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JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Rehti -Appellant
Versus
Abdul Gani -Resopndent
C. Rev. No. 15/2009
Decided On : 13-02-2012
Section 151 CPC - Challenge to Decree - AIR 1993 SC 1139 - The court discussed the challenge to a decree based on a compromise, the bar to suit under Order 23 Rule 3-A CPC, and the remedy available for challenging a decree. The court referred to the judgment in Banwari Lal v. Smt. Chando Devi (AIR 1993 SC 1139) and held that a party challenging a compromise can file a petition under proviso to R. 3 of O. 23, or an appeal under S. 96(1) of the Code, in which he can question the validity of the compromise in view of R.I A of O.43 of the Code.
Fact of the Case:
The case involved a dispute over a compromise deed and a subsequent suit for cancellation of the consent decree. The defendant alleged that the compromise was based on fraud and sought to challenge the decree.
Finding of the Court:
The court found that the decree was open to challenge based on the fraudulent compromise and held that the trial court had not appreciated the position of law correctly. The Appellate Court set aside the trial court's judgment and remanded the case back to the trial court for further consideration.
Issues: The issues included possession of the suit land, validity of the compromise decree, maintainability of the suit, and the applicability of the law of estoppel.
Ratio Decidendi: The court's decision was influenced by the interpretation of the bar to suit under Order 23 Rule 3-A CPC and the remedy available for challenging a decree based on a compromise, as discussed in the judgment in Banwari Lal v. Smt. Chando Devi (AIR 1993 SC 1139).
Final Decision: The court set aside the order impugned and directed the trial court to decide the application on merits based on the evidence already led in the suit.
2. Facts and circumstances which have given rise to the impugned order are precisely required to be noticed as same shall be advantageous for proper appreciation of the controversy:
(I) Suit titled Abdul Gani v. Ali Lone (file No. 146), on the basis of compromise deed, has been Decided on 05.05.1992 by the trial court. Ali Lone (defendant therein) was issueless whereas Abdul Gani (plaintiff therein) is his sister's son. In terms of the compromise defendant Ali Lone is shown to have gifted away the suit land in favour of the plaintiff Abdul Gani.
(II) Ali Lone filed a suit titled Ali Lone v. Abdul Gani Lone for cancellation of the consent decree wherein it is projected that he is in possession of the suit land covered by khewat Nos.124 and 126 along with one storeyed tin roofed residential house and one granary (kothar). Abdul Gani has obtained a decree on the basis of a compromise which is based on fraud because he was interested in executing a will deed in favour of Abdul Gani, on whose behest he was taken to an Advocate and was asked to sign the will deed but the paper on which his sign was taken was blank, he was under the impression that will deed will be prepared. He in fact wanted Abdul Gani to be the owner of the suit land after his life time but he has been cheated as his signature has been misused. It is also projected that Ali Lone had agreed for execution of a will deed so as to retain the power of revoking the same during his life time on need basis.
(III) In opposition Abdul Gani filed the written statement wherein he contended that the suit is barred by Order 23 Rule 3-A CPC and has also claimed to be in possession of the suit property.
(IV) Finally on the basis of respective pleadings, trial court has framed the following issues:
1) Whether the plaintiff is the khewatdar at Ratnipora and is in possession of the land falling under khewat No.124 & 126 as a khewatdar ?(OPP)
2) Whether decree impugned passed by Id. Munsiff Pulwama on 5.5.1992 on the basis of compromise deed is ineffective on the rights of the plaintiff and is liable to be cancelled for being based on fraud?(OPP)
3) Whether the suit aforesaid is barred by order 23 R 3-A CPC?(OPD)
4) Whether the suit is not maintainable in the present form for want of relief for possession?(OPD)
5) Whether the suit is time barred?(OPD)
6) Whether the suit of the plaintiff is hit by law of estoppel?(OPP)
7) Relief ?(OP Parties)
(V) Issue No.3 was treated as a preliminary issue and was fixed for consideration but in the meantime, on 19.3.1998, Ali Lone filed an application praying therein that the suit may be treated as an application under Section 151 CPC. Objections were filed on 10.5.2000. In view of this position, at the instance of counsel for the parties, hearing on the preliminary issue No. 3 was deferred and the parties were permitted to led evidence, as such, both the parties led evidence.
(VI) On conclusion of the evidence, counsel for the parties were heard and issue-wise findings have been recorded.
Issue No. 1. Whether the plaintiff is the khewatdar at Ratnipora and is in possession of the land falling under khewat No. 124 & 126 as a khewatdar?(OPP)
It is recorded that the defendant Abdul Gani has been paying the usufruct of the suit land to the plaintiff Ali Lone which means that the defendant was in possession of 18 kanals of land and rest of the land under khewat No. 124 and 126 situated at Ratnipora is in possession of plaintiff Ali Lone, so the issue was partly decided in favour of the plaintiff and partly in favour of the defendant.
Issue No.2. Whether decree impugned passed by Id. Munsiff Pulwama on 5.5.1992 on the basis of compromise deed is ineffective on the rights of the plaintiff and is liable to be cancelled for being based on fraud?(OPP)
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