Representative Suit - Compromise - No agreement or compromise to be entered in a representative suit without leave of Court.

M.M.Kumar, J.

1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of fact recorded by both the Courts below holding that the suit filed by them was barred by the principles of res-judicata as the same property was subject matter of dispute in the previous suit which was dismissed by the then Addl. Senior Sub Judge, Faridabad vide judgment and decree dated 21.8.1986. The appeal was also dismissed by the learned lower appellate Court on 13.12.1986 and R.S.A. No. 1654 of 1987 against the aforementioned judgments and decree was also dismissed by this Court on 29.9.1987. In the earlier suit, it has been categorically held that the suit property was not a Muslim burial ground. It is further pertinent to mention that the earlier suit was filed by Irshad etc. in their representative capacity and various documents have been placed on record to prove the afore-mentioned facts which are Exs.D.1, D.3 and D.4. The suit has been filed on behalf of the entire Muslim community of village Sarai Khawaja. The Courts below have further placed reliance on a copy of the judgment Ex.D.5 showing that another suit was filed by the Punjab Wakf Board on the Muslim community of village Sarai Khawaja.

2. Brief facts of the case which have led to the filing of the instant appeal are that Shri KaIuta (since deceased) and others instituted civil suit No. RBT 244 of 1987 on 8.1.1987/5.4.1996 seeking permanent injunction against the defendant-respondents. It was claimed that they were Muslims and were permanent residents of village Sarai Khawaja, Tehsil Ballabgarh and there is an old grave yard in the afore-mentioned village as per jamabandi for the year 1954-55. It was further alleged that the suit land was recorded in the ownership of Ghisa son of Ram Dutt but in fact was in actual possession of the Muslim community of village Sarai Khawaja having been dedicated by the owner for its use as grave yard since times immemorial. In view of the long, continuous and uninterrupted user, dedication in favour of Muslim community was to be presumed and the suit land became the lost grant of the recorded proprietors. A declaration was sought that the proprietors were left with no right, title or interest in the afore-mentioned land. The afore-mentioned piece of land was the only place where the members of the Muslim community could bury their dead and there were graves of their deceased members. The heirs of Ghisa claiming themselves to be the owners are alleged to have executed some conveyance deed on 10.10.1969 in favour of defendant-respondents. A declaration in respect of the afore-mentioned sale deed has been sought that the same did not confer any right, title or interest on the defendant-respondents as the possession of the suit land continued uninterruptedly with the Muslim community. The defendant-respondents on the basis of the conveyance deed have continuously changed the nature of the land and have converted into plots for the purposes of development of residential colony. Eventually, a settlement is alleged to have taken place on 7.7.1995 between the parties. The defendant-respondent had agreed to keep intact an area of 11 kanals out of total land mentioned in para 1 of the plaint solely for the purposes of Kabristan which is depicted in the site plan in red colour. It is claimed that the afore-mentioned agreement is binding on both the parties but the defendant-respondent in breach of the obligation tried to demolish the graves even from the reserved area of 11 kanals. The defendant-respondent despite request of The plaintiff-appellants have been continuously interfering in the afore-mentioned land which led to the filing of the suit.

3. The defendant-respondents resisted the suit on the ground that the same is barred by the principle of res-judicata as the earlier civil suit No. 44 of 6.4.1983 was dismissed by the Civil Judge, Faridabad on 21.8.1986. In th