Rajinder Parshad vs Sohan Lal

J.V. Gupta, J.

The plantiffappellant filed the suit to preempt the sale of 10 kanals 15 marlas of land situated within the revenue estate of Assandh, District Karnal.

The sale deed was executed on July 22, 1983. The suit was filed on the basis that the plaintiff was the cosharer in the suit land as well as on the basis that he was the vendor''s brother. The suit was contested on behalf of the vendeesdefendants. It was denied that the plaintiff was the brother and the cosharer in the suit land, as claimed. However, the trial Court vide judgment and decree dated June 14, 1985, decreed the plaintiff''s suit on payment of Rs. 46,300/. Dissatisfied with the same, the vendees filed the appeal in the Court of the District Judge, Karnal. During the pendency of the appeal, the defendants moved an application for amendment of the written statement so as to plead that the property was situated within the municipal limits of Assandh town and, therefore, was not preemptible. It was also sought to be pleaded that the defendants had raised two residential rooms over the site. Therefore, on that ground also, the suit was liable to be dismissed. The said amendment of the written statement was allowed by the lower appellate Court on payment of Rs. 150/ as costs. Consequently, two additional issues were framed, which read as under :

Whether the property in suit is located within municipal limits of Assandh town and is for that matter not preemptible, as alleged ?

Whether the vendeesdefendants have raised two residential rooms over the site and if so, when, at what cost and to what effect ?

The case was then remanded to the trial Court with the direction to receive evidence of the parties on the said issues and to submit its report. However, when the case came up for recording evidence before the trial Court, the parties entered into a compromise and made an application dated August 29, 1986, in that behalf. The statements of the parties were also recorded. Consequently, the trial Court sent back the case to the learned Additional District Judge for passing necessary decree on the basis of the compromise. On receipt of the file by the said Court, the defendants moved an application dated September 9, 1986, before the Additional District Judge pointing out that the case had been remanded to the trial Court with definite directions to receive evidence of the parties and to submit its report and, therefore, it could not record compromise of the parties and in any case, the compromise did not answer the requirement of Order XXIII Rule 3, Code of Civil Procedure (hereinafter called the Code). It was, therefore, prayed that the file be retuned to the court concerned with directions to receive evidence on additional issues as framed by the lower appellate Court. The learned Additional District Judge vide order dated October 23, 1986, dismissed the said application of the defendantsvendees and found :

"For all the reasons stated, I am of the opinion that it is hardly necessary to reremand the case to the court below for receiving evidence of the parties on the modified issues because the matter has already been compromised. In consequence, the application dated 9th September, 1986 move by the appellants is dismissed."

Dissatisfied with the order dated October 23, 1984, the defendants again moved an application dated November 11, 1986, seeking review of the aforesaid order on the ground that it had been discovered that the State Government had excluded the sales of the lands falling in the areas of any Municipal Committee in the State of Haryana, from the right of premption vide notification dated October 3, 1985, which fact was not within their knowledge and in any case, in view of the notification, the impugned compromise which is against public policy, could not be sustained. Another ground urged in support of the application for review was that the compromise did not effectuate substitution of parties which is the spirit of the Punjab Preemption Act. That application was contested on behalf of the plantiffpreemptor. The learned Additional District Judge did come to the conclusion :

"It has already been observed that the application does not answer to the requirements of Order 42 Rule 1, CPC, and, therefore, there is no point for review. Accordingly, without prejudice to the final result of the appeal which is also being disposed of by this judgment, the application for review is dismissed with no orders as to costs."

In spite of the dismissal of the said application, the learned Additional District Judge came to the conclusion that the compromise clearly offended the notification dated October 3, 1985, which had taken away the right of preemption in respect of the sales of land situated within the municipal limits in the State. According to the lower appellate Court, to uphold the decree which has been passed in favour of the plaintiff and which has been challenged in appeal, would be in direct conflict with the said notification and for that matter, will be against public policy. This according to the Additional District Judge, had vitiated the compromise. The second ground for setting aside the compromise was that during the pendency of the appeal after the compromise, the Supreme Court had laid down in Atam Parkash v. State of Haryana, 1986 RLR 226 : 1987 RRR 116, that the provisions of Section 15(1) of the Punjab Preemption Act, which recognise the consanguinity for purpose of the Punjab Preemption Act, has already been struck down. The judgment in Atam Parkash''s case (supra) was handed down by the Supreme Court on 24th October, 1986, i.e., after the date of compromise in this case, i.e., 23rd October, 1986. In view of this, the learned Additional District Judge found that in spite of order dated 23rd October, 1986, in which the compromise entered into between the parties was found to be in order, the appeal has to be accepted in view of the material brought to the notice of the Court which goes to the root of the case. According to the learned lower appellate Court, the upholding of the impugned judgment and decree will be in direct conflict with the public policy on which the notification dated 3rd October, 1985, which has exempted sales of lands falling within the municipal limits in Haryana from exercising the right of preemption is based. Ultimately, the plaintiff''s suit was dismissed. Dissatisfied with the same, the plantiffpreemptor has filed this appeal in the Court.

The learned counsel for the appellant contended that once the parties had entered into the compromise and the compromise was upheld by the lower appellate Court vide detailed order dated 23rd October, 1986, there was no occasion for the lower appellate Court to redecide the matter and to accept the appeal. According to the learned counsel, even the notification dated 3rd October, 1985, was prospective in operation and, therefore, the suits filed earlier were not affected thereby. In any case, argued the learned counsel, the said notification was there when the parties had entered into the compromise on 23rd October, 1986, and therefore, there was no occasion for the lower appellate Court to set aside the compromise; particularly when the same had been upheld earlier vide order dated 23rd October, 1986. According to the learned counsel, the question decided vide order dated 23rd October, 1986, had become final and will operate as res judicata between the parties.

On the other hand, the learned counsel of the vendeesdefendants submitted that vide order dated 23rd October, 1986, the application in the form of objections filed by the defendants was dismissed, but the appeal still remained pending and therefore, the lower appellate Court rightly found that it was not a case of review. Rather, the compromise being against public policy, the same was to be set aside and the plaintiff''s suit dismissed. According to the learned counsel, the said compromise dated 29th August, 1986, was against the notification dated 3rd October, 1985 as well as against the judgment of the Supreme Court in Atam Parkash''s case (supra), rendered on 24th October, 1986. Thus, argued the learned counsel, there was nothing wrong or illegal in dismissing the plaintiffs suit.

I have heard the learned counsel for the parties and have also gone through the relevant record.

Admittedly, no decree was passed by the lower appellate Court on the basis of the compromise even while dismissing the objections filed by the defendants vide order dated October 23, 1986. Before the decree could be passed on the basis of the compromise, the Supreme Court judgment in Atam Parkash''s case (supra) had been delivered. It was, therefore, obligatory on the part of the lower appellate Court to take notice of the same in view of the provisions of Rule 3 of Order XXIII of the Code, which provides that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part and lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. In view of the notification issued by the State Government and the judgment of the Supreme Court in Atam Parkash''s case (supra) the plaintiff had no right of preemption at time of the decision of the appeal assuming its decision on the basis of the compromise, recorded by the trial Court. In these circumstances, it could not be successfully argued on behalf of the plantiffappellant that the Additional District Judge had no jurisdiction to pass fresh orders in view of the earlier order dated October 23, 1986. By virtue of the said order, the objections filed on behalf of the defendants were dismissed, but no decree as such was passed on the basis of the compromise recorded by the trial Court. In these circumstances, the lower appellate Court rightly found that to uphold the decree which has been passed in favour of the plaintiff and which has been challenged in appeal would be in direct conflict with the notification and for that matter, against the public policy. Similarly the judgment of the Supreme Court in Atam Parkash''s case (supra) delivered meanwhile also could not be ignored which took away the right of preemption of the plaintiff being a brother of the vendor. The learned Additional District Judge rightly observed :

"Thus considered from any angle, the suit of the plaintiff cannot stand the test of scrutiny and has to be dismissed because the existence of custom had to be proved by the preemptor, namely, the respondentplantiff which he has failed to do. The plaintiff had also asserted his superior right being cosharer in the khata. This right also arose out of kinship which the Hon''ble Supreme Court has not recognised in Jagdish and others (supra). In this way, superior right of plaintiff both as bother as also as cosharr in the khata from which the land in suit was sold stands frustrated because both the judgments of the Hon''ble Supreme Court have been delivered during the pendency of the appeal."

In this view of the matter, I do not find any illegibility or infirmity in the judgment of the lower appellant Court as to be interfered with in second appeal.

Consequently, this appeal fails and is dismissed with no order as to costs.