SANT RAM Vs. GOVERDHAN

JUDGEMENT

(1.) The instant regular second appeal has been maintained by the appellants, who were plaintiffs before the learned Court below (hereinafter to be called as "the plaintiffs"), laying challenge to the judgment and decree, dtd. 15/9/2018, passed by learned Additional District Judge, Mandi, District Mandi, H.P., camp at Karsog, in Civil Appeal No. 39 of 2017, whereby the judgment and decree, dtd. 22/5/2017, passed by learned Civil Judge, Karsog, District Mandi, H.P., in Civil Suit No. 69 of 2012, was affirmed, wherein suit of the plaintiffs was dismissed.

(2.) Briefly the facts, which are necessary for determination and adjudication of the present appeal, are that on 23/12/2003, the plaintiffs and defendant, Janku (since deceased) have executed a written compromise qua "Taksim Khangi" to the effect that defendant is first party to the composition deed, who had filed an application for partition of the joint land against the plaintiffs and others situated in muhal Banthal, Tehsil Karsog, District Mandi, H.P., before AC 1st Grade, Karsog, District Mandi, H.P., qua the suit land and some other land, which application was decided in favour of the defendant. The share of the defendants, measuring 00-17-06 bighas as contained in Khasra Nos. 82, 266 and 267, the suit land, which is in possession of the plaintiffs, and has fallen in the share of the defendant, being excess share, in the possession of the plaintiffs, shall remain with the plaintiffs, the 2nd party in the compromise as before. They shall continue to remain in possession of the same and appropriate the usufructs of the same. Deceased defendant and his LRs are bound by the compromise. In case any party to the compromise takes recourse to the partition, either khangi or through legal process, in that eventuality the aforesaid referred share which is in their possession excess to their share would be considered as second party's individual share alongwith possession and ownership and appeal which Het Ram and Sant Ram (plaintiffs) second party has filed against the order of AC 1st Grade against the first party before the Collector, Karsog has been withdrawn by them. Both the parties shall be bound by the compromise. They shall not file application for partition qua the suit land or appeal against the same and the compromise would be considered as a last decree.

(3.) By filing written statement, claim of the plaintiffs was resisted and contested by the defendant and preliminary objections qua maintainability, limitation, no enforceable cause of action, estoppel, non-joinder and mis-joinder of necessary parties were taken. On merits, it has been admitted that defendant has filed the partition case before learned AC 1st Grade, Karsog, which is pending adjudication. It is averred that defendant came to know about the compromise and agreement when a legal notice, dtd. 26/5/2011 was served upon him by the plaintiffs through their counsel and the same was replied by his counsel. It is further averred that defendant never agreed to sell the suit land to the plaintiffs and never delivered possession of the suit land to them and no consideration amount was received by the defendant from the plaintiffs. Lastly, a prayer for dismissal of the suit was made.