Heard Mr. Gangapurwala. Advocate for the appellant and Mr. Gore, Advocate for the sole respondent.

2. In view of the facts and circumstances, the appeal is admitted and taken up for final hearing by consent of the parties.

3. The appellant has preferred this appeal against the order passed by Adhoc District Judge, Aurangabad, dated 13.8.2007, dismissing the present appellant's appeal and confirming the order passed by Civil Judge, Junior Division, Paithan, whereby document at Exhibit 18 was stated as a compromise and decree was directed to be passed as per Exhibit 18 and map filed along with Exhibit 25, whereby defendant was also directed to hand over possession of 51 Ares land to the plaintiff as shown by D.I.L.R..

4. As can be seen from the record, Survey No.6, Hissa No.2 of Village-Kausa, Taluka-Paithan, District-Aurangabad is a subject matter involved in the suit. There was dispute between the parties alleging that the defendant had encroached over the suit property of the plaintiff to certain extent and, therefore, the suit came to be filed for declaration and possession of encroached property.

5. In the course of the suit, parties agreed to get appointed D.I.L.R. as a Court Commissioner and it is the case of the respondent that the said document of agreement Exhibit 18, which was filed in Regular Civil Suit No.185/1999 before the trial Court, was a compromise between the parties within the meaning of Order 23, Rule 3 of the Civil Procedure Code. Consequently, D.I.L.R. was appointed and his report was received. Dispute was raised on behalf of the present appellant/ defendant on receipt of the report on the ground that D.I.L.R. had not drawn the map of the property as per the procedure and, therefore, the lower Court was requested that the D.I.L.R. should be called as a witness so as to get the opportunity to cross-examine him to demonstrate the illegalities committed by him while measuring the properties and drawing the map. This plea was objected to by the present respondent on the ground that once the compromise was effected between the parties, the present appellant/defendant was bound by the same and, therefore, it was incumbent upon the lower Court to pass the decree on the basis of compromise and the map filed with Exhibit 25 in the lower Court.

Learned trial Judge, after hearing both the parties, came to the conclusion that the document Exhibit 18 could be treated as compromise arrived at between the parties within the meaning of Order 23, Rule 3 of the Civil Procedure Code and proceeded to pass a decree on the basis of document of Exhibit 18 as well as map drawn by the Court

Commissioner, D.I.L.R ..

6. Being aggrieved by the said order, appeal was preferred. The lower Appellate Court, after hearing both the parties, concurred with the findings recorded by the trial Court and held that document Exhibit 18 was compromise within the meaning of relevant provisions and, therefore, appeal came to be dismissed. Hence, the present Second Appeal.

7. Now, in order to understand the nature of the dispute between the parties, it would be necessary to look into the document Exhibit 18 in order to appreciate the entire state of affairs in proper perspective. Exhibit 18 is in vernacular. In para 1 thereof, it is agreed between the parties that in both the suits, D.I.L.R. should be appointed as Court Commissioner and he should be asked to measure Survey Nos.5 and 6 in presence of the plaintiff and defendant and accordingly the boundaries should be demarcated and map should be drawn and thereafter his report should be filed in the Court.

Para 2 thereof stated that after completion of the Court Commissioner's work, if it is found that either of the party had made encroachment on the land of either side, the possessions of encroached properties would be handed over and Court would be assured that the concerned encroacher party would not in future make encroachment.

Para 3 of the said document further stipulated that ther