MOHAR SINGH Vs. HERMALE SINGH

JUDGEMENT

(1.) THIS appeal is directed against order and decree dated 4. 4. 97 passed by Additional District Judge No. 2, Hanumangarh, whereby the suit preferred by the plaintiff- respondent No. 1 herein, has been decreed in terms of the compromise arrived at between the plaintiff and the defendant Nos. 1 and 2, the respondent Nos. 2 and 3 respectively herein.

(2.) THE brief facts giving rise to this appeal are that the plaintiff Shri Hermale Singh preferred a suit for specific performance of contract against the defendants Smt. Dhan Kaur widow of Shri Kala Singh and Ram Singh, adopted son of Shri Kala Singh, inter alia stating therein that 7 bighas of land situated in Chak 17-GGR, Stone No. 186/272, bearing Khasra Nos. 12, 13 and 18 to 22 and 5 bighas & 15 biswas land, situated in Chak No. 13- GGR were purchased by him from Kala Singh through his Power of Attorney Holder Basant Singh vide agreement dated 28. 7. 84. It is alleged that 7 bighas of land situated in Chak No. 17-GGR was agreed to be sold for a consideration of Rs. 15,000/- per bigha and 5 bighas & 15 biswas of land comprising Chak No. 13-GGR was agreed to be sold for a consideration of Rs. 10,000/- per bigha. It was further averred in the plaint that an amount of Rs. 90,000/- towards the consideration for 7 bighas of land comprising Chak No. 17-GGR and Rs. 10,000/- towards the land comprising Chak No. 13-GGR was paid to the Power of Attorney Holder of Shri Kala Singh in advance. It is stated that before the sale deed could be executed in pursuance of aforesaid agreement to sell, Shri Kala Singh expired on 4. 10. 84, therefore, a suit for specific performance of the contract was filed by the plaintiff Hermale Singh against Smt. Dhan Kaur, widow of Kala Singh and Shri Ram Singh, adopted son of Kala Singh regarding 7 bighas land comprising Chak No. 17-GGR. Regarding 5 bighas and 15 biswas of land comprising Chak 13- GGR, it was stated that the said land belong to Sher Singh s/o Budh Singh and Shri Kala Singh was only in cultivatory possession thereof, therefore, he had no right to transfer the said land. Accordingly, while terminating the agreement to that extent, the suit for specific performance of the contract was preferred by the plaintiff Hermale Singh only with regard to the land comprising Chak No. 17-GGR. During the pendency of the suit, a compromise arrived at between the plaintiff Hermale Singh and the defendant Smt. Dhan Kaur was filed before the learned trial Court. In the meantime, Shri Mohar Singh, the appellant herein, preferred an application for impleading him as party defendant in the suit on the strength of an agreement to sell dated 3. 6. 85, whereby Smt. Dhan Kaur had agreed to sell the said land comprising Chak No. 17 GGR to Mohar Singh, took an advance of Rs. 20,000/- and handed over the possession of the land. Smt. Dhan Kaur expired on 1. 5. 88, therefore, an application under Order 22 Rule 4 of C. P. C. was preferred by one Shri Attar Singh claiming himself to be an adopted son of Smt. Dhan Kaur. THE defendant No. 2 Shri Ram Singh also preferred an application under Order 22 Rule 4 stating therein that the application has been preferred by Shri Attar Singh in collusion with the plaintiff Shri Hermale Singh with an intention to grab the land in question whereas, he is the only surviving legal heir of Smt. Dhan Kaur, therefore, he alone should be permitted to defend the suit. An application under Order 22 Rule 4 was also preferred on behalf of the appellant Mohar Singh. In the meantime, the defendant No. 2 Shri Ram Singh filed the written statement contesting the suit. On 5. 1. 89, the plaintiff preferred an application under Order 22 Rule 6 C. P. C. stating therein that he has not claimed any relief against the defendant No. 2 Shri Ram Singh, therefore, the suit may be decreed in terms of the compromise arrived at in between the plaintiff and Smt. Dhan Kaur dated 21. 11. 87 already placed on record. THE said application preferred by the plaintiff Hermale Singh was rejected by the learned trial Court vide order dated 19. 2. 1991, inter alia on the ground that the issue as to whether Smt. Dhan Kaur was the sole owner of the land in question and was competent to enter into compromise has to be decided on the basis of evidence to be placed on record by the parties. Besides, taking note of the pendency of the application preferred by the appellant Mohar Singh and the fact that the suit is being contested by defendant No. 2 Shri Ram Singh, the learned trial Court arrived at the finding that the application preferred by the plaintiff under Order 22 Rule 6 cannot be entertained and that so far as the passing of the compromise decree under Order 23 Rule 3 of C. P. C. is concerned, the same shall be considered after the due trial. THE application preferred by Shri Mohar Singh for impleading him as party defendant in the suit was not opposed by the plaintiff and accordingly, the same was allowed by the learned trial Court vide order dated 14. 1. 94 and the appellant Mohar Singh was impleaded as party defendant No. 3 in the suit. THE application preferred by Shri Attar Singh and Ram Singh under Order 22 Rule 4 CPC were also not opposed by the plaintiff and the same were allowed vide order dated 11. 2. 94.

(3.) THE learned counsel contended that the counter claim submitted by the appellant was only against the co-defendants and therefore, on that basis the suit cannot be permitted to converted into an interpleader suit. In support of the contention, the learned counsel relied upon a decision of the Hon'ble Supreme Court in the matter of Rohit Singh & Ors. vs. State of Bihar (2007 (1) WLC (SC) 105)