SURAJ BHAN Vs. JOGI RAM

JUDGEMENT

(1.) THIS appeal has been filed against the judgment and decree of the Senior subordinate Judge, Rohtak dated August 9, 1971.

(2.) BRIEFLY, the facts of this case are that the plaintiffs claimed themselves to be the owners of the property in dispute along with the defendants. They further stated that the defendants started certain construction on the property in dispute of which they were not entitled. They have claimed permanent injunction restraining the defendants from raising the construction on the property in dispute. The defendants controverted the pleas of the plaintiffs. While the suit was pending, mathura Dass plaintiff, Ram Sarup defendant and the counsel for the parties made a statement that they had agreed that the Court might inspect the spot and give any decision about the case and the parties will be bound by the said decision of the Court as referee. The trial Court in view of the statement inspected the spot in the presence of the counsel for the parties on July 9, 1971, at 5. 00 P. M. The trial court after inspection of the spot and hearing the counsel for the parties held that he did not agree with plaintiffs contention. That the place in dispute which is in the form of kacha chabutra belonged to both the parties. Consequently, he dismissed the suit of the plaintiffs. Jogi Ram and Gokal plaintiffs filed an appeal against the judgment and decree of the trial Court to the Senior Subordinate Judge who after hearing the counsel for the parties held that the appointment of the referee was defective as the power-of-attorney did not contain a clause which authorizes the counsel for the plaintiffs to refer the matter to the referee on behalf of the plaintiffs. Further, he held that the impugned decree could not be said to have been passed with the consent of the parties. It was also held that, in the circumstances, the appeal was maintainable. He consequently remanded the case to the trial Court for disposal in accordance with law. The defendants have come up in appeal to this Court.

(3.) THE first contention of the learned counsel for the appellants is that the counsel for the respondents had been given specific powers in the power-of-attorney to compromise and the reference to a referee tantamount to a compromise. He has referred to various clauses of power-of-attorney. The translation of Clause 2, to which a reference has been made, is as follows:--