AKBAR ALI Vs. MOHAMMED FAROOK

JUDGEMENT

(1.) The legality and sustainability of a decree for partition based on a compromise arrived at by the parties in exclusion of a sharer, who remained ex parte in the suit came up for consideration at the instance of the appellant, who was the 10th respondent in the first appellate court.

(2.) It was in the first appellate stage, the respondents 1 to 9 and the appellants entered into a compromise without the juncture of 10th respondent and caused to pass a preliminary decree for partition based on it. The applications submitted by the 10th respondent for re-hearing of the appeal and to condone the delay ended in dismissal before the first appellate court.

(3.) It is the settled law that a suit for partition cannot be maintained unless all the sharers were made parties to the proceedings. The very same principle is applicable in the matter of a decree that can be passed based on a compromise of the dispute involved in a partition suit. Unless the compromise is signed by all the sharers, who are parties to the suit, the court cannot accept the compromise or to pass a decree based on it. The court is duty bound to verify and ascertain whether the compromise is signed and accepted by all the sharers, otherwise, it would stand incomplete and bad in law. The fact that one of the sharers remained ex parte does not itself empower or authorise the remaining parties to the suit for partition to conclude the suit by entering into a compromise, without his/her juncture. There is no limitation in the exercise of jurisdiction to adjudicate the dispute involved in a suit even if some of the respondents/defendants remained ex parte. But the legal position would be different in the matter of a decree that can be passed based on a compromise, especially in a suit for partition, wherein the sharer, who remained exparte must also join as a party to the compromise to effectuate it. A compromise lawfully entered into and signed by all the sharers including the sharer, who remained ex parte alone can be accepted to pass a valid decree of partition on it, otherwise, the compromise decree would stand not binding on the sharer who remained ex parte. Virtually, it would stand incomplete and bad in law. Though it is within the jurisdiction of the first appellate court to hear and dispose of the appeal on merits without hearing the sharer, who remained ex parte, the same principle cannot be adopted in the matter of a decree that may be passed based on a compromise. There are material differences in the jurisdiction that can be exercised while adjudicating a dispute involved in a suit or appeal from that of the jurisdiction to pass a decree by accepting compromise. In the latter case, there cannot be any scope for adjudication, except the question of acceptability of compromise, which would include the jurisdiction to ascertain whether it is lawful and complete. When the compromise is incomplete and bad for non-joinder of all the sharers, the court will have no other option, but to proceed with the suit or appeal, as the case may be by rejecting the compromise. The first appellate court is not justified in passing a decree based on the compromise entered into without the juncture of the sharer, who remained ex parte in the appeal. Hence, the compromise decree passed by the first appellate court is liable to be set aside. I do so.