Bishamber Dayal vs Smt. Bhagwni

G.C. Garg, J.—This second appeal is at the instance of the defendant who lost in the two courts below. The dispute is between a brother and a sister and it relates to the estate of their father.

Onkar was the owner of land measuring 228 Kanals 15 Marias. He left behind three sons and three daughters. The land was mutated in favour of the six heirs in equal shares. On August 2, 1976, Bishamber Dayal filed a suit against his sister Bhagwani. Written statement admitting the claim made in his suit was filed on the same day and the suit was decreed on the next day.

Bhagwani filed the present suit for declaration that she was the owner in possession of l/6th share in the suit land and that the decree dated 3-8-1976 was based on fraud and misrepresentation and was not binding on her. Her farther allegation was that she was taken to Narnaul by her brother on the pretext that a power of attorney in his favour was required for looking after the land and the defendant got her thumb impression on some papers purporting to be a power of attorney. She came to know of the fraud played on her in the year 1978 when she tried to plough the land and she was obstructed by the defendant by alleging that he had become the owner thereof because of the decree dated 3-8-1976. On inquiry, it revealed that the defendant got her thumb impressions by playing fraud on her and betrayed the faith reposed by her and thus the decree dated 3-8-1976 was illegal and not binding on her.

The defendant denied the allegations of fraud and misrepresentation and pleaded that Bhagwani herself engaged a counsel in the previous suit and filed written statement admitting his claim. A preliminary objection was also raised to the effect that the suit was not maintainable in the present form. Some other objections were also taken which are not relevant for purpose of disposal of this appeal.

The pleadings of the parties gave rise to the following issues :--

Whether the impugned decree dated 3-8-1976 is liable to be set aside as alleged ? OPP

Whether Onkar deceased made a valid will in favour of defendant ? OPD.

Whether the suit is not maintainable in the present form ? OPD.

Whether the plaintiff has no locus standi ? OPD.

Whether the plaintiff is estopped by her own act and couduct from filing the suit ? OPD.

Relief.

The trial Court decreed the suit after recording finding under issue No. 1 in favour of the plaintiff and under issue Nos. 2 to 5 against the defendant. The District Judge affirmed all the findings recorded by the trial Court and dismissed the appeal preferred by the defendant.

The learned counsel for the appellant first of all contended that in view of the provisions of Order 23 Rule 3-A of the Code of Civil Procedure, no suit lay to set aside a decree on the ground that the compromise on which the decree was based was not lawful. The thrust of the argument was that decree dated 3-8-1976 being based on a compromise could not be set aside in. the present suit. The learned counsel in support of his submission relied upon Pyara Singh v. Gurbachan Singh (1984) 86 L. R. 675. In my view, this case has no application to the facts of the present case. In the reported case, a compromise decree was passed on the basis of statements made by the parties and the allegation of fraud being played was rejected. But in the present case neither the statements of the parties were recorded nor any compromise in writing was filed. The suit was decreed on the basis of written statement admitting the claim made by the plaintiff in that suit, on the very next day and thus, the decree in the previous suit cannot be said to be a compromise decree. Even otherwise, it has been held by the apex Court in Gurpreet Singh v. Chattar Bhuj God (1988) 96 P. L. R. 365, that the compromise must be in writing and signed by the parties and the compromise itself should be capable of being embodied in the form of an instrument signed by the parties. In the present case no compromise signed by the parties was ever reduced to writing. Even the statement of the parties or their counsel were not recorded. It is thus difficult to hold that the decree passed on the basis of written statement would amount to a compromise decree.

Apart from the above, the courts below have concurrently found that the decree dated 3-8-1976 was obtained by the appellant by playing a fraud upon the plaintiff. The learned counsel for the appellant was unable to show as to how this finding was wrong or vitiated. Even in Pyara Singh''s case (supra), it was observed as under :-

"If the plaintiffs had proved that the earlier compromise decree was obtained by fraud then certainly the separate suit would have been competent. In this case the plaintiffs led no evidence to prove fraud. On the other had, they admitted that they had engaged Mr. V. N. Gandhi, Advocate for filling the suit and it is he, who made statement before the Court. Their plea that they had not authorised him to make the statement was not believed by the trial Court and the lower appellate Court has not upset that finding. Once Mr. V. N. Gandhi. Advocate had the authority, the compromise is legal."

The contention of the learned counsel that no suit lay to set aside the decree in the earlier suit is thus without merit and is rejected. The next contention of the learned counsel that particulars of fraud had not been detailed in the plaint is again equally without merit. The parties led evidence on the plea of fraud and the witnesses were cross-examined. Such a plea was not even raised in the Courts below A concurrent finding has been returned that a fraud was played on the plaintiff.

No other point was urged before me.

In view of the observations made above, the appeal fails and is dismissed.