DURAISWAMY MUDALI Vs. K JAYARAMA MUDALI

JUDGEMENT

(1.) THE second defendant is the appellant. THE first respondent herein filed a suit for declaration and injunction or in the alternative for possession.

(2.) THE case of the plaintiff is as follows: THE plaintiff is the owner of the suit property having purchased the same under sale deed dated 7.4.1971. THE said sale deed was preceded by an agreement dated 3.4.1971. Ever since the date of sale, the plaintiff has been stocking hay in the suit property. THE defendants are close relations and they are threatening that they would not allow the plaintiff to be in peaceful possession of the suit property. THE entire site is surrounded by a compound wall on the south north and east bounded on the west by Chellammal cattle shed on the south and east by a street and on the north by the site purchased by the first defendant's father. Originally the property was the joint family property of Subramania Pillai, Balakrishnan Pillai and Ramachandra Pillai. THEy were living in the property in a house and subsequently, they shifted to various places. THE suit property is the middle portion of the entire site. In the partition between the brothers, the suit property was allotted to Balakrishnan Pillai. Subramania Pillai's allotted share was vacant and with the permission of Radhakrishnan, the first defendant was using it between 1971 and 1972 for about two years. Except for that permission, the defendants were never in possession of any portion of the property. THE plaintiff continued to enjoy the suit property as the owner. Hence, the suit is filed for declaration and injunction or in the alternative for recovery of possession.

(3.) THERE is no representation for the respondents, even though several adjournments were given. THEREfore, on the basis of the available materials, the appeal has to be disposed of. The trial Court passed judgment and decree on 7.4.1984. The appeal is filed in the year 1987. The appeal is disposed of on 30.11.1993. The appellate Court has held that during the pendency of the appeal, it was represented by the second respondent that the suit was compromised between the parties and that there is a written agreement to evidence the same. It was contended by the plaintiff that his signature was obtained in the compromise memo by threat and coercion. It is thus, seen that the compromise is allowed to have been entered into long after the date of the suit i.e., four years after filing of the appeal. It is also seen that the plaintiff did not accept the truth and validity of the compromise. It is not seen from the judgment that any application is filed underO.23, Rule 3, C.P.C. to record the compromise. In the above circumstances, I fail to understand as to how the appellate Court is empowered to set aside the judgment and decree on mere representation of the parties that the matter was compromised subsequent to the date of the appeal. It is significant to note that the appellate Court has not only remanded the suit to the trial Court to conduct enquiry regarding the truth of compromise, but also to give a finding on other issues. The procedure adopted by the appellate Court is not in accordance withO.41, Rules 25 orO.23, Rule 3, C.P.C.