GOPI RAM Vs. SUMANTRA DEVI

JUDGEMENT

(1.) This is an unfortunate dispute between the brothers Lal Chand (now deceased) filed the su it against his three brothers for partition of the suit property alleging that it was jointly purchased by them vide sale deed dated 1st of December, 1943. The suit was resisted on the ground that there was already a private partition between the parties in January, 1950 and since then all the parties are in there respective possession. However, the Trial Court dismissed the plaintiff's suit vide its order dated 28th January, 1976. In appeal filed by the plaintiff Lal Chand the parties entered into compromise. Jai Chand son of Lal Chand appellant as well as their counsel and Niadar Mal defendant and counsel for the other defendants made their statements, the judgment and decree passed by the Trial Court was set aside and the appeal was accepted. A preliminary decree was passed for possession by partition of the suit property accordingly, vide order dated 14th April, 1978. Dissatisfied with the same Gopi Ram and others sons of Giasi Ram defendant filed the present appeal. Gopi Ram and Tripur Chand appellants also died during the pendency of this appeal and their legal representatives were brought on the record. At the time of motion hearing it was contended that Niadar Mal defendant never signed the compromise and moreover the compromise deed had to be in writing and signed by the parties. In view of that contention the appeal was admitted.

(2.) The learned counsel for the appellants contended that since the compromise was not in accordance with the provisions of Order 23 Rule 3 Code of Civil Procedure, the decree passed there on by the learned appellate Court was liable to be set aside. According to the learned counsel, even the counsel for the defendant had no authority to enter into compromise between the parties. In support of his contention he referred to Dalip Singh v. Raj Mal, 1981 PunLJ 298 and Smt. Raksha Rani v. Ram Lal, 1987 AIR(P&H) 60. On the other hand, the learned counsel for the plaintiff-respondent submitted that no appeal was maintainable against the decree passed on compromise. Moreover, if there was no valid and legal compromise between the parties, the only course open to the defendants was to approach the lower appellate Court where the compromise was entered into between the parties and that this Court could not go in its validity and legality. It was also contended that the compromise need not be in writing and signed by the parties as contended on behalf of the appellants because it was a compromise where the defendants satisfied the plaintiffs in respect of the whole of the subject matter of the suit. In support of this contention he referred to a Division Bench judgment of this Court Shri Manohar Lal and another v. Surjan Singh, 1983 PunLJ 402.

(3.) The main controversy to be decided in this appeal is as to whether the compromise entered into between the parties before the lower appellate Court was lawful compromise or not and was in accordance with the provisions of Order 23 Rule 3 of the Code of Civil Procedure. The said rule reads as under :-