MAUHAR SINGH KAMARIA Vs. GEETA KAMARIA

JUDGEMENT

(1.) AGGRIEVED by order and judgment dated 28.02.2013 passed by the Court of First Additional District Judge, Datia, in Civil Suit No. 13A/10 (Smt. Geeta and Others Vs. Mauhar Singh and Others), this First Appeal has been filed by the appellants under Section 96 read with Order XLIII Rule 1(m) of Code of Civil Procedure.

(2.) THE facts just necessary for decision of this appeal are that, a Civil Suit was filed by respondents No. 1 to 4 against the petitioners and three other persons for declaration and permanent injunction regarding the suit land situated at village Parasari, Tehsil and District Datia. In this Civil Suit, the parties said to have entered into a compromise. The compromise, statement of plaintiff Brijkumar (respondent No. 3), Mauhar Singh, defendant No. 1 (appellant No. 1), Sopat Singh, defendant No. 2 (appellant No. 2), were recorded on 17.03.2011. Subsequently, before passing an order on the compromise, an application under Section 151 of C.P.C. was filed on 25.03.2011 by the defendants No. 1 and 2. It would not be out of context to mention here that defendant No. 17/State a formal party and remained exparte in the original case. The application under Section 151 C.P.C. was decided on 11.07.2011 after recording the statements of Sopat Singh, Santosh Singh, Giran Singh, Rajesh, Bantu and Brij Kumar and the same was disallowed. In this application, the appellant/defendants prayed that during the course of compromise, the plaintiffs said to the petitioners that, let the defendants say in the Court that they have received the amount, they will pay the compromise amount 3,00,000/ - rupees when they go to home. At the time of recording the compromise statement, the defendant No. 1, Mauhar Singh and defendant No. 2 Sopart Singh bonafidely stated that they have received the amount of 3,00,000/ - rupees. But the plaintiffs did not pay discount, therefore, the application was filed before the learned Trial Court under Section 151 of C.P.C. to dismiss the compromise dated 17.03.2011.

(3.) THE appellants have challenged the impugned judgment and decree of compromise on the ground that it is obtained by fraud and is contrary to law. The application under Section 151 C.P.C. was rejected without any enquiry. The findings recorded has been decided erroneously and the compromise without consideration is not a valid compromise. Respondents No. 1 to 4 -plaintiffs who were out of possession of the suit property. Without a valid partition and registration, a compromise decree is not sustainable in the eye of law. Therefore, the decree obtained by playing fraud is nullity and is not sustainable. It is prayed by appellants that the impugned judgment and decree dated 28.02.2013 be set -aside.