AJAD SINGH Vs. CHATRA

JUDGEMENT

(1.) Leave granted.

(2.) The appellant Ajad Singh has filed a suit for declaration and possession of his right, title and interest over the suit property along with Dilawar Singh @ Dilbag Singh and Silak Ram - pro forma respondents Nos.4 and 5 and for mandatory Injunction against respondents Nos.1, 2 and 3 for removal of superstructures raised by them over the suit lands and for restraining them from interfering with the possession of the appellant. The case of the plaintiff/appellant is that he and respondents Nos.4 and 5 are real brothers and the property in suit came to them in partition effected between them and their uncle Puran. The respondents Nos.1, 2 and 3 have encroached upon the suit lands on 2-1-85 by storing some pucca bricks on the suit land and thereafter have raised some construction over it. The defendant-respondents have not vacated the land in spite of demand by the plaintiff-appellant. The defendants/respondents Nos.1, 2 and 3, filed their written statements denying the right, title and interest of the appellant over the suit land and claimed that they were in possession of the suit land for the last 60 years which had ripened into ownership by way of adverse possession and the construction made over the land was in exercise of that right. It was further alleged that appellants as well as respondents Nos. 4 and 5 had admitted the possession of respondents Nos.1, 2 and 3 of the suit property vide compromise dated 14-10-1985 and thus appellant was prevented by his acts and conduct to pursue the present suit.

(3.) The trial court appointed a Commissioner for inspection of the suit site and record the evidence of the parties. On the appreciation of the evidence led by the parties and the report of the Commissioner, the trial court decreed the suit filed by the appellant. Aggrieved by the said decree, respondents Nos.1, 2 and 3 filed an appeal which was heard by the Additional District Judge, Panipat. The First Appellate Court reversed the decree by placing reliance on the compromise (Exhibit - D1) dated 14-10-1985 which was said to have been effected between the parties in the police station. In paragraph 9 of the Judgment, the Court has held that the compromise (Exhibit - D1) dated 14-10-1985 is a very relevant piece of evidence which admittedly has been signed by Ajad Singh but about which no such plea has been raised by the appellant either in the amended plaint or in the replication filed by him on 4-6-1987 as would enable him to avoid the compromise. There is also no pleading from the plaintiff-appellants side that the said compromise (Exhibit - D1) was obtained by the police forcibly. He has not stated anything about the compromise in his examination-in-chief and only in the cross-examination he has stated that the compromise was effected by use of force in the police station. On perusal of the compromise, the Court has further held that both the sides have resolved the dispute and respondent No.1 could remain in possession of suit property, as, according to the compromise, the appellant has already relinquished the right over the site in dispute on 14-10-1985 (Exhibit - D1) itself. Thus, it is made out that the trial court has wrongly rejected the said compromise (Exhibit-D1) by observing that no such permission was obtained to effect the compromise in the police station. The Court further summarized the effect of compromise that the appellant has relinquished his right in the suit land in view of the settlement (Exhibit-D1) dated 14-10-1985 itself and about which he remained mum and knowingly concealed this fact in the pleadings. Thus, after the examination of the said compromise (Exhibit - D1, it is made out that the plaintiff-appellant agreed to withdraw the suit and conceded that Chatra, the defendant No.1 shall continue to remain in possession of the suit property. On these findings the judgment and decree of the trial court was set aside and the so-called compromise (Exhibit - D1) was held to be binding on the parties.