ABDUL SATTAR Vs. ABDUL HAKIM

JUDGEMENT

(1.) In appeal, which was pending in the court of the Additional Commissioner, there was also a cross-objection filed by other parties. The appeal had arisen out of a partition suit filed by Abdul Sattar. The trial court had held that the plaintiff and defendants 1,3 and 5 were co-tenants of the disputed plots.

(2.) The appeal of the plaintiff, Addul Sattar, was dismissed on 15.7.1980 because it was not pressed. Against that order, the respondent filed an application for setting aside that order, but that application was dismissed. On 6.12.1980, the respondent gave another application, praying that his cross-objection had not been decided and that it should be heard on merit. Several dates were given for hearing and on 22.4.1981 a compromise, it was held that Abdul Hakim, respondent no. 1, was the sole tenure-holder of the land in suit and that the plaintiff or other defendants had no right of title over the disputed land. One, Shri Ram Kumar Verma, Advocate, signed the compromise on behalf of the plaintiff and defendants. Abdul Razzak, Abdul Rahman, Mohammad Ibrahim and Smt. Hamiddunissa. This compromise has been challenged on many grounds and one of them is that Smt. Hamiddunnissa had not entered into any compromise at all and, therefore, the compromise deed is illegal. Smt. Hamiddunissa had not given any authority to Shri R.K. Varma, Advocate. The Vakalatnama was executed by one Abdul Hai, who claims to be a Mukhtar-e-am of Smt. Hamidduaisa. No Mukhtarnama was executed by Smt. Hamiddunisa in favour of Addul Hai and hence Sri R.K. Verma, Advocate had no authority to enter into any compromise on behalf of Smt. Hamiddunissa. In AIR 1978 SC 506, it was held that where all the defendant-respondents were not parties to compromise arrived at in partition suit and where the court disposed of the appeal in terms of the compromise only the effect of it was that the appeal was neither dismissed nor allowed ex-parte against non-appearing defendant-respondent and that the proceedings for preparation of final decree against such defendant-respondents was invalid and no final decree could be made against them.

(3.) It has been argued by the learned counsel for the respondent that Smt. Hamiddunnissa has not come forward to challenge the compromise deed or the decree passed on that compromise deed and so the other parties have no right to challenge it. I do not agree with this view. If the compromise was ab initio unlawful because of the fact that one of the co-sharers had not entered into the compromise, it cannot be given effect to, notwithstanding the fact that Smt. Hammidunnissa has not challanged. Even if Smt. Hamiddunissa does not challenge the compromise deed and the court comes to a finding that she had not entered into any compromise then it is the duty of the court to ignore such compromise altogether. There may be several factors for the non-appearance of Smt. Hamiddunissa. We are not in a position to know about her age, about her mental condition and other details regarding her presence in the village or even in the country. It may also be possible that she may have been kept in dark about the compromise deed and some person, most probably Abdul Hai, had kept her in dark. These are just speculations and conjectures and no definite opinion can be given in the absence of Smt. Hamiddunnissa. However, this much is certain that she had not executed any Mukhtarnama in favour of Abdul Hai and therefore, Abdul Hai had no power to engage any counsel on behalf of Smt. Hamiddunnissa and when Abdul Hai engaged Sri R.K. Verma, Advocate, as counsel of Smt. Hamiudunnissa, the vakalatnama was invalid an no power of attorney was given in favour of Shri R.K. Verma advocate. The inevitable inference is that Shri R.K. Verma had no power to enter into compromise on behalf of Smt. Hamiddunnissa. The obvious conclusion is that Smt. Hamiddunnissa did not enter into a compromise at all. If she did not enter into a compromise the compromise itself was void ab intio. The argument that because Smt. Hamiddunnissa has not come forward to challenge the compromise deed or the decree passed on the being of that compromise deed and, therefore, other co-tenure-holders have no power to challenge the compromise deed, is based on the assumption that the court is nothing but a passive onlooker to the transaction of the parties before it. This assumption is wholly incorrect. When the court comes to a conclusion that some one has not entered into a compromise deed and that some unauthorised person has intervened on that person's behalf and has entered into a compromise on behalf of that person, it is the duty of the court to be on guard and to refuse to accept such a compromise or such a transaction.