Darshan Singh vs Jeet Singh And Ors

This first appeal is directed against the judgment and decree dated 3/11/2018 passed by the Addl. District Judge, Suratgarh District Sri Ganganagar, whereby, the application filed by the defendants under Order VII Rule 11 (d) read with Order XXIII Rule 3A CPC has been allowed and the suit filed by the appellant- plaintiff has been dismissed.

The appellant - plaintiff filed a suit for declaration inter alia with the averments that a land was put for auction by the Municipal Board, Suratgarh on 28/2/1978; in the auction the plaintiff along with father of defendant nos. 4 and 5 participated. The plaintiff gave highest bid and deposited the entire amount with the Municipal Board and became owner of the plot in question. The plaintiff presented stamps for execution of sale deed on 5/10/2002 when he was informed that after the lease was prepared for the purpose of registration, he would be informed. The plaintiff, who was resident of Patiala, went back. The land in question was left with defendant no.1, who is real brother and defendant no. 4, who is a close friend. Whereafter the plaintiff was informed about the execution of the sale deed, when the plaintiff came for ten minutes to Suratgarh and gave his photo and signed the papers.

It is alleged that the said papers were used for preparing concocted perpetual lease deed, wherein, names of defendant nos. 1 to 7 were included. The defendants and plaintiff started using the land.

On 9/7/2010 the plaintiff was called by the defendant nos. 1 to 7 and was told that certain papers were required to be signed pertaining to the plot in the court. On reaching the court, the plaintiff came to know about the fraud committed by defendant nos. 1 to 7, wherein, the plot, which was purchased by the plaintiff alone was got registered in the names of plaintiff and seven persons, whereby, 1/5th portion was registered in the name of plaintiff and 4/5th share was registered in favour of defendants.

It was then alleged that on account of persuasion by the defendants, the plaintiff signed the compromise for partition of the suit plot and that the defendant Jeet Singh told him that entire land would ultimately be transferred to him. It is claimed that on the assurance of Jeet Singh, the plaintiff signed the compromise for the disputed plot in the court, which resulted in partition between the parties, however, on 1/7/2012 the defendants refused to execute the sale deed in favour of the plaintiff and, therefore, the suit was being filed. Allegations about the plot having been purchased by plaintiff alone and defendants fraudulently getting their names entered in sale deed for 4/5 th portion of the land were made and it was prayed that the plaintiff be declared owner of the entire plot in question.

The defendants filed application under Order VII Rule 11 CPC read with Order XXIII Rule 3A CPC with the averments that the court of Addl. District Judge (Fast Track), Anoopgarh had based on compromise decreed the suit for partition between the parties on 9/7/2010 and as the subject matter of the present suit was directly involved in the judgment dated 9/7/2010 i.e. the fact of compromise, the suit was barred under the provisions of Order XXIII Rule 3A CPC.

The application was contested by the appellant inter alia alleging that the decree was got passed fraudulently and the suit was maintainable.

The trial court, after hearing the parties, with reference to para 5 of the plaint, wherein, the plaintiff had admitted having visited the court on 9/7/2010 and signed the compromise, came to the conclusion that based on the compromise the property in question already stands partition by metes and bounds and in view of the judgment of Hon'ble Supreme Court in R. Rajanna vs. S.R.Venkataswamy : (2014) 15 SCC 471 allowed the application and dismissed the suit.

Learned counsel for the appellant vehemently made submissions that the trial court was not justified in dismissing the suit under the provisions of Order VII Rule 11 CPC without recording the evidence of the parties.

Submissions were made that from the averments made in the plaint, the suit was not barred and as such the provisions of Order VII Rule 11 CPC had no application.

Submissions were also made that as the property was purchased by the appellant alone, he was entitled to get a declaration in this regard from the competent court and, therefore, the rejection of suit was not justified.

Learned counsel for the respondents supported the judgment and decree impugned. It was submitted that the pleas and the relief claimed in the suit were essentially against the decree passed by the court, based on the compromise, on 9/7/2010 and merely because the plaint was drafted cleverly, the same cannot escape the rigors of Order XXIII Rule 3A CPC and as such the trial court was justified in rejecting the plaint.

Reliance was placed on Gopal Lal vs. Babu Lal & Ors. : 1996 (1) RLW Raj. 30.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

It is not in dispute that based on the compromise between the parties, the suit for partition pertaining to the suit property between the parties to the present suit was decreed by the competent court on 9/7/2010. From the plaint averments also, it is not in dispute that the plaintiff appellant has signed the compromise, however, the plea raised is that the compromise was signed under undue pressure / misrepresentation. Once the suit for partition has been decreed between the parties, to which the plaintiff is also a party, the same necessarily means that the parties are co-owners of the plot in question, based on which the decree dated 9/7/2010 was passed.

The plea raised in the present suit is diametrically opposite to the decree passed on 9/7/2010 as the plaintiff claims himself to be sole owner. If the suit was to be decreed, the same would result in setting aside of the decree dated 9/7/2010 passed by the competent civil court, which relief is not permissible in law.

Further, the provisions of Order XXIII Rule 3A reads as under:

"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."

The provision is explicit, which bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful, which precisely is the plea raised by the plaintiff in the present suit.

Hon'ble Supreme Court in Pushpa Devi Bhagat vs. Rajinder Singh & Ors. : (2006) 5 SCC 566 has inter alia laid down 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) Rule 1 Order 43.

(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 of 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....." In view of the above fact situation and the legal position as settled by the Hon'ble Supreme Court, it is apparent that the present suit filed by the plaintiff, which circuitously seeks setting aside of the decree dated 9/7/2010 passed for partition of the suit plot based on the compromise, which is clearly barred under the provisions of Order XXIII Rule 3A CPC and, therefore, the trial court was justified in rejecting the plaint under Order VII Rule 11(d) CPC. The judgment passed cannot be faulted on any count.

In view of the above discussion, there is no substance in the appeal. The same is, therefore, dismissed.

No order as to costs.