2007 PLP 297 (CLC)

SARDAR MUHAMMAD NAWAZ KHAN, C.J.

Through this appeal, the appellants assail the validity of judgment and decree 3aled A July 24, 2000, passed by learned Additional District Judge, Muzaffarabad whereby the judgment and decree recorded by Senior Civil Judge, Muzaffarabad on March 27, 2000 is allowed to continue. This case has a chequered history behind it. Initially, Molvi Ghulam Mohi-ud-Din, father of the appellants herein purchased Survey Nos.72 and 153 total measuring 29 Kanals, two Marlas situated at Prem Kote, Tehsil and District Muzaffarabad, through a sale-deed, dated March 30, 1961, executed in his favour by Rehmat Din (respondent) and Nizam Din, sons of Raj Muhammad. Respondent, 'Rehmat Din, challenged this sale-deed through his next friend Afsar Din, son of Patch Muhammad, in the Court of Sub-Judge, Muzaffarabad by filing a regular suit. During pendency of this suit, parties arrived at a compromise in the following terms:-- The learned trial Judge allowed the compromise and passed following order:-- Mr. Rehmat Din, respondent No.1, challenged the compromise decree, dated January 15, 1962 through a review petition before the trial Court. His review petition succeeded, consequently the learned trial Judge, through his order, dated February 30, 1963, cancelled the compromise decree. The father of present appellants, feeling aggrieved by the order of the learned trial Court dated February 30, 1963, filed a revision petition before the High Court with success. Resultantly, through order of the High Court, dated January 28, 1964, the compromise decree dated January 15, 1962 was restored with the following observation:-- "The learned Sub-Judge has written in his judgment that Afsar Din had injured the interest of the minor plaintiff and it has also been strenuously pressed by the learned counsel for the minor plaintiff-respondent that Afsar Din had injured the interest of the minor by getting a decree passed in his own favour also while he had no share in the land sold at all. I have to see if Afsar Din who had instituted the suit challenging the validity of the sale-deed had in any way injured the interest of the minor plaintiff by getting a compromise decree passed. It is entered in para.3 of the plaint that the plaintiffs and defendants Nos.2 to 9 own lands in common Khatha in village Prem Kole; and that the average of the entire Khaweits is 87 Kanals and 6 Marlas out of which the 1/3rd share amounting to 29 Kanals, 2 Marlas is entered under the ownership of plaintiff No.1 (Rahmat Din minor) and defendant No.2 (Nizam-ud-Din). Nizam-ud-Din, the brother of Rehmat Din the minor plaintiff, sold his and Rahmat Din's entire share amounting to 29 Kanals, 2 Marlas out of Survey Nos.72 and 153 (19 Kanals and 18 Marlas out of Khasra Na.72 and The entire Khasra No.153 measuring 9 Kanals, 4 Marlas). Afsar Din only claims' to be a Shareek-i-Khata in the suit-land which undoubtedly he is. According to the terms of the compromise deed dated January 15, 1962, the defendant agreed that the decree prayed for in the plaint be passed in favour of the plaintiff subject to the condition that Afsar Din gives his own land Khasra No.154/1 measuring 9 Kanals, 3 Marlas and Khasra No.452 measuring 6 Kanals and 8 Marlas to Ghulam Mohi-ud-Din of which Ghulam Mohi-ud-Din shall become the owner and in addition to this he also agreed to pay Rs.580 to Ghulam Mohi-ud-Din from his own pocket. These are the terms of the compromise deed and in accordance with these terms the compromise decree was passed. It is clear from the terms of the compromise and the compromise decree that the sale-deed v executed by Nizam-ud-Din on his own behalf as well as on behalf of his minor brother Rahmat Din plaintiff in favour of Ghulam Mohi-ud-Din stands cancelled since it has been declared to be null and void in accordance with the compromise deed. The result is that the names of Rahmat Din and Nizam-ud-Din shall be restored in the Jamabandi so far as the suit land measuring 29 Kanals, 2 Marlas goes. The compromise decree creates no interest in the land sold in favour of Afsar Din. The sale-deed stands cancelled and the land had been restored to the original owners who were the vendors. Afsar Din, the next friend, does not derive any benefit from this compromise. It is very good of him to give his own land and to give Rs.580 from his own pocket to the vendee in order to get the sale-deed of the land of his nephews cancelled. If anybody has suffered by this compromise he is Afsar Din and not Rahmat Din, the minor plaintiff. I fail to understand how Rahmat Din, the minor plaintiff, can be said to be a person aggrieved by the compromise decree within the meaning of Order XLVII, rule

1. His claim has been decreed and he is not a person aggrieved, therefore, the learned Sub-Judge was wrong in accepting the review petition and setting aside the compromise decree. Accepting the revision petition, the order of the Sub-Judge dated February 20, 1963 is set aside with the result that the compromise decree, dated January 15, 1962 stands restored. The parties shall bear their own costs throughout in the peculiar circumstances of the case." After decision by the High Court, a Mutation bearing No.460 was sanctioned in favour of the appellants on July 20, 1964, however, while sanctioning this mutation, the concerned official entered Nizam-ud-Din son of Raj Muhammad, as one of the owners in Survey Nos.154, 154/1 and 452 measuring 15 Kanals and 11 Marlas (suit-land at present). The appellants feeling aggrieved by the entry of Nizam-ud-Din in the mutation, filed a revision petition before Commissioner Revenue for its correction. Their revision petition was dismissed on the ground of limitation, however, on a further revision petition before Financial Commissioner, they succeeded. Respondent No. 1 challenged the order of Financial Commissioner before the Board of Revenue with no success. As a result of it, Mutation No.867 was sanctioned in favour of the appellants in view of the order of the High Court. Meanwhile the father of the appellants died. Respondents, according to the appellants, forcibly occupied the suit-land. The appellants brought a suit for possession with a prayer for perpetual injunction against the respondents in the Court of Civil Judge. During pendency of this suit, the respondents also filed a cross-suit seeking declaration for cancellation of mutation sanctioned in favour of the appellants, after the decision of Financial Commissioner. Both the suits were consolidated by the trial Court. The learned trial Judge, after due process of law, allowed the suit by the respondents and dismissed the suit by the appellants. On appeal, the learned District Judge made over the same to Additional District Judge who, after hearing the parties, dismissed the appeal by allowing the judgment and decree passed by the learned trial Judge to continue, hence this appeal. The learned counsel for the appellants assailed the findings of the Courts below and contended that both the Courts fell in error while recording their findings. According to him, the findings of the Courts below were result of misreading and non-reading of evidence. It was further submitted that both the Courts failed to appreciate the compromise deed between the parties in view of the law on the subject of compromise. The compromise, reached between the parties clearly indicated that the suit-land was transferred by Afsar Din in favour of father of the appellants, as consideration for giving up the land sold by Rehmat Din and Nizam Din through sale-deed in favour of father of the appellants, the learned counsel maintained. Though the trial Court, while recording compromise decree, did not mention the suit-land as ownership of the father of the appellants, yet it was the consideration for which the sale-deed in favour of father of the appellants was cancelled on account of compromise. Order XXIII, C.P.C. allowed the trial Court to include the suit-land in the compromise decree, but on account of some misunderstanding about law, the trial Court failed to do the needful at the time of compromise, the learned counsel argued. The learned counsel also attacked the findings of the Courts below on the question of limitation and submitted that the suit by the appellants was within time, but the Courts below by declaring the suit as time-barred, travelled in the wrong direction, therefore, their findings need rectification by this Court. Conversely the learned counsel representing the respondents, while supporting the impugned judgments and decrees of the Courts below, contended that the suit-land was not included in the compromise decree dated January 15, 1962, therefore, the suit by the appellants, seeking possession of the suit-land, was rightly disallowed by the Courts below. The father of the appellants neither the appellants attempted for transfer of the suit-land in their favour through recognized modes of transfer of property. According to the learned Advocate, the High Court upheld the decree dated January 15, 1962, therefore, the Mutation No.867 in favour of the appellants was unlawful and had rightly been cancelled through the impugned judgment and decree. The learned counsel did not support the findings of the Courts below on the ground of limitation. However, he pressed into service to dismiss the appeal on the ground of evidence on record. After hearing the learned counsel for the parties, the record has been examined carefully. The perusal of the compromise deed, reproduced in the earlier part of this judgment, shows that father of the appellants agreed to cancellation of sale-deed in his favour with the consideration mentioned in clause (3) of the compromise deed. He is found to have qualified the compromise (cancellation of sale-deed) with the condition laid down in clause (3) of the compromise. Through the said clause, Mr. Afsar Din transferred the suit-land in favour of father of the appellants in lieu of property mentioned in the sale-deed. The trial Court, at the relevant time, allowed this compromise being lawful, however, while recording the compromise decree, only Survey Nos.72 and 153, measuring 29 Kanals and 2 Marlas were shown to be the ownership of Rehmat Din respondent who was then minor. The learned Judge, while passing the compromise decree, failed to attend this important aspect of the compromise that the suit-land was consideration for cancellation of the sale-deed and it related to the suit as provided under Order XXIII, C.P.C. This failure on the part of the learned Judge, at the time of compromise, resulted into present controversy which remained pending for its resolution for couple of years. The Courts below are found to have made another ground as basis to dismiss the suit by the appellants. According to them, Mr. Afsar Din who transferred the suit-land through compromise deed was not the owner of the same; therefore, the suit for possession by the appellants was liable to he dismissed and they did so accordingly. This observation of the Courts below is result of misreading and non-reading of evidence on the following grounds:-- (1) firstly the High Court in the earlier round of litigation is found to have held that Afsar Din was owner in the joint estate and he was competent to alienate the suit-land in favour of father of the appellants; (2) the evidence on record like Misl-e-Haqiyyat Exh.D.E., Mutation No.272 Exh.D.D., Mutation No.253 and Jamabandi Exh.P.W./3 clearly indicate that Afsar Din was owner in the joint property in Khewat Nos.47 and

49. He was fully competent to transfer the suit-land in favour of father of the appellants. He did so, as compromise deed shows. The respondents Rehmat Din and others are owners to the extent of 1/3rd in the joint estate and their share is there after cancellation of the sale-deed in favour of the father of the appellants. They are claiming the share of Afsar Din also through present litigation, which under law is not possible. The controversy whether compromise deed, through which the suit-land was transferred to the father of the appellants, could be made part of the compromise decree dated January 15, 1962, needs resolution in view of Order XXIII, C.P.C. In this regard, it is clear that the suit-land transferred by Afsar Din in favour of father of the appellants through clause (3) of the compromise deed was intimately connected with the compromise. The words used in Order XXIII(3) "relates to the suit" are very important in this respect. It means that if anything is found connected with the compromise, it is to be accepted as term of compromise and under law it is to be included in the compromise decree; but unfortunately, it has not been done in the present case which resulted into this long and long litigation. The above view of this Court finds support from case-law AIR 1932 Bom. 466 in which the following observation has been made:-- "So far as it relates to the suit under Order XXIII, rule 3, but where the compromise is plainly outside the suit, the Court may refuse to incorporate it in the decree; but where it is a consideration of the compromise and therefore, intimately connected with it, the words "relates to the suit" are wide enough to embrace such a term .of the compromise, as for instance, the consideration for the compromise, even though this consideration may be entirely outside the scope of the suit and relate to property which was never in question in the suit itself. Under Order XXIII, rule 3, the Court has a duty and not' a discretion to record a lawful compromise subject possibly to an inherent power of refusal where a substantial injustice would be worked." Therefore, the conclusion is that the suit-land being consideration for cancellation of sale-deed in favour of father of the appellants was required to be incorporated in the compromise decree, being a connected matter in the compromise. However, its failure now stands rectified by holding that the appellants are rightful owners of the suit-land in view of the compromise deed dated January 15, 1962. The next question which needs resolution is about limitation. Both the Courts below, while deciding Issue No.2 unanimously arrived at the conclusion that the appellants were in possession of the suit-land and were dispossessed in the year 1989. This finding has not been challenged by the other side. Therefore, irresistible conclusion is that the appellants were in possession of the suit-land till 1989 and when they were dispossessed they brought the present suit in the year 1990. Thus, when a full owner, being in possession of the suit-land, was dispossessed in the year 1989 and brought his suit in the year 1990, then by no stretch of imagination it could be said that there suit was time-barred. The upshot of the above discussion is that the appellants have satisfactorily proved themselves to be the owner of the suit-land and they are also found to have bring this suit within time, therefore, the impugned judgments and decrees are set aside by allowing this appeal. The suit by the appellants stands decreed in their favour whereas the cross-suit, by the respondents is hereby disallowed. N.B.T./14/HC(AJ&K) Appeal allowed.