MAHAMMAD MIA PANDIT Vs. OSMAN ALI

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and arises out of a suit for possession. There are seven plaintiffs. Of them plaintiffs 1 and 2 are adult males, Nos. 3, 4 and 7 are ladies and Nos. 5 and 6 are minors. The minors were represented in the Courts below by plaintiff 1, who also represents them in this appeal. At the instance of plaintiffs there was a local, investigation by a pleader Commissioner who submitted a report in their favour. The defendants filed an objection to the said report. At the date of the hearing of the suit, which was 15 August 1930, defendant 2 filed an application stating that the parties had agreed to the lands being measured by one Shama Charan and that if it was found by him that the lands in suit were in possession of the defendants, the plaintiffs would get a decree, otherwise the suit would stand dismissed, but the plaintiffs would be entitled to get Rs. 50 from the defendants. The said defendant further alleged that Shama Charan had measured the lands and had found that no part of the lands in suit was in the possession of the defendants. He accordingly prayed for the said adjustment to be recorded under the provisions of Order 23, Rule 3, Civil P.C. The plaintiffs denied the said agreement, but the learned Munsif after taking evidence found that the agreement was alleged by defendant 2 and dismissed the suit on the findings of Shama Charan. The attention of the Court does not seem to have been drawn to the fact that some of the plaintiffs were minors. Admittedly no leave of the Court was taken under Rule 7, Order 32 of the Code. On appeal from the decree made by the trial Court, the point urged by the plaintiffs, as the appellate Court puts it, was whether the suit was adjusted between the parties out of Court and whether the compromise should be recorded.

(2.) The Court of appeal below however only applied its mind to the question of the factum of the agreement but did not consider whether the alleged compromise was lawful or could be recorded under the provisions of Order 23, Rule 3 of the Code. It did not even advert to the fact that there were minors whose interest it was the duty of the Court to safeguard and protect. The appellate Court agreed with the first Court and remarked that the Munsif was justified in recording the compromise under Order 23, Rule 3, Civil P.C.

(3.) The appeal was accordingly dismissed; hence the second appeal by the plaintiff s. A preliminary objection has been taken to the competency of the appeal. Mr. Dass who appears on behalf of the respondents urges firstly that the appeal being really against the order recording the compromise under Order 23, Rule 3, a second appeal is barred under the provisions of Section 104(2) of the Code. Secondly he urges that even if the appeal be regarded as an appeal from the decree, after the findings of the Court of appeal below, the decree must be taken to be a decree passed with consent of parties and Section 96(3) of the Code, bars the appeal. In the course of the argument I indicated that possibly the preliminary objection was a sound one. On that the advocate for the appellant asked me to interfere in revision in case I held that no appeal lay. As I considered that the case was a fit one for interference under the revisional jurisdiction I heard the learned advocates at length who presented their cases from all aspects and I must acknowledge the great assistance I have derived from them in the case which has engaged my anxious consideration. After having heard the learned advocates I have come to the conclusion, though not without hesitation, that no appeal lies. But I am at the same time quite convinced that I have power to interfere in revision and should so interfere in this case.