DES RAJ Vs. WARYAM SINGH

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant challenging the concurrent findings of the two Courts below in a suit instituted for declaration and permanent prohibitory injunction by the respondent/plaintiff on the allegation in the plaint that a compromise had been duly arrived at between the parties and had been accepted by them. When on the basis of the compromise the plaintiff took the papers for attestation to the Assistant Collector Ist Grade, it was found that there was an error wherein the directions and the dimensions of the suit land had been intermingled. I note at this juncture that prior to the institution of the present suit, application under Section 151, 152 of the Code of Civil Procedure (hereinafter referred to as 'CPC') was instituted by the plaintiff praying for amendment of the decree on the ground that there has been a clerical error which application was dismissed by the trial Court on 29th October, 2004 holding the same being not maintainable as it did not fall within the ambit of the jurisdiction of the Court under Section 152 CPC. Aggrieved by that order, the plaintiff preferred petition under Section 227 of the Constitution of India in this Court being CMPMO No. 2/2005, which was withdrawn. Adverting to the suit out of which the present appeal arises, the learned trial Court on the evidence on record holds that no suit is maintainable. Aggrieved, the plaintiff preferred an appeal which has been allowed by the learned appellate Court.

(2.) THE defendant now approaches this Court in second appeal challenging the legality of the judgment on a number of grounds. Five substantial questions of law have been framed for consideration of this Court. The record of the Courts below was called for. What has been urged before me by learned counsel appearing for the appellant is that the suit was not maintainable. The compromise having attained finality, there is no illegality proved on record. The compromise having been accepted, no action/suit is maintainable. Learned counsel for the appellant relied upon the decision of the Supreme Court in Banwari Lal v. Smt. Chando Devi (through L.R.) and another, : AIR 1993 SC 1139, holding: -

(3.) LEARNED counsel also urges that this decision has been reiterated in Pushpa Devi Bhagat (Dead) through LR. Sadhna Rai (Smt.) vs. Rajinder Singh & Others, : (2006) 5 SCC 566, holding: -