JUDGMENT -V.H. BHAIRAVIA, J.:-This appeal is brought by the appellants-original plaintiffs against the Judgment and Decree passed by the Extra Assistant Judge, Thane in Civil Appeal No. 310 of 1975, confirming the Judgement and Decree passed by the Civil Judge, Junior Division, Kalyan dated 29th June, 1975, by his judgement and order dated 28th October, 1980.

2. Short facts of the case are that, the appellants-plaintiffs had filed a suit for possession of the property bearing Survey No. 88, Hissa No. 2, admeasuring 13¼ gunthas, situated within the local limits of Kalyan Municipal Council. It is the case of the plaintiffs that the suit property being agricultural land was given to the defendant No. 1 for cultivation. It is further alleged that without the permission of the plaintiffs, defendant No. 1 parted some portion of the suit property with defendant No. 2. Thus, the defendant No. 2 occupied the suit property as a tresspasser. It is to be noted here that though the suit property was originally agricultural land, situated within the local limits of Kalyan Municipal Council, did not remain agricultural land but converted into N.A. and it reveals from the record that respondent No. 2 has built up the house on this land.

3. It is the case of the appellants-plaintiffs in this appeal before the trial Court that pending the suit, the respondent-defendant No. 1 and plaintiff entered into compromise and filed a compromised pursis before the trial Court which is on record as Exh. 81. It is submitted that by this pursis, the defendant No. 1 has cancelled the alleged agreement of sale between the plaintiffs and the defendant i.e. Exh. 100 and the earnest money which was paid to defendant No. 1 by the plaintiffs returned to the plaintiffs, by defendant No. 1. Thus, compromised terms was recorded by the learned Trial Judge and the endorsement to that effect is at Exh. 81. Despite that, the learned Trial Judge proceeded with the suit, recorded the evidence and dismissed the suit of the plaintiffs, by his judgement and order dated 29th August, 1975. Appeal against the said judgement and order being Civil Appeal No. 310 of 1975 in the Court of Extra Assistant Judge, Thane came to be dismissed by order dated 28th October, 1980. Hence, this appeal.

4. The learned Counsel for the appellants Mr. Y.V. Divekar has stated that there was a bearing in important question of law before this Court that under order XXIII, Rule 3 of C.P.C. the Court recorded the compromise terms required to pass the judicial order on the basis of compromise pursis and that is binding to the parties. It has been contended by Mr. Divekar that the learned Trial Judge instead of drawing decree on the basis of compromised pursis Exh. 81 proceeded with the suit and decided the suit on merits. According to him, this is an illegal order. The appellate Court has also committed the same error in confirming the judgement and order of the learned Trial Judge. Mr. Divekar has emphatically argued this point and in support of his arguments, he relied upon the provision under Order XXIII, Rule 3 of the Civil Procedure Code.

Order XXIII, Rule 3 reads as under :

"3. Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties), or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit):

(Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question, but no adjournment shall be granted for the purpose of deciding the questio

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