1992 PLP 1109 (SCMR)

Muzaffar Hassan, Advocate‑on‑Record for Respondents Nos.3 and

4. Moinuddin Ahmed, Advocate Supreme Court, Faizanul Haq, Advocate‑on‑Record for Respondent No. 1 Date of hearing: 11th June, 1991. ABDUL QADEER CHAUDHRY, J.‑‑‑This appeal by leave of ‑the Court is directed against the order of the Division Bench of the High Court, dated 9‑5‑1984.

2. The facts, in brief, are that Messrs Noor Sons, plaintiffs, filed a suit on 25‑10‑1970 against respondent No.1 seeking possession of plot measuring 352 sq. yds. and mesne profits on the averments that the plot in question was transferred to them and respondent No.1 Abdul Quddus Bihari trespassed the said plot of the plaintiffs. The suit was contested by respondent No.l. It was stated that the transfer in favour of Messrs Noor Sons was illegal. 1t was further stated that the claim of possession was not maintainable because the plaintiffs had no right or title. During the pendency of the suit, the plaintiffs Noor Sons sold the property to the present appellants and their names were substituted in place of the original plaintiffs on 20‑12‑1976. Issues were framed and the evidence of the parties was recorded partly when in 1982 an application under Order 1, Rule 10, C.P.C. was filed by the plaintiffs for impleading respondents 2 to 5 as defendants. This application was allowed by the Court and the plaint was amended and respondents 2 to 5 were joined. On 3‑12‑1983 the appellants and Muhammad Hussain, respondent No.2 filed an application under Order 23, Rule 3, C.P.C. requesting for a consent decree against defendant No.2 in terms of a compromise. This application was allowed by the learned Single Judge and the suit was decreed against the defendant No.2 on the aforesaid compromise. It was done without any notice to respondent No.l. According to him, he came to know about this order when execution proceedings were in progress. The respondent No.l, therefore, submitted an application in the High Court that the order of compromise may be recalled and he should be heard. A learned Single Judge accepted‑this application and directed that the compromise application filed by the plaintiffs and respondent No.2 may be fixed for consideration after notice to defendant No.1 and to any other party affected thereby. This order was challenged in appeal before a Division Bench of the High Court by the appellants but their appeal was dismissed. The reasons which weighed with the High Court in dismissing the appeal of the appellants are as hereunder:‑‑‑ "On the other hand, we are of the view that the manner in which respondents 2 to 5 were joined after thirteen years of the filing of the original suit, and the ex parte nature of compromise application, by itself, is sufficient to uphold the order of the learned Single Judge, because these are circumstances, which have to be examined a little deeper in order to infuse confidence in the minds of all the litigating parties. In these circumstances, we take the view that the order of the learned Single Judge is eminently justified and calls for no interference. This appeal is, therefore, dismissed in limine." Leave was granted to the appellants to consider `whether the decree passed on compromise between the plaintiffs and one of the defendants, in respect of portion of the plot in such defendant's possession, could be set aside by the learned Single Judge on the ground that no notice was given to the respondent No. l'.

4. Learned counsel for the appellants submitted that a compromise had been arrived at between the plaintiffs and defendant No.2 and a partial decree was passed in favour of the plaintiffs in respect of a part of the property, therefore, it was not necessary to issue notice to the respondent No.l. The facts of the case would show that the plaintiffs in paras. 12 and 13 of the amended plaint have stated as follows:‑ "

12. The defendant No.1 had been from time to time, letting out the parts of the land of the aforesaid sub‑plot of the plaintiffs to various persons for storing goods and for parking motor rikshaws and had been receiving handsome amounts from them as compensation/charges. The persons to whom the Defendant No.l used to let out the parts of the said land were changing from time to time.

13. Since about 1979 the defendants Nos.2 to 4 are in continuous occupation of the said land of the plaintiffs, apparently through' Defendant No.l or with his connivance, and/or, in any case, illegally and wrongfully."

5. Thus, according to the plaintiffs themselves, the defendants 2 to 4 are in occupation of the plot through defendant No.l. The possession of the entire plot was claimed as a relief in the suit. The defendant No.l has denied the title of the plaintiffs to the plot in' question. It, therefore, cannot be said that no notice was required to be issued to defendant No.l before disposal of the compromise application. In the compromise application, it has been stated that defendant No.2 admits that the plaintiffs are the absolute owners of the plot of land and the defendant No.2 shall deliver the vacant and physical possession of the entire aforesaid portion of the suit land to the plaintiffs. In view of above facts, the contention of the learned counsel that a decree about a piece of plot of land was passed is contrary to what has been stated in the compromise application. The possession of the entire plot was claimed through compromise application. In this compromise application, the plaintiffs were declared to be the absolute owners of the plot which has been disputed by the defendant No.l. On account of the above stated facts, the impugned order is just, fair and legal.

6. For the foregoing reasons, this appeal has no force. The same is dismissed leaving the parties to bear their own costs. AA./A‑919/S Appeal dismissed