Madan Lal vs Ved Parkash Bhatnagar

Swatanter Kumar, J.—The learned trial Court vide its judgment and decree dated 13.11.1995 dismissed the suit for declaration and permanent injunction filed by one Shri Ved Parkash Bhatnagar, plaintiff. It was averred by the plaintiff that he was owner in possession of the house situated in Mohalla Kayasthan, Rohtak. There are three rooms adjacent to the southern wall of the plaintiff. The wall of the middle room is exclusively of the plaintiff whereas wall towards the western side is common that of the plaintiff and the defendant, having a thickness of 22" and the same is marked C&D. It was further alleged that the defendant had pulled down the wall CD alleging it to be his exclusive wall and had reconstructed the same by constructing a room on the first floor. The defendant was threatening to pull down the wall at point C & D on the ground floor now which is old one on the basis that it was his exclusive wall. If the defendant succeeds in his designs, the plaintiff would suffer irreparable loss and damage.

The suit was contested by the defendant who stated that point B to C was not exclusively of the plaintiff and the wall of the room towards western side is common between the parties. It was contended that defendant has demolished the portion of the old wall which was 22 inches and in order to construct the new wall with the marks ABCD it was alleged that the plaintiff had encroached upon the area of the wall which he has no right. The plea of there being a specific gap between the house of the plaintiff and the defendants was taken by the defendant.

The learned trial Court framed as many as six issues after giving opportunity to the parties to lead evidence and had dismissed the suit. The judgment and decree of the learned trial Court dated 13.11.1995 was assailed in appeal before the learned first Appellate Court. During the pendency of the appeal the parties made statements before the learned First Appellate Court. The appellant-plaintiff had made a statement on 21.11.1996 on oath that the map Ex.P.1 which he had filed with the suit is a correct one and there was no gap between the two walls as alleged by the defendants at the spot. He further stated that if the site in question is examined by the Court and two walls are noticed at DC point and a gap is found therein, then his appeal should be dismissed by the Court otherwise his appeal may be accepted and suit decreed. The respondent-defendant thereafter made a statement on oath that he had heard the statement of the appellant and he agrees that the appeal may be dismissed or allowed upon site inspection as stated by the appellant. He accepted the statement.

The learned first Appellate Court inspected the site in question and after inspection in presence of the parties allowed the appeal; set aside the judgment and decree of the trial Court. The relevant part of the judgment of the First Appellate Court dated 28.11.1996 reads as under:-

" During the course of lengthy arguments, spanning over two dates of hearing, the parties chose to make statements that controversy be decided by this court after inspecting the spot. The appellant in his statement made before this court alleged that the wall shown by letters DC in the site plan Ex.P1 is a single wall without any gap and in case, during inspection any gap is found between, the house of the appellant and the respondent, his appeal be dismissed, in the other event, his appeal be allowed. This statement made by the appellant was accepted by the respondent.

The spot was inspected by the court on 26.11.1996 in the presence of Shri M.S. Jain, Learned counsel for the appellant and Shri N.N. Girhotra learned counsel for the respondent. After spot inspection of the houses of the parties, it is difficult to hold that there is any gap between the two houses or there are two separate walls. There is a single wall separating walls. There is a single wall separating the house of the appellant and that of the respondent because there is an almirah at point ''X'' in the portion of the wall ''AB'' towards the house of the appellant. In case of the entire wall would have been the exclusive property of the respondent, the question of existence of almirah in the room of the appellant would not have arisen. So, the entire wall marked by letters A, B, C, D, as shown in the site plan Ex.P1 attached with the plaint is held to be the joint wall of the parties upon which both the parties will have right to raise construction. In terms of these findings, appeal succeeds. The judgment and decree of learned trial Court are set-aside. In view of the fact that the matter is being decided on the compromise statements made by the parties and after spot inspection, the parties are left to bear their own costs in appeal. Decree sheet be prepared. L.C. record will revert back. Appeal file be consigned after compliance."

It is this judgment and decree of the learned trial Court which has been assailed in this regular second appeal.

The basic argument of the learned counsel for the appellant is that on the basis of the statements of the parties, the learned First Appellate Court could not have up-set the decree of the trial Court as it was a finding not supported by record.

This argument has no merit. Firstly, the parties had made a statement on oath in Court to have their appeal disposed of in a particular manner. The learned first Appellate Court accepted the statements of the parties and disposed of the appeal accordingly. In normal course the parties would be estopped from challenging the said finding on any ground because it is not even disputed before me that the learned first Appellate Court accepted the statements of the parties and disposed of the appeal accordingly. In normal course the parties would be estopped from challenging the said finding on any ground because it is not even disputed before me that the learned first Appellate Court inspected the site in presence of the parties. The parties cannot be permitted to approbate and reprobate at the same time. Having taken a particular stand before the learned First Appellate Court the parties are bound in law to bind by the result. Having taken advantage of each other''s statement and also having altered their stand of narrowing the controversy to a limited point and leaving it to the inspection of the Court, they now would be stopped from pleading to the contrary. This argument need not detain me any long in view of the judgment of the Full bench of this Court in the case of Mrs. Florabel Skinner and Ors. v. Jai Bajrang Kala Mandir Ran Lila Mandal, Hissar (1980)82 P.L.R. 775 (F.B.), where the Court held as under:-

"An offer made by one person on acceptance by the person to whom such offer is made, becomes an agreement under the law of Contract and none of the parties can resile therefrom. On this principle, the statement made by the plaintiff, in the instant case, that the suit be decided on the basis of statement made by defendant on acceptance by the defendants became a binding contract between the parties and none of the parties could resile therefrom at any time after the contract was complete. Therefore, the plaintiff, on the tacts of this case, could not withdraw the offer even before the statement of defendant was recorded.''

Looking it from another point of view, there appears to be no justification for permitting the parties to resile from their statements which have already attained finality in the proceedings before the Court of competent jurisdiction. In any case, it cannot also stated to be a case of no evidence because both the parties had adduced evidence, documentary and otherwise, and placed on record the site plans in support of their case. The conclusions arrived at cannot be stated to be based on no material, whatsoever, and even on that account the exception, if any, to the above rule, as enunciated by the Full Bench in the case of Mrs. Florabel Skinner (supra) is not applicable to the facts and circumstances of the present case. It is neither the question arising in the present case nor would I venture to comment whether such course of action could have been adopted by the learned First Appellate Court in the facts of the present case. Before me, it is conceded that it was a joint request of the parties, which was accepted by the Court and the Court had actually inspected the site in question. Where these basic facts remain undisputed, the judgment of the learned First Appellate Court obviously would not call for any interference by this Court in the regular second appeal. Some sanctity has to be attached to the statements made before the Court of competent jurisdiction. It cannot be a casual affair for the parties to make such statements before the Court and when on their request the Court ad6pts a particular course of action and then if the results are adverse to the interests of a particular party, the party should be permitted to resile from such a statement. A party is expected to consider ail the pros and cons and view the consequences flowing therefrom before making such solemn affirmation before the Court. Particular view being taken by the Court after inspection of the site by itself could not form basis of a valid attack of such conclusion or judgment.

For the reasons aforesaid, I am unable to see any merit in this regular second appeal, which is dismissed with costs, which are assessed at Rs. 1500/-.