting the rule into two distinct parts while quoting it above. These parts can and indeed must be read separately and disjunctively. The first part of the rule visualises a lawful agreement or compromise arrived at out of the Court by the parties. It is this kind of agreement or compromise which the amendment of 1976 now in terms provides to be in writing and signed by the parties. It is to this class, namely out of Court agreements and compromises that the words "in writing and singed by the parties" expressly apply. Indeed they immediately follow the words "any lawful agreement or compromise" and the legislature by way of amendment inserted the provision with regard to same being in writing and signed by the parties designedly at that point in the body of the then existing rule 3. On a plain and grammatical reading of rule 3, the requirement of "in writing and signed by the parties" therefore appends itself only to the lawful agreements or compromises arrived at by the parties out of the Court. This appears to be otherwise sound in principle. A stricter method of proof regarding agreements or compromises arrived at out of the Court was spelt out in order to remedy the evil of nebulous oral agreement and compromises being set up by the parties, from which they could resile, and contankerous litigants could thereby prolong the already tardy process of a civil suit. As already noticed, it was to correct the abuse of setting up of an oral agreement or compromise outside the Court and the attempts to prolong the matters by leading evidence thereof that the legislature mandated that such agreements or compromises must not only be written but equally that these must be signed by the parties. This seems to be plain, on the legislative background, on principle, as also on the existing language of rule 3."

On a perusal of the proceedings before the learned Additional District Judge in the two rival appeals pending before him and the statement made on behalf of the appellant which was accepted on behalf of the respondents by their counsel make it clear that it was in satisfaction of the claim made by the respondents and the decree was passed in accordance with the same. The claim of the respondents in their appeal was conceded but at the same time it was provided that in case the appellant delivers to them possession of 31 Kanals 4 Marlas of land as decreed by learned trial Court on or before 30.5.1986, their appeal as also the appeal of the appellant shall be deemed to have been dismissed. Going by the guidelines laid down by the Division Bench in Manohar Lal''s case (supra) I have no doubt in my mind that the statement made by the learned counsel for the appellant was to satisfy the claim in appeal made by the respondents. At the same time a concession was made on behalf of the latter that if the appellant readily delivered possession of the land in respect of which the decree had been passed by the trial Court they would not further pursue their claim in appeal. In these circumstances, it was not necessary to have an agreement or compromise in writing and signed by the parties as is the requirement of the first part of rule 3 Ibid.

Faced with this situation, it was contended on behalf of the appellant that his counsel before the learned Additional District Judge was not authorised to satisfy the claim of the respondents in appeal and to make a statement on the basis of which the judgment and decree under appeal were passed. I do not find force in this submission. Keeping in view the provisions of Order 3, Rule 4, C.P.C. and unless the contrary is proved, it is clear that the counsel was authorised to make the statement in satisfaction of the claim in appeal of the respondents and the statement so made by him is binding on the appellant. A similar contention was turned down by the highest Court in Employees in relation to Monoharbahal Colliery, Calcutta v. K.N. Mishra, A.I.R. 1975 S.C. 1632.

I, therefore, find no merit in this appeal which is consequently dismissed but without any order as to costs.