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ALLAHABAD HIGH COURT
Manoj Kumar Gupta, J.
Ram Krishna Vivekanand
Shishu Niketan – Petitioner
versus
Onkarnath and Ors. – Respondent
Matters Under Article 227 No.3147 of 2019
Decided on 3.9.2019
For the Petitioner:Nirvikar Gupta, Tosh Kumar Sharma, Advocates
For the Respondent:Shariq Shamim, Rajneesh Tripathi, Tarun Agrawal and Tarun Varma, Advocates
IMPORTANT POINT
Section 96 (3) of CPC is based on doctrine of estoppel which would equally apply to a consent decree passed in appeal.
Headnote:
Civil Procedure Code, 1908 – Sections 96(3) and 100 read with Order 23 Rules 3 and 3-A – Constitution of India – Article 227 – Second appeal – Maintainability – Alternative remedy – Section 96 (3) is based on doctrine of estoppel which would equally apply to a consent decree passed in appeal – However, for other reasons stated in earlier part of judgement, bar under Section 96 (3) C.P.C. would not come in way of petitioner in filing second appeal – It is judgment of appellate court which would govern rights of parties and not the one passed by trial court – Appellant in an appeal against a decree passed in suit after recording a compromise or refusing to record a compromise is entitled to contest decree on the ground that compromise should, or should not, have been recorded (Order 43 Rule1-A) – Same principle would apply where court records some part of compromise while declines to record remaining part – In such cases, bar contained under Section 96 (3) CPC would not get attracted – These principles would also apply to appeals from appellate decrees in view of Order 42 Rule 1 read with Section 108 CPC – Instant petition dismissed on the ground of availability of alternative remedy of second appeal under CPC itself. (Paras 16, 24, 26 and 27)
Result: Petition dismissed.
JUDGMENT
Manoj Kumar Gupta, J.—An interesting question as to whether second appeal would lie against the impugned order/judgement of the first appellate court or the same is barred by Section 96 (3) of the Code of Civil Procedure (for short ‘Code’ or ‘C.P.C.’) arises for consideration in the instant petition filed before this Court invoking its supervisory jurisdiction under Article 227 of the Constitution. In case, an appeal is maintainable, this Court in view of availability of efficacious remedy under the Code would decline to entertain the instant petition.
2. The backdrop in which the controversy has arisen is as follows:-
Two suits were instituted by the petitioner (hereinafter referred to as ‘the plaintiff’) bearing Original Suit Nos.381 of 1987 and 800 of 1987. In Original Suit No.381 of 1987, the plaintiff prayed for permanent injunction, declaration of its title in respect of the suit property and mandatory injunction against respondents no.1 to 14 (hereinafter referred to as ‘the defendants 1st set). The declaration of title was sought on the ground that the suit property was donated to it by Dwarika Nath Bhargava, Kedar Nath Bhargava and Onkar Nath Bhargava by an unregistered instrument dated 10.3.1969. Since then, the plaintiff had been in possession of the same as its owner without any objection from any one and thus perfected its title by adverse possession. In alternative, the plaintiff also prayed for mandatory injunction directing defendants 1 to 10 as well as defendants 11, 12 and 13 to execute registered gift deed in pursuance of an alleged agreement dated 12.2.1969. In Original Suit No.800 of 1987, the plaintiff took the same stand and prayed for permanent injunction against respondents 12 to 20 (hereinafter referred to as ‘the defendants 2nd set). Both the suits were dismissed by the trial court by judgement dated 14.12.2018. The trial court held that the plaintiff was not able to prove its title to the suit property; that it also failed to prove its possession and thus, also not entitled to declaration as owner on basis of adverse possession. Aggrieved by the judgement of the trial court, the plaintiff filed an appeal under Section 96 CPC. It was registered as Civil Appeal No.213 of 2018. During pendency of the appeal, the plaintiff entered into a compromise with defendants 12/1 and 14 ( Paper No.18 Ka/4). The compromise was signed by the parties/their authorised representatives and their signatures were duly verified by respective counsel for the parties except respondents 1 to 11 and 13, who were discharged from the suit and also the compromise. There is a map annexed with the compromise, according to which, the portion of land shown with letters DEFH was admitted to be in possession of the plaintiff and would continue in its possession; ABHF was recognised as belonging to defendant 12/1 and BCDH as belonging to defendant no.14. On 22.1.2019 the date on which compromise application Paper No.18 Ga was filed before the appellate court, one Kapil Dev Upadhyay filed an application seeking his impleadment alleging title in respect of 322.66 sq. yards of the suit property on basis of a sale deed dated 18.1.2019 executed in his favour by Narain Das Agrawal, power of attorney holder of Desh Bandhu Kagaji (son of defendant no.13 of Original Suit No.381 of 1987 and defendant no.1 of Original Suit No.800 of 1987) and Manager of Phool Chandra Kagaji HUF. According to him, the original owner of the suit property namely Thakur Madan Mohan Ji Maharaj had executed registered lease deed on 29.12.1987 in favour of Phool Chandra Kagaji HUF with respect to 1320 sq. yards of the suit property. It is also his case that Phool Chandra Kagaji HUF had also obtained a sale deed dated 7.10.1987 (registered on 15.1.1988) in respect of the same land from the Bhargavas, through whom the plaintiff also claims title to the suit property. It is common ground between the parties that the predecessor of Bhargava family namely Late Gird
