BILLU SINGH Vs. GURCHARAN SINGH

JUDGEMENT

(1.) To appreciate the dispute which requires to be resolved in the present appeal, it is necessary to have reference to some of the facts.

(2.) Wazir Singh had three sons, Kaka Singh, Teja Singh and Ishar Singh. Plaintiff respondnet Nos. 1 and 2 are the sons of Kaka Singh from his wife Bachan Kaur, while Billu Singh defendant-appellant is the son of Teja Singh. Wazir singh owned 280 Kanals 12 Marlas of land. The appellant filed a suit against Wazir Singh and secured a consent decree to the effect that the former is the owner of the entire land of Wazir Singh. After the death of Wazir Singh, the plaintiff-respondents filed a suit for possession of 1/3rd share, i.e. 93 Kanals, 11 Marlas, out of the land measuring 280 Kanals 12 Marlas left by the deceased. They impugned the decree secured by the appellant in his favour, inter alia, on the ground that the land in suit was ancestral, joint Hindu family coparcenary property of the respondent and the appellant, and that the same could not be alienated and the alleged consent was without legal necessity and consideration. The suit was partly decreed in favour of the respondents of the extent that they were entitled to possession of 31 Kanals 4 Marlas of land. Being dissatisfied from the said decree, the respondents as also the appellant preferred appeals which came up for arguments before the learned Additional District Judge Bhatinda, on 4th March, 1986. On behalf of the respondents, the claim in appeal was that they were entitled to full 1/3rd share in the estate of Wazir Singh to the extent of 93 Kanals 11 Marlas. On the other hand the appellant challenged the decree passed by the trial Court in favour of the respondent to the extent of 31 Kanals 4 Marlas. On the date of hearing, the counsel for the appellant made a statement that the matter had been amicably settled between the parties. The learned counsel for the respondents made a statement agreeing to what had been stated by the counsel for the appellant. Being thus satisfied that the matter had been amicably settled between the parties, the learned Additional District Judge passed the following order :-

(3.) In the present appeal from the aforesaid judgment and decree of the learned Additional District Judge, the learned counsel for the appellants has contended that the manner isnwhich the compromise has been recorded by the Court below is not in accordance with law. He relies on the provisions of Order 23, rule 3, Code of Civil Procedure, and seeks support from Dalip Singh and another V. Raj Mall and others, 1981 PunLJ 298 and contends that the mandatory provisions of rule 3 ibid required that when a Court is satisfied that a suit pending before it has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall pass a decree in accordance therewith. In the present case, no such written agreement or compromise deed signed by the parties was filed in the Court at the time of passing of the decree under appeal. The words "in writing and signed by the parties" as introduced in rule 3 ibid by the Amending Act of 1976 are mandatory in character and non-compliance therewith renders the decree based on the alleged compromise or agreement unsustainable.