Smt. Bhagan and others vs Het Ram

Gopal Singh, J.—This is revision petition by Smt. Bhagan and Parsa defendants against Het Ram plaintiff. It is directed against the order of Shri S.N. Parkash, Senior Sub-Judge with enhanced appellate powers Hissar, dated May 24, 1971 rejecting the appeal of the defendants from the order of Shri K.K. Aggarwal, Sub-Judge 1st Class, Sirsa dated April 8, 1970 recording compromise between the parties.

On January 4, 1968, Smt. Bhagan defendant No. 1 executed mortgage deed in favour of the plaintiff mortgaging with possession 178 Kanals of agricultural land situate in village Chilkani Dhab. The document was registered. On July 24, 1969, the plaintiff filed a suit against the defendants for declaration to the effect that the plaintiff was mortgagee in possession of the land mortgaged with him and that the entries in khasra girdawaries pertaining to the land in dispute showing possession of defendant No. 1 with effect from Rabi, 1968 were liable to correction with the further relief of permanent injunction restraining the defendants from interfering with the possession of the plaintiff. Defendant No. 2 was impleaded as a party on the ground of his interference with the possession of the plaintiff. On 14th November, 1969, written statement was filed on behalf of the defendants. It was pleaded that in fact the possession of the land mortgaged had not been delivered to the plaintiff and remained with defendant No. 1 and that the plaintiff had agreed to take 1/3rd batai of the mortgaged land from defendant No. 1. The defendants admitted the execution of the mortgage deed. On 2lst November, 1969, the following solitary issue was framed:-

Whether defendant No. 1 is in possession of the suit land since execution of the mortgage deed as alleged in para 2 of the written statement.

The case was adjourned for evidence of the parties to March 16, 1970. On that date, evidence of the defendants was recorded and the case was adjourned to April 8, 1970 for evidence of the plaintiff. On that day Bir Bal was examined on behalf of the plaintiff. Daring the course of the examination of that witness, the parties compromised and their statements were recorded. Shri Prem Chand, counsel for the defendants stated that the suit of the plaintiff he decreed on the condition that if Smt. Bhagan defendant paid to the plaintiff of deposited in Court before January 31, 1971, sum of Rs. 12,000/- due on account of mortgage money along with consolidated amount of interest @ Rs. 100/- per mensem, the land mortgaged would stand redeemed and that if she commits default in so making the payment, the suit of the plaintiff for declaration along with the possession would stand decreed. It was further undertaken on behalf of the defendants that if during the period of time, during which the liability of defendant No. 1 in respect of the mortgage money and the interest due was to be discharged is not discharged, the plaintiff will be entitled to further recover the interest or the produce of the mortgaged land by way of remedy as available to him in law, that the plaintiff shall have no light to interfere with the possession of the defendant over the land mortgaged till January 31, 1971 and that the parties shall bear their own costs.

The above statement of the counsel for the defendants was followed by a statement made by the plaintiff and his counsel Shri N.N. Kapur. It was stated by them that the above statement of the counsel for the defendants had been read out to them, that in terms of that statement, the suit be decreed and that the parties would bear their respective costs. On that date, the trial court passed the order in terms of the statements of the parties. As a result of the compromise between the parties, the suit was decreed and a consent decree in terms thereof was drawn up.

The only point raised by Shri H.K. Sarin appearing on behalf of the petitioners is that the relief for possession of the mortgaged land could net be granted to the plaintiff inasmuch as the plaintiff never sued for possession of the mortgaged land. The plaintiff sued for declaration to the effect that be was a mortgagee and was in possession of the land mortgaged with him. that Khasra Girdawari entries from Rabi, 1968, made in favour of defendant No. 1 be corrected and that the defendants be permanently restrained from interfering with his possession over the mortgaged land In the written statement, the defendants stated that defendant No. 1 was in possession of the mortgaged land as the possession of the land had not been delivered to the plaintiff in spite of execution of the mortgage deed in his favour and the possession continued with defendant No. 1. It 19 this contest regarding possession of the mortgaged land between the parties that gave rise to the only issue to the effect as to whether defendant No. 1 was in possession of the suit land since execution of the mortgage deed. Thus, the assertion of possession by the plaintiff in the plaint that he was in possession of the mortgaged land was controverted by the defendants in their written statement and they averred that the possession of the land was with defendant No. 1. It was agreed as one of the terms of the compromise that if defendant No 1 failed to repay before January 31, 1971 the mortgage money along with the interest as stipulated, the plaintiff would be entitled to recover possession of the land, which the defendant admitted was with her and which was asserted by the plaintiff to be with him and hence it was agreed that decree for possession be passed in favour of the plaintiff against the defendants accordingly. Such a compromise will fall within the scope of Order 23, Rule 3, C.P.C. That rule runs as follows:-

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

According to that rule, if a suit is adjusted or the defendant satisfies the plaintiff in respect of whole or any part of the subject matter of the suit, the Court can record such compromise or satisfaction. It is the counsel for the defendants, who while agreeing to the terms of compromise agreed as stipulated to give up the possession, which defendant No. 1 was claiming to be hers. By such agreement, she suffered decree for possession in favour of the plaintiff. This term of compromise pertains to the subject-matter of the suit, namely the mortgaged land. That term of compromise is covered by rule 3. If a term of compromise is arrived at by way of satisfaction of the plaintiff by the defendant in respect of the subject-matter of the suit, it is not necessary that that term of compromise must be in terms of the relief sought by the plaintiff. Thus, the point raised en behalf of the petitioner has no force.

In the result, the revision petition fails and is dismissed. There will however, be no order, as to costs.