Ramesh and others vs Krishan Singh and others

L.N. Mittal, J.—Defendants no. 2 to 6 have filed this second appeal. Suit was filed by respondents no. 1 and 2/plaintiffs against respondent no. 3 as defendant no. 1 and against appellants as defendants no. 2 to 6 (not in same seriatim) for partition of 3 kanals 7 marlas land comprised of different khasra/killa numbers being non-agricultural land. The trial court partly decreed the suit and passed preliminary decree for partition of 1 kanal 4 marlas land comprised of killa nos. 26 (0-9), 28(0-9) and 5/9(0-6) holding both the parties to be having half share each therein whereas for the remaining land, plaintiffs were found to be in exclusive possession of 1 kanal 1 marlas land comprised of khasra nos. 272(0-10) and 257 (0-12) whereas defendants were found to be in exclusive possession of 1 kanal 2 marla land comprised of khasra nos. 262 (0-9) and 598 (0-12) and suit regarding the same was dismissed. Defendants preferred first appeal against judgment and decree of the trial court. In first appeal, compromise was allegedly effected between the parties. According to compromise, appellants/defendants were held to be owners in possession of khasra nos. 257(0-12) and 272(0-10) total measuring 1 kanal 2 marlas whereas plaintiffs were held to be owners in possession of 1 kanal 1 marla land comprised of khasra nos. 262(0-9) and 598(0-12) and the remaining land measuring 1 kanal 4 marlas comprised of khasra nos. 26(0-9), 28(0-9) and 5/9(0-6) was to be partitioned, both parties having half share therein, and preliminary decree for partition thereof was to be passed. Learned lower appellate court disposed of the appeal accordingly in view of compromise. Feeling aggrieved, defendant no. 2 to 6 have filed this second appeal.

I have heard learned counsel for the parties and perused the case file.

Counsel for the appellants vehemently contended that according to Order 23 Rule 3 of the CPC (in short, CPC), a lawful compromise is required to be signed by the parties, but in the instant case, statement regarding the compromise recorded by the lower appellate court was signed by defendant no. 1 only and has not been signed by defendants no. 2 to 6/appellants herein and therefore, there is no valid compromise on behalf of the appellants herein. Counsel for the appellants has cited two judgments of this Court in Harbans Lal and Another Vs. Pardip Kumar and Others, and Chand Kaur v. Raj Kaur (died) and others. (1996-3) 114 PLR 523 support his contention that compromise not signed by some of the parties is not lawful compromise.

I have carefully considered the aforesaid contentions, but the same cannot be accepted. There is no dispute with the legal proposition that a compromise to be lawful and valid within the purview of Order 23 Rule 3 CPC is required to be signed by the parties. In the instant case, perusal of lower appellate court file reveals that statement regarding compromise has been made and signed by Kashmir Singh - plaintiff no. 2 and Karam Singh defendant no. 1 in person and also by counsel for both the plaintiffs as well as by counsel for all the defendants. Thus, in the instant case, statement regarding the compromise has been signed by and on behalf of all the parties. Merely because defendants no. 2 to 6 were not present in person and have not personally signed the statement regarding compromise, it cannot be said that there was no valid compromise because the statement regarding compromise on behalf of defendants no. 2 to 6/appellants herein has been signed by their counsel who was authorized to do so. Perusal of vakaltnama given by all the defendants/appellants before the lower appellate court in favour of their counsel Mr. Om Parkash Bansal, Advocate reveals that the Advocate was inter alia authorized to effect compromise also on behalf of the defendants. In view of said authority, since the statement regarding the compromise has been signed by counsel for all the defendants and also by defendant no. 1 himself, it cannot be said that there was no valid compromise on behalf of defendants no. 2 to 6. Requirement of Order 23 Rule 3 CPC that compromise should be signed by the parties has been duly complied with in the instant case because statement regarding compromise was signed by counsel for both the parties (besides defendant no. 1 and plaintiff no. 2 themselves) who were authorized to do so on behalf of the parties. Thus, compromise has been signed by and on behalf of all the parties and it was lawful compromise. Consequently, contention raised by counsel for the appellants cannot be accepted. For the reasons aforesaid, I find no merit in this second appeal. The only question of law raised by counsel for the appellants relating to Order 23 Rule 3 CPC already stands answered, but in the instant case, there was valid compromise satisfying the requirement of Order 23 Rule 3 CPC. The appeal is meritless and is accordingly dismissed.