BALMUKAND Vs. RADHA VALLABH

JUDGEMENT

(1.) THE facts which have given rise to this second appeal against an appellate decree of the learned Commissioner, Kota, may in brief be stated as follows: - Radha Vallabh, the plaintiff respondent No. 1 filed a suit under sec. 188 of the Rajasthan Tenancy Act praying for a permanent injunction against the defendant appellants. It was averred in the plaint that his field No. 1/47 has eversince been irrigated from well No. 1093 which is owned jointly by him and the appellants in equal halves. It was further alleged that recently the defendants appellants forcibly prevented the plaintiff Radha Ballabh from taking water from this well or use the Dhena for irrigating his field and also threatened him of dire consequences if he attempted to do so. THE plaintiff therefore prayed for the issue of a perpetual injunction restraining the appellants from interfering with the rights of the plaintiff. THE suit was contested by the appellants essentially on the ground that the plaintiff had no share in the well which belonged exclusively to the defendants appellants. After the trial court had recorded the evidence of the parties and the case was fixed for hearing the arguments the parties entered into an agreement and a compromise deed was filed in the lower court. THE terms of the compromise were that Radhaballah plaintiff respondant No. shall take water to irrigate his field No. 1147 from well No. 1013 through the Dhena of Heeralal the nephew of the plaintiff and who was also examined as a witness in the case and as agreed upon between them in the past, and to which arrangement Hiralal has also now again given his consent and that the plaintiff shall not be entitled to take water to his field No. 1147 through the Dhena of the defendants without their consent. THE was duly recorded and the case was decided in terms of the compromise. THEreafter both this respondents viz. , Radhaballabh the plaintiff and Heeralal filed an appeal in the lower appellate court with the allegations that as Heeralal was not party in the original suit the trial court had no jurisdiction to record the compromise and that its decision on a deed which was unlawful and not binding on Heeralal. It was also urged that the trial court used undue influence on the respondents and coerced them to compromise the suit to the detriment of their rights. THE learned lower appellate court examined these facts and observed that although in the compromise deed Heeralal had given his consent yet as he was not a party in the suit the said compromise deed was not lawful and should not have been recorded and the decision based on it bad in law. In support of this view the learned lower court relied on AIR 1924 Calcutta 722 and AIR 1960 Cal. 506' In the result decision of the lower court was set aside and the case remanded to it with the direction that it be decided in accordance with law. Against this appellate decision the present appeal has been filed by Balmukand and Laxmichand defendants. THE ground of appeal set forth in the memo of appeal are that the learned lower appellate court committed an illegality in entertaining an appeal against a compromise decree, that the respondent Heeralal being not a party in the suit had no locus standi to prefer an appeal and lastly the compromise essentially took place between Radha Ballabh the respondent and the appellant which did not in any manner affect the state of affairs between Radha Balladh and Heeralal. THE learned counsel for both the parties addressed us at some length. In so far as the first contention of the learned counsel for the appellant is concerned that an appeal was not competent against a decision based on a compromise, we have examined the provisions of Section 96 (3) of C. P. C. and section 223 of the Rajasthan Tenancy Act which read as follows: "section 96 (3) No appeal shall lie from a decree pass d by the court with the consent of the parties" Section 223" An appeal shall lie from an original decree to the Commissioner if such decree is passed by an Asstt. Collector as Sub- Divisional officer. In the instant case the compromise deed was duly recorded by the trial court in terms of O. 23, R. 3 C. P. C. and decided accordingly. This decision was undoubtedly given with the consent of the parties and an appeal was barred under sec. 96 (3) of the Code, if it would have been a case instituted, heard and decided by a Civil Court. THE present suit was instituted and tried under sec. 138 of the Rajasthan Tenancy Act, and an appeal to the Commissioner was competent under Section 223 of the Tenancy Act. We will now examine the other contention viz. , whether the compromise was lawful, both against Radhaballabh and Heera-Lal and whether the trial court was competent to record the same. According to the provisions of Order 23 Rule 3 C. P. C. where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of suit the court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance there with so far as it relates to the suit. THE alleged compromise deed was admittedly filed by the parties, who had appended their signatures in token thereof, it was verified and attested by the Court and recorded as such in their presence. This now brings us to the consideration of the more difficult aspect of the case namely whether the compromise was or was not a lawful one. Chitely in his commenary on C. P. C. at page 3498 observed that the ex-presssion 'lawful' refers to the legality of the terms of the agreement and not to its binding character. THErefore although an agreement or compromise may be lawful within rule 3 of Order XXIII yet it may not be binding on one of the parties on the ground of its having been brought about by coersion, undue influence or fraud. THE word 'lawful' means lawful within the meaning of Contract Act that is to say the rule requires an agreement which is legally enforceable; but it is not necessary that in order to enable a Court to record a compromise the terms, which are to be complied with after decree should be specifically enforceable under the Specific Relief Act. THEse observations are based on a number of decisions of the various High Courts referred to in the foot notes at page 3498 of the Chitleys' commentay of the Civil Procedure Code VI Edition 1957. THE learned author then proceeded to point out certain types of agreements which are unlawful within the meaning of order 23 Rule 5. THEse are agreements which are prohibited by law or opposed to public policy or involve injuries to a third party etc. Reverting to the terms of the compromise deed it only states that Radha Ballabh the plaintiff respondent will get water from the Dhena of Heeralal and will not get any water from the Dhena of Balmukand and Lachmichand without their consent. THE suit as already stated above was for restraining Balmukand and Laxmichand the plaintiff for taking water from the disputed well and its Dhena. THE main relief claimed in the suit was therefore that Radha Ballabh should not be prevented form taking water from the Dhena of the appellants. If, however, in the course of proceedings both the parties agreed that instead of taking water from the Dhena of Bal Mukand and Laxmi Chand the plaintiff should take water from Dhena of Heera Lal who signified his consent by putting his signatures on the compromise deed, there was nothing to prevent the court to record the same and giving a relief in so far as it relates to the suit and with which both the parties were satisfied. We, therefore, hold that the compromise and the agreement was a lawful one, in so far as it related to the suit viz. , injuncting the defendant - appellants from interfering with the right of the plaintiff to take water from the well and Dhena under dispute. THE result of this compromise is quite obvious and the suit of the plaintiff stood dismissed. We have again to examine whether this compromise was lawful in so far as Heeralal is concerned. It is true that it also included matters viz. , the taking of water from the Dhena of Heeralal who was not a party to the suit and which matter did not relate to the suit but was extraneous to it. But such a compromise is not unlawful and cannot be rejected in its authority by a court. THE rule of law is that where a compromise comprises matters unconnected with the suit, the proper course for the court is to recite the compromise as a whole in the form of a schedule to the decree for purposes of reference to restrict the operative part of the decree to these terms of the compromise which relate to the suit. In such a case the decree would be executed only in respect of the matters that relate to the suit. THE authority relied on by the lower appellate court AIR. 1924 Calcutta 722 and AIR 1960 Calcutta 506 can be easily distinguished. In AIR 1924 Calcutta 722 the suit was for partition of a joint estate held by the plaintiff and the defendant including two other persons namely Chuni Bai and her minor son Ram Narayan. A compromise was effected between the parties without impleading the latter two persons as a party in the case. THEir interest and the terms of compromise were inseparable from those of the latter. THE argument was that the compromise which purported to govern the rights and liabilities of those two persons who were not a party to the suit could not be recorded as a lawful compromise within the terms of Order 23 Rule 3 C. P. C. This argument prevailed with the learned Judges and they held accordingly. In the present case, however, no such circumstances exist. Again in AIR 1960 Calcutta page 506 the dispute was in connection with the amount of compentation payable under the Land Acquisition Act by the State of West Bengal, who was not a party to the compromise entered into between the parties. THEir Lordships observed that as the State of West Bengal was not a party in the application for compromise in the Supreme Court nothing in those decrees could revive the liability of the State of West Bengal which was completely extinguished by the judgment of the High Court of Calcutta. In the present proceedings the parties cannot be allowed to back out from the agreement lawfully made and the appellant and respondent Radhaballah must abide by the terms thereof and the operative part of the decision shall remain confirmed to the terms of the compromise only in so far as it relate to the suit and the remaining part of it which concerns Heeralal may be enforced by the plaintiff by means of a separate suit. This being so the decision given by the learned lower court is not maintainable and accordingly it is set aside. As a result of the above discussion the suit for injunction shall stand dismissed. .