Pritam Kaur alias Karnail Kaur vs Harpal Singh and Others

S.S. Sudhalkar, J.—Pritam Kaur, who is the appellant in R.S.A. had filed a Civil suit in the Court of Sub-Judge (1st Class) at Ludhiana against respondents Harpal Singh and others for possession of land measuring 179 Kanals 3 Marias. According to her case, the land was owned by her brother Karnail Singh, who died on 11-7-1970. He left behind his widow Harbhajan Kaur and his sister. Harbhajan Kaur died on 16-7-1970 leaving behind the appellant as heir. It is contended that the defendant-respondent had taken possession of the land illegally and that they claimed that Karnail Singh had executed a Will bequeathing property in favour of respondents Nos. 1, 2 and 3. However, no such Will was executed by Karnail Singh and that the Will is fictitious and a forged document.

The suit was contested. Ultimately by the judgment dated 14-10-1980, the suit was dismissed. The Will in favour of respondent-defendant was found to be genuine.

The appeal filed against the judgment by Pritam Kaur was also dismissed. Pritam Kaur then filed the Second Appeal No. 1613 of 1982. There was a compromise in the second appeal and it stood allowedd in terms of compromise. The compromise is at Annexure A/1 on the record. According to the terms, the respondents were persuaded to accept that the Will of late Karnail Singh was not a valid Will. Therefore, the suit deserves to be allowed. The defendant respondent admitted that they have no claim to the property in dispute and the appellant Pritam Kaur is the only rightful owner of the property. It was further mentioned that in view of the compromise arrived at on 15-1-1999, possession of the entire land in dispute has been handed over. It was further agreed in the compromise that the plaintiff-appellant shall forego her right to claim mesne profits in respect of the land in dispute. The defendant-respondents stated that they had no objection in decree for possession being passed in favour of the plaintiff-Pritam Kaur. It was further settled that any claim/demand maintainable by the Punjab Agro Industries Corporation relating to the portion of the land shall be paid/settled by the plaintiff-appellant and the defendants have no objections in respect thereof. It was further agreed that both the respondents Nachhattar Singh and Nasib Kaur were not the legatees under the Will of late Karnail Singh.

In view of the compromise the R.S.A. was disposed of on 16-2-1999.

On 26-2-1999, the Review petitioner M/s. Duke International Private Limited, G.T.Road (West) Ludhiana, gave an application under Order 1, Rule 10 to be impleaded as respondent and also gave a Review Application challenging the compromise. (The Duke International shall be referred to as the "applicant" hereinafter.)

The case of the applicant is that the appellant and the respondents in the appeal colluded with each other and defeated the rights of the applicant. It is further contended that the respondents had entered into three agreements dated 25-6-1982 with the applicant, for the sale of the lands. It is further contended that in part performance of the said agreement, possession of the land was also passed on to the applicants by the defendants and they are in uninterrupted possession of the same. They have produced the Khasra-Girdawri for the period from Sauni 1994-98. It is further contended that the respondents had not disclosed to the applicant that an appeal was pending in the High Court in respect of the property in dispute for which the agreements were entered into and it was disclosed only when the limitation for the suit for executing and registering the sale-deed was about to expire. To over-come the same, it was agreed between the applicant and the respondents that new agreement for execution and registration of the sale-deeds be made and consequently three new agreements were made on 17-6-1985 for extension of limitation. It is further contended that the agreements of the sale-deed were to be executed after the decision of this Court after getting copy of the judgment in the R.S.A. and the respondents had been assuring the applicant that there was no need for the applicant to get itself impleaded as party in the R.S.A. because its interest was being watched diligently and properly by the respondents.

Thereafter on 30-4-1999 when the Review Application came up for hearing before this Court, counsel for the parties made certain submissions before the learned single Judge and in view of the submissions, the following order was passed by the learned Judge.

"During the course of arguments, Mr. O.P. Hoshiarpuri has made a statement that he will not raise objection to the validity of the Will in case the applicant files a suit for specific performance of the agreement. However, he will raise objections regarding the suit being time barred and the validity of the agreement. Mr. P.S. Brar has also consented to the said statement of Mr. O.P. Hoshiarpuri.

Mr. Surneet Mahajan states that in view of the above statements of Mr. O.P. Hoshiarpuri and Mr. P.S. Brar, he does not press the Review Application.

This application stands disposed of accordingly".

This order, now by this CM No. 3844-C of 1999, is being challenged by the appellant.

We have heard the learned counsel for the parties.

Counsel for the appellant has argued that the appellant had, by virtue of compromise decree in the R.S.A. obtained a right and the right could not be washed away. Moreover, the transfer of property by the respondents to the applicant were during the course of litigation and therefore, was lift by Section 52 of the Transfer of Property Act.

It was also argued that no concession could have been made by the counsel for the appellant in the Review petition. He also argued that the appellant was not knowing about the transfer and even if the appellant knew it, she was entitled to ignore it. He further argued that by the order dated 16-2-1999, the order recording the compromise is neither reviewed nor recalled nor varied. He also argued that the concession by the Counsel for the appellant on 30-4-1999 is a concession in law and he should not have been allowed to concede, because the compromise could not be set-aside. He has also argued that the concession is contrary to the reply in the Review Application. It is further argued that the applicant had no legal right to get the compromise decree reviewed because there was no decree made against the applicant and the applicant is trying to step into the shoes of the defendants. He further argued that in view of the submissions, the review application was not pressed for and when review Application as not pressed for, it cannot be treated as allowed. He also argued that the subject matter of the agreement to sale is regarding lands measuring 21 Kanals and 2 Marias and therefore, except for the lands of 21 K 2 M, the Will will not be operative.

Counsel for the appellant has relied on various authorities. He has relied on the case of Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanaslus reported as AIR 1954 SC 526. Relying on the principle laid down in the said case, he argued that an erroneous concession of law made by an Advocate cannot be relied upon for saving the plaintiffs. He has also relied on the case of Uptron India Limited Vs. Shammi Bhan and Another, in which it has been held that a wrong concession made by counsel on the question of law is not binding to his client and such a concession cannot constitute a binding precedent. It may be mentioned here that there was no concession made by the counsel for the appellant regarding any point of law. The concession made is that the appellant will not raise any objection to the validity of the Will if the review petitioner files a suit for specific performance of agreement. However, the appellant''s advocate kept the right, of raising objection regarding the suit being time barred, intact. It was therefore, the agreement between the parties not on the question of law or interpretation of law but as to the question of rights of the parties which they could raise or could not raise in the further proceedings. It may be noted that because of this concession, the applicant did not press for the Review petition. It may further be noted that the appellant is not making allegations against the counsel who made a statement on her behalf. The concession made by the counsel for the appellant on 30-4-1999, recorded in the order of even date, cannot be said to be concession on the point of law or the concession which the counsel could not make. He has further relied on the case of Sarvinder Singh Vs. Dalip Singh and Others, . In that case, it is held by the Supreme Court that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way, effected the rights of the applicant except the order of authority of the Court.

Learned counsel for the appellant has cited the case of Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, . It has been held therein that as a purchaser pendente lite, a person will be bound by the proceedings taken by the party in whose favour the decree is passed in execution of her decree and justice requires that she would be given an opportunity to protest her rights. He has relied on the case of AIR 1937 260 (Privy Council) . It has been held therein that a transferee is representative in interest of mortgagor judgment-debtor and is bound by the mortgage decree and the Mortgagee decree-holder can proceed to execute decree against transferee for recovery of possession. He has further relied on the case of Mt. Sant Kaur v. Teja Singh reported as AIR 1946 Lah142 ). It also deals with the doctrine of Us pendens.

Learned counsel has also relied on the case of New Delhi Municipal Committee Vs. H.S. Rikhy, wherein it has been held that there cannot be any estoppel against the statute.

In this case, the question of lis pendens could have been of importance if the concession was not made by the learned counsel on behalf of the appellant on 30-4-1999. Having made the concession, it is a statement amounting to compromise as it is apparent that the applicant has, in view of the statement, not pressed for the Review application. There is no concession on any point of law but is a concession regarding giving up a particular right, which cannot be said to be not legal. An agreement regarding raising objection to the validity of Will or otherwise cannot be said to have the effect of estoppel against the Statute. Therefore, even if, the appellant could have challenged any action of the applicant by virtue of the provisions of Section 52 of the Transfer of Property Act, the concession of the right or giving upon of the right by virtue of the statement made on April 30, 1999 before the Court has resulted in debarring the appellant to raise such a point in future.

Mr. Mahajan, learned counsel for the applicant has relied on the case of P.K. Vasudeva Vs. Zenobia Bhanot, It has been held in that case that where an order is passed on concession of the counsel and the other party acted on such order, such party could not be permitted to challenge the same as there remained nothing to challenge, the order having exhausted itself. He has also relied on the case of Suvaran Rajaram Bandekar and Others Vs. Narayan R. Bandekar and Others, . It has been held therein that in case of any consent decree on compromise, the Court would be loath to interfere with the terms thereof by way of modification unless both the parties give consent thereto.

Learned counsel has also relied on the case of Tamil Nadu Electricity Board and another Vs. N. Raju Reddiar and another, In that case, the practice of filing repeated review petitions and clarification petitions by changing of advocates was deprecated.

To appreciate the arguments and the authorities cited by the learned counsel for the applicant it will be appropriate to repeat that a statement was made by the counsel. There is no allegation against the counsel and the counsel has not come forth to show that he had made a mistaken statement before the Court. Again , though the compromise decree is alleged to be a conclusive decree by the appellant, by making the concession, the learned counsel gave up the right to challenge the authority of Will, though kept the right to raise the objection regarding suit, if filed, being time barred open. There is no concession on the point of law. Will was held to be valid by the trial Court and the lower appellate Court. By compromise in R.S.A. it was held to be not valid and by the concession recorded in the impugned order, the counsel for the appellant had stated that he would not raise objection to the validity of the Will. It is certainly not a concession on the point of law.

In view of the above reasons, we do not find that the impugned order should be Interfered with. The impugned order suffers from no infirmity. It cannot also be said to be illegal.

As a result, this Civil Misc. application is dismissed.